On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1577-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued November 7, 2012
Before Judges Parrillo and Fasciale.
In this post-judgment matrimonial matter, plaintiff, Y.A.B., appeals from a December 16, 2011 order of the Family Part vacating court-imposed restraints on the parenting time of her former husband, defendant A.C.B., and awarding defendant counsel fees of $7,516.50.
By way of background, the parties were married in 2003 and had two sons together, born in 2004 and 2007. They were divorced on January 11, 2011 by a final judgment (FJD) that incorporated a matrimonial settlement agreement (MSA).
The MSA provides for joint legal custody of the two children, then six- and three-years of age respectively, and designates plaintiff the primary residential custodian. The MSA also specifically states that defendant has a "history of substance abuse" and further stipulates that his parenting time during the pendente lite stage was supervised while defendant underwent alcohol abuse treatment through Alcoholics Anonymous (AA) and therapy.
Article II of the MSA obligated defendant to "continue to attend AA meetings, the number of meetings and duration of attendance shall be at the direction of [his] psychologist." Defendant further agreed that if his psychologist determined that continued treatment through AA was no longer necessary, his psychologist would advise plaintiff of this in writing. Moreover, "[s]hould the Wife believe, in her sole judgment, that the Husband is under the influence of a substance when he appears for parenting time, then the Wife, in her sole discretion may decline to turn the children over to the Husband."
Otherwise, the MSA sets forth a schedule for unsupervised parenting time. Specifically, defendant enjoys parenting time with the children one weekend per month from Friday evening until Sunday evening, and from Saturday at 5:00 p.m. until Sunday at 5:00 p.m. on all other weekends. This is in addition to his weekday parenting time on Tuesday and Thursday evenings.
Notably, defendant has never been denied parenting time because plaintiff suspected him of being under the influence. That is until November 16, 2011, when plaintiff filed an order to show cause (OTSC) alleging that defendant had placed the children at risk and seeking to restrict defendant from having unsupervised contact with the children subject to his undergoing a risk assessment and substance abuse evaluation. In support of her emergent application, plaintiff submitted a report of a private investigator who, over seven days of surveillance in October, had observed defendant purchasing liquor from three stores in one week, confirming plaintiff's own observation of defendant entering a liquor store as recent as October 9, 2011. Plaintiff also submitted photographs defendant posted on Facebook showing him partying at a bar on October 26, 2011. In addition, according to plaintiff, defendant had been photographed holding a bottle of beer at a child's birthday party hosted by a mutual friend only five days after their divorce. This same friend also told plaintiff in March 2011 that defendant continued to consume alcohol and that defendant's girlfriend had recently broken up with him because of his continued alcohol abuse. Defendant's girlfriend also supposedly told the friend that she found a cup of alcohol in defendant's home while he was driving the children back to plaintiff.
On the same day it was filed, the Family Part judge denied plaintiff's OTSC on procedural grounds, namely, the order was not accompanied by a verified complaint, Rule 4:67-1, and plaintiff had not served the order on defendant or his counsel, Rule 4:67-3; Rule 5:4-3(b). Several days later, on November 22, 2011, following a conference on November 18, 2011,*fn1 the court entered an order converting plaintiff's OTSC into a motion returnable December 16, 2011. Pending the return date, defendant consented to having his parenting time supervised by his parents and agreed not to drive the children.*fn2 The order also gave notice that plaintiff would move to make these restraints permanent and to compel defendant to undergo a substance abuse evaluation and risk assessment.
Defendant opposed the motion and in his responsive certification, denied consuming alcohol and represented that he has been sober "since April 4, 2010"; acknowledged suffering from substance abuse and claimed to go to AA meetings once or twice per week; admitted purchasing alcohol as confirmed by plaintiff's private investigator, but for other people; admitted that the photographs he posted on Facebook showing him at a bar in October 2011 were accurate, but denied drinking any alcohol; and asserted that the beer he was seen holding in another photograph was for his girlfriend.
Thereafter, on December 12, 2011, plaintiff proffered a certification from defendant's ex-girlfriend who described defendant's drinking at least as of March 2011, when she broke up with him. Because the certification was out-of-time, Rule 5:5-4(c) (requiring service of all papers responding to opposition to be filed "not later than 8 days before the return date"), the judge declined to formally accept the filing, although he read and considered its contents and found that it "didn't . . . add anything because of the time frame we are talking about."
Following argument, the court denied plaintiff's request in its entirety, reinstated defendant's parenting time, and awarded him compensatory parenting time. In doing so, the court found plaintiff's application to be unsupported and without merit:
I find this application to be frivolous on its face. And the reason I say that is because there is no question that [defendant] has a substance abuse problem. He acknowledged that in the ...