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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...