May 24, 2012
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FD-13-0581-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 5, 2012
Before Judges Alvarez and Skillman.
Plaintiff K.P. appeals from a January 21, 2011 order granting defendant F.U. unsupervised parenting time with the parties' twelve-year-old daughter. Both parties are self-represented on appeal, as they were during the proceedings in the Family Part which resulted in this order. After reviewing the record, for the reasons that follow, we reverse and reinstate Judge Kilgallen's June 28, 2010 order, requiring defendant's parenting time to be supervised by the Monmouth County Supervised Visitation Program.
Judge Kilgallen's order issued after a plenary hearing and interview with the child. As set forth in her statement of reasons appended to the order:
The Plaintiff has requested that the Court suspend the Defendant's parenting time with [the child]. She claims that the Defendant failed to appear at the police station for scheduled parenting time exchanges. This fact was acknowledged by the Defendant during oral argument. The Defendant indicated that he was too upset about the child support situation decision to exercise his parenting time. This has hurt and confused [the child].
Both parties sought to have the Court interview [the child]. [The child] arrived at the Court House for an interview on June 15, 2010. She appeared somewhat shy, but had no problem meeting with me. She is a very pretty and very sweet young girl.
At the Plenary Hearing, the Plaintiff testified about [the child]'s difficulties[,] . . . ADHD, Obsessive Compulsive Disorder and anger issues. Although [the child] displayed no anger, the Court could see that she had some limitations. However, she was able to clearly articulate her feelings. [The child] stated that her father always took her to the Shop Rite supermarket for their visits. She said that they would sit in the back of the store and eat something with the Defendant's friend Tony. [The child] said that her father and Tony rarely spoke to her. She seemed upset by the fact that her father used the "F" word a lot.
She recalled that on one occasion when she got up to use the bathroom, her father told her to "sit the 'F' down." [The child] said that her father had told her that he was going to take her away from her mother, which upset her. She also stated that her father would play music in the car which contained bad words.
Therefore, the Court will Order that the Defendant's parenting time shall be supervised for at least a twelve week period th[r]ough the Monmouth County Supervised Visitation Program to confirm that the Defendant appears on time and on a regularly scheduled basis and to confirm that the Defendant does not say anything inappropriate to [the child].
Both before and after that decision, the parties have engaged in extensive vituperous motion practice, not only with regard to visitation, but as to defendant's obligation to pay child support.
A little over two months after the entry of Judge Kilgallen's order, on September 10, 2010, defendant filed a notice of motion seeking to: reduce child support - due to no job. I have been unemployed for over 8 years. I live off of a certain fixed amount a year.
I have tried for several years to obtain visitation to see my daughter. I would like to know my daughter['s] address in case of an emergency. I would like to know where she is residing.
In support of this application, defendant submitted a twenty-four paragraph "notice of cross motion[,]" essentially an uncertified and unsworn recitation of events. He reiterated that plaintiff refused to allow him time with his child, and he makes no mention whatsoever of the plenary hearing and Judge Kilgallen's order of June 28, 2010.
Unfortunately, plaintiff's unsworn and uncertified twenty-three-plus paragraph response also omitted any mention of the order. She made a veiled reference to it in paragraph twenty-one, stating in passing that "when probation called him to set up supervised visits he refuse[d] to exercise the parenting time." Even in a supplemental submission, plaintiff did not specifically mention Judge Kilgallen's order.
On October 14, 2010, the parties appeared before a different judge, not Judge Kilgallen. Plaintiff mentioned that Judge Kilgallen had ordered supervised visitation, but defendant denied it. The judge did not inquire further, and awarded defendant unsupervised visitation.
At the end of the hearing, that judge reprimanded plaintiff for making offensive remarks to court staff. As a result, plaintiff immediately filed a motion to "change judges[,]" and for reconsideration of the parenting time order. This triggered a wave of nearly weekly applications, cross-applications, and uncertified filings by both parties until January 21, 2011, when a third judge entered an order enforcing the second judge's order. This third judge was also seemingly unaware of the plenary hearing and Judge Kilgallen's supervised visitation order. On March 8, 2011, after more filings, this judge entered an order enforcing the orders of October 14, 2010 and January 21, 2011.*fn2
We review findings of the Family Part with particular deference in light of the "special expertise in the field of domestic relations" of the matrimonial courts. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998).
But as always, the primary consideration in a case involving custody or parenting time is the best interest of the child. V.C. v. M.J.B., 163 N.J. 200, 227-28, cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000); Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). The best-interest standard focuses on the "safety, happiness, physical, mental and moral welfare of the child." Fantony v. Fantony, 21 N.J. 525, 536 (1956); see N.J.S.A. 9:2-4c (setting forth a non-exhaustive list of relevant factors). Once an arrangement is in place, modification is appropriate only when there is a change in circumstances warranting it, i.e., a development that affects the welfare of the child. Beck v. Beck, 86 N.J. 480, 496 n.8 (1981); Innes v. Carrascosa, 391 N.J. Super. 453, 501 (App. Div. 2007) (citing Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div.), certif. denied, 28 N.J. 147 (1958)).
Where a post-judgment motion raises a question about visitation and the pertinent facts are disputed "or where a plenary hearing would assist the court in deciding on a visitation plan, such a hearing should be held." P.T. v. M.S., 325 N.J. Super. 193, 214 (App. Div. 1999); Fusco v. Fusco, 186 N.J. Super. 321, 327 (App. Div. 1982). It is ironic that in this case such a plenary hearing actually occurred, in addition to an interview with the child, and testimony elicited prior to the entry of an order. And yet after the hearing, interview, and entry of the order, the outcome was completely overlooked by both judges who followed and the parties themselves, to the detriment of the child.
The only order entered after the development of an adequate record and thoughtful consideration of the child's needs is the June 28, 2010 order issued by Judge Kilgallen. The subsequent orders issued in an informational void.
Furthermore, at no time did defendant establish a change of circumstances which warranted modification. The judge who entered an order of unsupervised visitation, and the judge who enforced the order, did so on limited information improperly conveyed by the parties.
Tempting as it is to leave these parents in the situation in which they find themselves, as they have engaged in litigation as a means of waging war against each other, rather than achieving dispute resolution, we will not do so. This is a child with special needs and particular vulnerabilities who was frightened and upset as a result of unsupervised contact with her father. It is not in her best interest to have such contact with her father until he establishes a track record while supervised. Accordingly, we reinstate Judge Kilgallen's June 28, 2010 order requiring defendant's visitation to be supervised by the Monmouth County Supervised Visitation Program, and vacate all subsequent orders permitting defendant unsupervised parenting time with the child.