September 10, 2012
J.C.W., PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
W.L.W., DEFENDANT-APPELLANT/ CROSS-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-965-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued May 31, 2012
Before Judges Payne, Reisner and Simonelli.
Defendant W.L.W. appeals from those parts of two August 5, 2011 Family Part orders, which denied his motion for an evaluation of his son, J.W., to determine the issue of reunification, and awarded plaintiff J.C.W. counsel fees and costs. Plaintiff cross-appeals from the amount of counsel fees and costs awarded. We affirm in part, reverse in part, and remand for further proceedings.
The parties were married in 1981, and have four children, W.W., C.W., M.W. and J.W.*fn1 In November 2004, plaintiff filed a domestic violence complaint against defendant, alleging that he physically, mentally and emotionally abused her over an eleven-year period, and assaulted her on November 1, 2004. On November 17, 2004, the court entered a final restraining order (FRO) against defendant after he admitted he had assaulted plaintiff. The court granted plaintiff custody of M.W. and J.W., who were both minors at the time, and granted defendant supervised parenting time.
It was later discovered that defendant had sexually abused J.W. multiple times when J.W. was between the ages of four and seven years old. On January 13, 2005, the court entered an amended FRO suspending defendant's supervised parenting time and restraining him from having contact with the minor children. On January 24, 2005, the New Jersey Division of Youth and Family Services (Division)*fn2 filed a complaint, seeking authorization to investigate the matter. The Division's complaint was later dismissed but the FRO remained in effect.
A grand jury indicted defendant for second- and third-degree aggravated assault (of plaintiff), N.J.S.A. 2C:12-1b(1) and (7), and fourth-degree abuse of a minor (J.W.), N.J.S.A. 9:6-3, a non-Megan's Law offense. The Division then filed a complaint, seeking custody and supervision of the children and to restrain defendant from having contact with them. Pursuant to a September 19, 2005 order, defendant was restrained from having contact with the children until further court order.
Defendant eventually pled guilty to third-degree aggravated assault and fourth-degree abuse of a minor. At his plea hearing, defendant did not deny he had sexually abused J.W. Despite later claiming that his alcohol abuse rendered him without memory of what he did to J.W., defendant admitted he could not deny the sexual abuse allegations.
J.W. gave the following victim-impact statement at defendant's sentencing:
I wanted to say how I feel. I feel confused. The first time my father did what he did, I was thinking, why are you doing this to me. I was at our old house . . . when he first started. Sometimes he did it in the morning, and we all knew that he never drank in the morning.
[Defendant] said his father did it to him. Why did his father do that to him? And why did my father do that to me? It hurts me that he did it. My life would have been different, if he had not. It upsets me to think about what he did to my mom and my family. He really injured my mom, and he was abusive to my sisters. And he did things to me and hurt [W.W.].
He made [W.W.] go away from home. His anger before [W.W.] left made me very afraid. The bad memories of what happened to me, make me feel sick. I have a question. Why would someone who has done something wrong, can they get a lawyer and pretend that they didn't do it, and then get people to believe them?
At sentencing on May 24, 2006, the trial judge sentenced defendant to a five-year supervised probationary term and a one-hundred-and-eighty-day term of imprisonment as a condition of probation. The judge also imposed numerous conditions of probation, including defendant's attendance at Alcoholics Anonymous (AA) or another approved substance abuse treatment program for alcoholism, and psychological counseling, and he ordered defendant to comply with the January 13, 2005 amended FRO and have no contact with the children until further court order.*fn3 Defendant was incarcerated from May 12 to July 27, 2006.
Defendant has had no contact with J.W. since August 2005. On May 18, 2010, defendant filed a motion, seeking parenting time and reunification therapy with J.W., then age fifteen.*fn4
Defendant claimed that he had fully complied with every probationary condition; he was not a pedophile; his sexual contact with J.W. occurred because of his alcohol abuse, he had been sober since November 2004 and had a good prognosis if he maintained sobriety; he continued to attend AA meetings and anger management therapy; he was "a much better person today[,]"; and he wanted to see J.W. To prove changed circumstances, he submitted a letter from his AA sponsor and a letter from a psychologist; however, neither of these individuals addressed whether parenting time and reunification therapy was in J.W.'s best interests or whether defendant was not a threat to the child.
In opposition, plaintiff described the psychological and physical
trauma J.W. suffered as a result of defendant's sexual abuse and
having to attend supervised visits with his father. She submitted a
June 11, 2010 letter from J.W.'s therapist, Jane Smith,*fn5
an expert in sexual abuse, who had treated J.W. from December
2004 to 2007. Smith stated that through intensive and comprehensive
therapy, J.W. had overcome the post-traumatic stress disorder he
suffered as a result of the sexual abuse and witnessing defendant's
verbal and physical abuse of plaintiff, and had also overcome his
symptoms of anxiety, depression, hyper-vigilance, and difficulty
sleeping, separating from his mother, concentrating, and regulating
his emotions. Smith noted that J.W. was now psychologically stable and
physically safe because he had no contact with defendant. She also
expressed her concern that any interaction with defendant would cause
a resurgence of symptoms, and reported that J.W. had "no stated desire
to see or speak to his father."
In his reply certification, defendant admitted that he had "hurt and damaged" J.W., and lamented about "how confused [J.W.] must have been by what [defendant] did." Defendant also acknowledged that Smith had treated J.W.
In an August 16, 2010 oral decision and order, the trial judge denied defendant's motion. After finding that defendant's therapist's letter was a net opinion "of little value," the judge concluded that defendant failed to establish both changed circumstances and that reunification was in J.W.'s best interests. Defendant did not appeal.
A year later, on May 26, 2011, defendant filed a motion, seeking a
reunification evaluation of J.W. by a court-appointed expert to
determine if reunification was in J.W.'s best interests.*fn6
To prove changed circumstances and that he was not a danger
to J.W., defendant submitted his April 22, 2006, September 28, 2010,
and March 7, 2011, psychological evaluations, and a letter from his
therapist; however, none of these documents addressed whether
reunification was in J.W.'s best interests. To the contrary, two of
the psychologists who evaluated defendant disclaimed whether
reunification was appropriate, the third psychologist did not know if
a reunification evaluation was appropriate, and none of them offered a
single potential benefit to J.W. of reunification or a reunification
evaluation, or opined about the possible effect of reunification on
Plaintiff filed a cross-motion, and suggested that the judge interview J.W. in camera, which defendant opposed. In her opposition to defendant's motion, she explained that J.W. had to recommence therapy with Smith as a result of defendant's first motion. She again submitted Smith's June 11, 2010 report, and also submitted Smith's new report, dated July 5, 2011, wherein Smith stated as follows:
As was the case last year when [defendant] requested interaction with [J.W.], this caused [J.W.] to become confused, fearful and upset. He is confused by his father's insistence in attempting to have contact with him. He is fearful that his own wishes of not having any contact with him will go unheard. Finally, he is saddened and angered that his life is interrupted because his father is once again requesting contact.
[J.W.] is distraught and dumbfounded that his father wishes to have contact with him. His memories of the sexual abuse perpetrated upon him by his father are acute and regularly on his mind. He wonders what his father's motives are with respect to his relentless pursuit of interaction with him.
[Defendant] sexually abused his son on several occasions. I can think of no other case in my 15 years of treating sexual abuse, in which a perpetrator was allowed contact with his victim (therapeutically or otherwise). It is just unconscionable. . . [J.W.] is vehemently opposed to having any contact with his father. I strongly recommend that [J.W.] continue to be protected by us and that he have no contact with his father.
In his reply certification, defendant admitted that his past actions were hurtful to plaintiff and his children, his children "suffered greatly" from his actions, there was "no justification" for his behavior, and he was guilty of poor parenting and abusive conduct toward his family. He did not deny that Smith had treated J.W.; rather, he objected to the judge considering her letters based on her alleged partiality as J.W.'s treating therapist.
In an August 5, 2011 oral decision and order, a different judge denied defendant's motion. The judge noted that his parens patriae responsibility required him to focus on J.W.'s, not defendant's, best interests, and to consider the child's safety, happiness, physical, mental, and moral welfare. He found it was "clear and unequivocal" that defendant presented nothing to show changed circumstances, and that Smith's words "speak volumes" about the effect defendant's first motion had on J.W. The judge also considered the factors set forth in N.J.S.A. 9:2-4, and found that the history of violence, and J.W.'s safety, needs, and preferences, were "significant, and they weigh[ed] heavily" against reunification. The judge also awarded plaintiff $5000 for attorney's fees and costs, not the $8059 she had requested. This appeal and cross-appeal followed.
We first address defendant's argument, raised for the first time on appeal, that the judge erred in accepting Smith as a de facto best interests expert and relying on her "net opinion" in violation of Rule 5:3-3 and N.J.R.E. 703(3). We "'will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available' unless the matter involves the trial court's jurisdiction or is of public importance." Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)); see also State v. Robinson, 200 N.J. 1, 20 (2009) (reiterating the principle of not considering an issue raised for the first time on appeal absent an exception). No exception applies here.
Even considering the argument, we conclude it lacks merit. The judge did not rely on Smith as a best interests expert; rather, he relied on her as a fact witness who related her personal observations of J.W.'s reaction to defendant's first motion. In any event, this court has recognized that expert testimony is not necessarily required in a case involving child sexual abuse where the victim testifies to his or her feelings toward the molester and the subsequent emotional damage he or she suffered as a consequence of that abuse. See J.W. v. L.R., 325 N.J. Super. 543, 547 (App. Div. 1999) (observing that "no one [is] better qualified than the victim . . . to testify to her feelings of dread and terror before, during and after" the episodes of abuse). Here, J.W. expressed his feelings toward defendant at the plea hearing and expressed how the sexual abuse had affected him. In addition, defendant admitted in his reply certifications that he had "hurt and damaged" J.W., and he never denied that Smith, a therapist experienced in treating sexual abuse victims, had treated J.W. for several years. Thus, even without Smith's letters, there can be no question that J.W. suffered emotional damage as a consequence of defendant's sexual abuse.
Further, even if the judge had erroneously accepted Smith as a de facto expert, the error was harmless because, as we will discuss later, defendant failed to show changed circumstances that would positively affect J.W.'s best interests or general welfare. See Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div.), certif. denied, 28 N.J. 147 (1958). The judge did not have to rely on Smith's observations to conclude, as a matter of law, that defendant failed to meet his burden of proof. See ibid.; R. 2:10-2 (holding that "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result[.]").
Defendant also argues that he was prejudiced by the judge's reliance on Smith's letters because a consent order prevented him from deposing her, and he had no opportunity to cross-examine her at a hearing. This argument is disingenuous. Defendant never requested a hearing, and there was nothing preventing him from seeking a court order to depose Smith and obtain her records, or issue a subpoena for her attendance and testimony at the motion hearing. Defendant also could have retained an expert to dispute Smith's observations and conclusions, but failed to do so. In addition, defendant challenges the judge's reliance on Smith's letters, which were inadmissible, while ignoring that the psychological evaluations and therapist's letter he submitted to establish changed circumstances were equally inadmissible. Accordingly, we discern no abuse of discretion in the court's reliance on Smith's letters. Brenman v. Demello, 191 N.J. 18, 31 (2007).
Defendant argues that he has shown changed circumstances but he can never show that reunification is in J.W.'s best interests because he has no access to or information about J.W. to conduct a best interests evaluation. We reject this argument.
Our review of a trial court's fact-finding function is limited. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "[F]indings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Ibid. Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. The question is not whether this court would come to a different conclusion were it the trial tribunal. N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002). We intervene only when convinced that the trial judge's factual findings and legal conclusions "'are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Where our review addresses questions of law, "the trial judge's findings are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." Z.P.R., supra, 351 N.J. Super. at 434 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
Our courts recognize that "even a non-custodial parent has the need for the love and affection of his or her child and is entitled to have the parent-child relationship encouraged." Wilke v. Culp, 196 N.J. Super. 487, 499 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985). However, while parental rights are fundamental, they are not inviolable. A parent's custody and parenting time rights may be restricted, or even terminated, where the relationship of the parent with the child causes emotional or physical harm to the child, or where the parent is shown to be unfit. Id. at 496 (citations omitted).
A judgment involving custody and parenting time is subject to modification at any time on the ground of changed circumstances. Sheehan, supra, 71 N.J. Super. at 287. The primary consideration is the best interests of the child and whether there has been a change in circumstances that would affect the child's welfare. Id. at 287-88. The court must place the child's best interests and general welfare first when determining parenting time. V.C. v. M.J.B., 163 N.J. 200, 217-18, cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000). 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 best-interests factors). The party seeking a modification bears the burden of proving changed circumstances that would affect the child's welfare. Sheehan, supra, 51 N.J. Super. at 287.
Defendant's completion of his probation conditions and continued sobriety do not prove changed circumstances that affect J.W.'s welfare. The issue is not whether particular changes benefit the non-custodial parent but whether the changed circumstances positively affect the child's welfare. Ibid. Defendant conflates his personal recovery or redemption with J.W.'s welfare and best interests. Accordingly, we are satisfied that defendant failed to show changed circumstances that would affect J.W.'s welfare.
Defendant has also failed to show that reunification would be in J.W.'s best interests. Although defendant has had no physical access to J.W., he could have sought a court order to obtain Smith's records, depose her, and obtain other information about J.W., such as his school records. Defendant could have retained an expert to review this discovery and potentially render an opinion that reunification would have been in J.W.'s best interests. Defendant did not avail himself of these opportunities. The only evidence he presented was that he no longer abused alcohol, which he claims led him to sexually abuse J.W., and thus, he no longer represented a danger to J.W. The concern, however, is not limited to whether defendant represents a physical threat to J.W. The evidence in this case convinces us that there is an unreasonable risk of further psychological harm to J.W., making reunification against his best interests.
Defendant argues that the award of counsel fees and costs must be reversed because the judge's failed to make findings of fact or state the reasons for the award. On cross-appeal, plaintiff contends that the judge erred in the amount of counsel fees and costs awarded. For the following reasons, we conclude that a remand is required on the issue of counsel fees and costs.
An award of counsel fees and costs in a family action is discretionary. R. 4:42-9(a)(1); R. 5:3-5(c); Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004). Our Supreme Court has held that in awarding counsel fees, the court must consider whether the party requesting the fees is in financial need; whether the party against whom the fees are sought has the ability to pay; the good or bad faith of either party in pursuing or defending the action; the nature and extent of the services rendered; and the reasonableness of the fees.
[Mani v. Mani 183 N.J. 70, 94-95 (2005).]
We will disturb fee determinations "'only on the rarest of occasions, and then only because of a clear abuse of discretion.'" Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). "An abuse of discretion 'arises when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).
In addition, judges must make findings of fact on motions decided by written order. R. 1:7-4. This requires judges to articulate "specific findings of fact and conclusions of law[.]" Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 1:7-4 (2012). "Naked conclusions do not satisfy the purpose of R. 1:7-4[,]" and instead, clear factual findings must be made to support the legal conclusions reached. Curtis v. Finneran, 83 N.J. 563, 570 (1980); Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996). If sufficiently clear factual findings are absent from the record, this court will remand to the trial court for additional findings. See Curtis, supra, 83 N.J. at 571.
In awarding counsel fees in this case, the judge made no factual findings whatsoever relating to plaintiff's financial need, defendant's ability to pay, whether defendant had acted in bad faith in pursuing the second motion, the nature and extent of the services rendered, and the reasonableness of the fees sought. The judge also gave no reasons why he made the award or why he reduced the amount of counsel fees plaintiff had requested. Accordingly, we reverse and remand for reconsideration of plaintiff's request for counsel fees and costs.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.