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N.D v. M.D

November 30, 2012

N.D., PLAINTIFF-APPELLANT,
v.
M.D., DEFENDANT-RESPONDENT.
N.D., PLAINTIFF-RESPONDENT,
v.
M.D., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-1345-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 2, 2012

Before Judges Reisner, Yannotti and Hoffman.

Plaintiff N.D. appeals from a Final Judgment of Divorce dated June 30, 2011.*fn1 His ex-wife, defendant M.D., likewise appeals from the judgment. Plaintiff appeals from the order's provisions awarding defendant alimony and counsel fees, granting her sole custody of the couple's children, and granting her a divorce on extreme cruelty grounds. Defendant appeals from the provision of the order addressing reunification of the children with plaintiff. We have consolidated the appeals for purposes of this opinion, and, finding no merit in either appeal, we affirm the judgment in its entirety.

I Background

We briefly summarize the background leading up to the divorce trial. The parties married in June 2000, and have two children, a daughter born in 2001 and a son born in 2003. Both parties are highly educated professionals. Plaintiff earns about $200,000 per year; defendant will likely be able to earn about half that sum when she returns to the work force full-time.

On July 26, 2007, plaintiff filed a complaint for divorce from defendant on the basis of extreme cruelty. He alleged that defendant was not emotionally supportive of him and that during the marriage defendant had alienated him from their two children, refusing to allow him to be alone with them or to have any input into decisions regarding them. He alleged that in May 2006 and May 2007, defendant made false complaints to the Division of Youth and Family Services (DYFS);*fn2 he contended that, in order to keep him from seeing the children, plaintiff falsely alleged that he had sexually abused them. As a result of the DYFS complaint, plaintiff was indicted for sexual assault and endangering the welfare of a child. In addition to seeking a divorce, plaintiff's complaint charged defendant with defamation, malicious prosecution and intentional infliction of emotional distress based on her allegedly false complaints that he sexually abused the children.

On October 17, 2007, defendant filed an answer denying the majority of plaintiff's allegations and filing a counterclaim for divorce on the basis of extreme cruelty. Thereafter, on plaintiff's motion, the Family Part stayed the matrimonial action while the criminal case proceeded.

On April 23, 2009, pursuant to a plea agreement, plaintiff pled guilty to one count of child neglect and one count of child endangerment, both of which involved only the daughter. As part of the plea deal, plaintiff agreed not to deny, in any future proceeding, that he committed the acts to which he admitted under oath during the plea allocution. The sentencing judge required plaintiff to complete thirty-six months in the pre-trial intervention program (PTI) and ordered him to undergo sex-specific counseling. If plaintiff successfully completed the PTI program, the charges against him would be dismissed. The criminal judge precluded defendant from having contact with his children, unless the contact occurred by way of counselor-led and supervised sessions.

At the end of 2009, plaintiff filed a motion with the Family Part, seeking visitation with his children. He and his attorney told the court that in the criminal matter, the court had not imposed any restrictions on his having contact with his children. The Family Part judge reserved decision until she reviewed documents from DYFS and documents relating to the criminal matter. The judge denied plaintiff's request for visitation on December 29, 2009, explaining that contrary to plaintiff's and his attorney's representations, the criminal court had imposed restrictions on plaintiff's ability to have contact with his children, including sex-specific counseling and approval of his counselor.

On February 22, 2010, Judge Ronny Jo Siegel, who was then presiding over the divorce case, appointed a psychologist, Dr. Daniel A. Sugarman, to evaluate plaintiff and provide an opinion on whether he should be reunited with his children. The following month the judge ordered DYFS to release to the court all documents related to its investigation of plaintiff.

On July 7, 2010, Dr. Sugarman issued an opinion recommending that reunification between plaintiff and the children begin as soon as possible. He opined that the children were suffering from parental alienation syndrome and that the complete absence of contact with plaintiff was harmful to them.

The following month, testimony in the divorce trial began. Around the same time, defendant moved to exclude Dr. Sugarman's report and preclude his trial testimony. Defendant contended that Dr. Sugarman was biased against her because, without notice to defendant or the court, plaintiff had provided Dr. Sugarman with information favorable to his case. Defendant also complained that Dr. Sugarman had not reviewed the transcript of defendant's plea allocution. The court scheduled oral argument, but neither party appeared on the designated date. Before rescheduling the argument, the court ordered the parties to provide Dr. Sugarman with additional information, and permitted defendant to take his deposition.

On September 21, 2010, Dr. Sugarman issued a supplemental report after reviewing additional documents relevant to the sexual abuse allegations. He once again recommended reunification of plaintiff and the children. The court rescheduled oral argument of defendant's motion to preclude Dr. Sugarman from testifying at the trial, and denied the motion on October 29, 2010, ...


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