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R.C., N/K/A R.P v. P.J.C.*Fn1

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 9, 2013

R.C., N/K/A R.P., PLAINTIFF-RESPONDENT,
v.
P.J.C.*FN1 , DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-198-11E.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 4, 2012

Before Judges Yannotti and Hoffman.

Defendant appeals from an order entered by the Family Part on November 21, 2011, on certain post-judgment motions filed by the parties. Defendant also appeals from an order entered on February 22, 2012, denying his motion for reconsideration of the November 21, 2011 order. We affirm in part, reverse in part and remand for further proceedings.

The parties were married on July 14, 1995, and they had two children: P.J.C., Jr., who was born in January 1999; and A.R.C., who was born in September 2007. The marriage was dissolved by a judgment of divorce filed on April 28, 2011, which incorporated a Property Settlement Agreement (PSA) between the parties. According to the PSA, custody and parenting time issues had been resolved by a consent order, with an attached memorandum of understanding (MOU). It appears that the parties agreed that plaintiff would be the parent of primary residential custody, and defendant would have parenting time, as spelled out in the MOU.

On September 26, 2011, defendant filed a motion in aid of litigant's rights. He alleged that plaintiff violated the PSA by allowing her "significant other" to spend nights at plaintiff's home in the presence of the children. Defendant alleged that, in doing so, plaintiff also violated the PSA by conducting herself in a manner that was not consistent with the best interests of the children.

Defendant asked the court to order counseling for himself and his son, and counseling for his daughter "as needed." He also asked the court to require plaintiff to bear the cost of the counseling, hold plaintiff in contempt, impose equitable and monetary relief, and award him counsel fees.

Plaintiff opposed defendant's motion and filed a cross-motion seeking an order requiring defendant to undergo a psychological evaluation and therapy "if recommended." She additionally sought an order requiring defendant to reimburse her for certain child-related activities, and for the cost of A.R.C.'s attendance at preschool. Plaintiff also sought an award of counsel fees.

In support of her cross-motion, plaintiff submitted a certification in which she stated, among other things, that defendant and P.J.C., Jr., who was then twelve-years-old, had "a horrible relationship" which deteriorated after the divorce. She said defendant had a "very controlling arrogant personality" and always had been disrespectful to her and "anyone he feels beneath him." According to plaintiff, P.J.C., Jr. had observed his father demonstrate that "it is acceptable to abuse and demean others and treat people poorly."

Plaintiff also stated that P.J.C., Jr. demonstrated anger and frustration with defendant prior to the divorce. She said the boy had seen defendant call her "a slut" and say that she was "sleeping with other men[.]" Before the divorce, P.J.C., Jr. began counseling with a psychologist, in an attempt to foster a better relationship with defendant, but the boy later refused to continue with the counseling.

Plaintiff stated that, after the divorce, she hoped P.J.C., Jr.'s feelings about defendant would change for the better and they could "all move forward in a positive direction." However, defendant's behavior did not improve, and the children witnessed defendant's anger. Plaintiff claimed that P.J.C., Jr.'s time with defendant was "always stressful" and he began to demonstrate even more anger and resentment towards defendant.

Plaintiff additionally stated that she thought it would be inappropriate to require P.J.C., Jr. to engage in therapy until defendant first received a professional, psychological evaluation and "help" so that he could understand his own emotions and inability to effectively co-parent the children. Plaintiff asserted that she did not see any value in having the parties attend therapy until defendant gets "mental help[.]"

Plaintiff also addressed her claim for reimbursement for certain costs she had incurred for the children. Plaintiff stated that, under the PSA, the parties were required to share the costs of "mutually agreeable extracurricular" activities. The PSA also provided that the parties may not "unreasonably withhold" consent to such activities. Plaintiff said that defendant had not consented to the extracurricular activities and failed to pay his share of these costs. Plaintiff sought reimbursement for the cost of the children's attendance at dance classes, basketball camp, and religious education.

Plaintiff also sought reimbursement for the cost of A.R.C.'s attendance at a private preschool three half-days each week, which would change to full-time status in the fall 2011. According to plaintiff, defendant had not paid his share of these expenses, as required by the PSA. She asked the court to order defendant to pay his share of the past-due tuition for the preschool immediately. She additionally asked the court to order defendant to pay his share of these costs directly to the school, beginning in November 2011.

The trial court conducted an interview with P.J.C., Jr. on October 28, 2011. The court's coordinator also attended the interview and participated in the questioning. The court asked P.J.C., Jr. about his relationship with his father. He said his father was "mean" to him and his mother. He stated that when defendant lived with plaintiff, they were often "yelling" at each other.

P.J.C., Jr. also said that defendant would at times scream and hit him if defendant told him to do something and he did not "do it the first time." P.J.C., Jr. stated that this happened many times. He also said defendant sometimes hit him with a belt, but he had not done so in a long time. P.J.C., Jr. stated that defendant sometimes would strike plaintiff. He said he was angry with defendant.

P.J.C., Jr. additionally said that his mother's boyfriend treats her "nice." He visits the house several times a week, and takes him to his sports games. P.J.C., Jr. stated that his mother's boyfriend does not live in their home and only stayed overnight twice. One time was to "protect" the family, and the other time was due to a hurricane.

The trial court commented that it would like to get defendant into counseling and have him see P.J.C., Jr. "in small increments[.]" The boy stated that he did not know if he "could do that" because being around defendant made him "get the feeling." The court observed that, at some point, P.J.C., Jr. and his father would have to get together, perhaps with a therapist.

The court subsequently entered an order dated November 21, 2011, addressing the parties' motions. There was, however, no argument on the motions, and the court did not provide the parties with a statement of reasons for its order. The court denied defendant's motion in its entirety, and ordered defendant to undergo a psychological evaluation with Dr. Mark White, Ph.D. (Dr. White). The order stated that Dr. White's report would be provided to the court and to counsel, and the court could thereafter "enter additional orders regarding custody and parenting time."

The court also ordered defendant to: reimburse plaintiff for his share of the cost of the children's extracurricular activities, pay the past-due tuition for A.R.C.'s attendance at preschool, pay monthly preschool tuition by the first day of each month, and to pay plaintiff's attorney's fees in the amount of $2,030. In addition, the court directed the parties to order a copy of the transcript of the court's interview with P.J.C., Jr.

Defendant thereafter filed a motion for reconsideration of the November 21, 2011 order. In his certification dated December 9, 2011, defendant stated that the court appeared to base its decision on the interview with P.J.C., Jr., but the court never interviewed defendant, asked him questions in open court, or ever saw him. Defendant said he never struck plaintiff or his son. He stated that he made his motion to get help for his son and hoped the court would reconsider its decision on that issue.

Defendant also asked the court to reconsider its decisions regarding his obligations under the PSA. He stated that the expenditures are supposed to be the result of "joint decisions not unilateral [decisions]." He also stated that plaintiff sent their daughter to preschool at a cost of $5,000 a year, when a comparable school was available free of charge.

Plaintiff apparently filed a certification in response to defendant's motion.*fn2 Defendant filed a reply certification dated January 5, 2012, in which he stated that plaintiff and her attorney had improperly tried to influence Dr. White before any counseling had taken place. Defendant asserted that he had a "wonderful" relationship with his daughter, insisted that he never agreed to send his daughter to the preschool, and stated that plaintiff had never consulted with him regarding their daughter's attendance at that school. Defendant asked the court to impose sanctions upon plaintiff for her violations of the PSA, and asserted that he should not be required to pay plaintiff's legal fees.

The trial court issued an order dated February 22, 2012, denying defendant's motion. The court attached a statement of reasons to the order. The court stated that defendant had not presented any evidence warranting reconsideration of the prior order requiring defendant to undergo a psychological evaluation.

The court noted that defendant had disputed certain statements that P.J.C., Jr. made in the interview. The court said, however, that the purpose of the interview was not to determine which party's position was right or wrong, but rather to afford the Court the opportunity to get a better understanding of [the boy's] thought process and his relationship with his father. It is for this reason that the Court directed [d]efendant to listen to the interview, as it speaks for itself. In considering the entirety of the interview, the Court has concerns that the relationship between father and son is suffering a breakdown. The Court appointed Dr. Mark White, Ph.D. to perform a psychological evaluation of [d]efendant to enable him to repair the parent-child relationship between [d]efendant and his son.

The court also stated that there was no basis to reconsider its order regarding the expenses for the children. The court noted that defendant was required by the PSA to pay a share of "all reasonable and necessary work related daycare costs/day care camp costs" for the children. The court observed that the PSA specifically stated that A.R.C. had been attending the preschool.

The court also stated that defendant had provided no basis to excuse him from his obligation under the PSA for a share of the costs of the children's extracurricular activities. In addition, the court reaffirmed its decision to award plaintiff attorney's fees, and directed that they be paid within thirty days.

Defendant first argues that the trial court erred by rendering its decisions without oral argument. Rule 1:6-2(d) provides that, except as otherwise provided in Rule 5:5-4 (pertaining to motions in the Family Part), oral argument on a motion is not required unless requested by a party in the moving papers or in a timely-filed answer or reply papers.

Defendant has not included his notices of motion in the appendix. Therefore, we cannot determine whether he requested oral argument when he made his motions. Furthermore, a review of plaintiff's responses to the motions and defendant's certifications do not mention oral argument. Based on the record before us, we cannot conclude that the court erred by making its decisions without affording the parties an opportunity for oral argument.

Defendant additionally argues that the trial court erred by failing to provide a statement of reasons for the November 21, 2011 order. Rule 1:7-4(a) requires the trial courts to state in an opinion or memorandum, either written or oral, the relevant facts and conclusions of law for each decision made on a motion. The trial court's statement of reasons is essential for our review. Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2006) (citing Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990)).

Here, the trial court did not provide the required statement of reasons for its November 21, 2011 order. We note, however, that the trial court cured that error in part in the statement of reasons appended to the February 22, 2012 order, which addressed defendant's motion for reconsideration.

Defendant further argues that the trial court erred by requiring him to pay his share of the cost of A.R.C.'s attendance at the preschool. However, as the trial court pointed out, the PSA states that A.R.C. was attending the preschool three days per week, and that she would attend that school on a full-time basis beginning in September 2011. The PSA also states that the parties would initially share these costs equally. Therefore, the record supports the court's decision requiring defendant to pay his share of these expenses.

Next, defendant argues that the trial court erred by ordering him to pay a share of the costs for the children's extracurricular activities. The PSA states that defendant shall pay fifty percent of "all mutually agreeable extracurricular activity costs for the minor children of the marriage[.]" The PSA additionally states that neither party shall unreasonably withhold his or her consent to such activities. The PSA notes that the children were then enrolled in basketball, soccer and dance and that these activities may change from time to time.

Defendant argues that plaintiff did not consult him regarding the expenses for extracurricular activities. Defendant correctly notes that the PSA states that such activities must be "mutually agreeable." However, the record shows that the activities for which plaintiff sought reimbursement were of the sort mentioned in the PSA, and any decision to withhold consent for the children's participation in those activities would have been unreasonable. Therefore, the court did not err by requiring defendant to pay his share of these costs.

In addition, defendant argues that the trial court erred by ordering him to undergo a psychological evaluation without having seen him or interviewed him. We note that the trial court's order was not stayed pending appeal, and it is unclear from the record whether that evaluation took place, in which case the issue would be moot.

As we stated previously, when the court entered its order of November 21, 2011, it directed the parties to obtain copies of the transcript of the court's interview with P.J.C., Jr. Defendant thereafter filed his motion for reconsideration and in support of that motion, submitted a certification in which he disputed many of the things that P.J.C., Jr. said about him in the interview.

As we stated previously, when addressing defendant's reconsideration motion, the court stated that the purpose of the interview was "not to determine which party's position was right or wrong, but rather to afford the [c]court the opportunity to gain a better understanding of [P.J.C., Jr.'s] thought process and his relationship with his father." The court said that the interview "speaks for itself" and that the court was concerned that defendant's relationship with his son "is suffering a breakdown."

It appears, therefore, that the court credited some of P.J.C., Jr.'s statements when it ordered defendant to undergo a psychological evaluation. The court found that the father-son relationship was "suffering a breakdown" and apparently thought defendant should undergo a psychological evaluation as the first step in addressing the situation.

We are convinced that the court erred by requiring the evaluation without first affording defendant an opportunity to address his son's statements. Although defendant disputed some of his son's statements when he sought reconsideration, it is not clear from the record whether defendant had the opportunity to fully address those statements. Moreover, the trial court reviewed defendant's statements under the standards applicable to motions for reconsideration. In addition, the court failed to explain the reasons why P.J.C., Jr.'s statements warranted the psychological evaluation. The court also did not explain whether it viewed P.J.C., Jr.'s statements as more credible than defendant's statements. Accordingly, we reverse the order requiring defendant to undergo the evaluation.

We remand the matter to the trial court to determine whether the issue is moot. If not, the court should afford defendant the opportunity to fully address his son's statements in the interview. Since the court appeared to have given some credence to plaintiff's statements, defendant also should be afforded an opportunity to address those statements. If the record reveals a genuine issue of material fact, the court should conduct an evidentiary hearing to resolve any such issue.

If the court determines that defendant must undergo psychological evaluation, it shall make appropriate findings of fact, specifically referencing the evidence that it relied upon for that determination. The court should additionally address defendant's application for an order requiring his son to have counseling.

In this regard, we reject defendant's contention that the court erred by allowing the court's coordinator to participate in its interview of P.J.C., Jr. Defendant insists that the court's coordinator was not qualified to interview a twelve-year-old child. However, the record indicates that the court conducted the interview and the court coordinator's involvement was minimal. We are satisfied that the court did not abuse its discretion by allowing the court's coordinator to attend and participate in the interview.

Defendant additionally argues that the trial court erred by failing to address his contention that plaintiff violated the PSA by having her "significant other" stay in the home for overnight visits. The PSA provides that "[n]either party shall have a significant other in the presence of the children on an overnight basis for [six] months following [the] divorce." The PSA further provides that the parties should conduct themselves "in a manner consistent with the best interests of the children[.]"

In responding to defendant's motion for enforcement of these provisions of the PSA, plaintiff acknowledged that her "significant other has occasionally stayed overnight at my home." Plaintiff stated that her failure to comply with the PSA was justified because defendant violated the PSA, and that "in the grand scheme of things, [her] violation on this issue [was] a small infraction."

In our view, the trial court erred in failing to address this issue when it entered its November 21, 2011 and February 22, 2012 orders. Although the PSA's provision regarding overnight visits by a "significant other" may no longer apply due to the passage of time, such visits may violate the other provision of the PSA if they are not in the "best interests of the children." The court should address this issue on remand.

In addition, defendant argues that the trial court erred by awarding plaintiff counsel fees. As we stated previously, the court erred by ordering defendant to undergo a psychological evaluation without first affording him an opportunity to fully address his son's statements in the interview. The court also erred by failing to address defendant's contention that plaintiff violated the PSA, and his application to have counseling for his son. The court correctly determined, however, that defendant was obligated to pay his share of the costs of the children's extracurricular activities and the cost of A.R.C.'s attendance at the preschool.

On remand, the trial court should reconsider its award of counsel fees. Any award should reflect the extent to which plaintiff prevailed initially and in the remand proceedings. Furthermore, the court should consider whether the award should be limited by the PSA, which states in pertinent part:

Should either party fail to abide by the terms of this Agreement, then the defaulting party will indemnify and hold the other harmless for all reasonable expenses and costs, including attorney's fees and disbursements, incurred in successfully enforcing this agreement, or asserting or defending his or her rights hereunder as against the other party or third parties.

Affirmed in part, reversed in part and remanded to the trial court for further proceedings in conformity with this opinion. We do not retain jurisdiction.


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