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M.H.S. v. L.G.S.

Superior Court of New Jersey, Appellate Division

September 30, 2013

M.H.S., Plaintiff-Respondent,
v.
L.G.S., Defendant-Appellant

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 16, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM-09-920-13.

David Perry Davis argued the cause for appellant.

Stacey Boretz argued the cause for respondent (Lindabury, McCormick, Estabrook & Cooper, P.C., attorneys; Ms. Boretz on the brief; Frederick A. D'Arcangelo, on the brief).

Before Judges Yannotti, Ashrafi and St. John.

PER CURIAM

In this matrimonial case, defendant-wife appeals by our leave from several interlocutory orders of the Family Part that granted unsupervised overnight parenting time to plaintiff- husband; temporarily transferred physical custody of the infant child to husband; and denied wife's applications for a stay. She also appeals as of right from a July 12, 2013 order directing that she be held in custody for refusing to produce the child for unsupervised parenting time with husband.[1] The orders were issued without the court holding an evidentiary hearing to consider wife's contention that the child was at risk because husband was allegedly obsessed with internet pornography that contained incestuous themes.

We make no determination here that husband in fact viewed incest or any other kind of pornography, but we conclude that the Family Part erred in discrediting wife's accusations and ordering changes in parenting time and custody without conducting an evidentiary hearing. We reverse and remand for an evidentiary hearing and other proceedings consistent with this opinion.

The parties were married in October 2011, and their only child, a girl, was born in September 2012. In November 2012, husband filed a complaint for divorce. In December 2012, wife filed an answer, a counterclaim for divorce, and a motion for pendente lite relief, including that she be granted sole custody of the child and that husband have parenting time only under supervision. Wife alleged she had recently discovered that husband was "addicted" to internet pornography with an incestuous theme, and that he was also abusing prescription drugs. Husband filed opposition and a cross-motion requesting unsupervised parenting time and a psychiatric evaluation of wife. The motion and cross-motion also requested pendente lite financial rulings that are not relevant to this appeal.

The Family Part heard argument on the motions on January 11, 2013. Husband and wife were present in court with counsel, and the court put them under oath, but it did not take testimony regarding wife's accusations. Counsel for husband alleged that wife and her sister had broken into husband's residence in Brooklyn and planted evidence of pornography sites on his computer. Wife's attorney denied that allegation and agreed to provide wife's evidence to the court. During the lengthy oral argument, the court discussed options for supervised parenting time for husband pending the court's resolution of the dispute. The following colloquy then occurred:

HUSBAND: I refuse to be supervised — . . . .
HUSBAND: I'm sorry. I don't want to be — I refuse to be supervised ...

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