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E.S. v. H.A.

Superior Court of New Jersey, Appellate Division

August 15, 2017

E.S., Plaintiff-Respondent,
H.A., Defendant-Appellant. E.S., Plaintiff-Appellant,
H.A., Defendant-Respondent.

          Argued February 28, 2017

         On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FM-01-0562-09.

          Bruce P. Matez argued the cause for appellant in A-3230-14 and respondent in A-3256-14 (Borger Matez, P.A., attorneys; Mr. Matez, on the briefs).

          Patricia A. Darden argued the cause for respondent in A-3230-14 and appellant in A-3256-14 (Law Offices of Patricia A. Darden, attorneys; Ms. Darden, on the briefs).

          Before Judges Messano, Suter and Guadagno.


          MESSANO, P.J.A.D.

         Plaintiff E.S. and defendant H.A. are the parents of R.A. (Richard), born in 2004.[1] The parties separated in December 2008, and after a contentious period during which plaintiff alleged acts of domestic violence (DV), and defendant successfully litigated against her claims, the marriage ended in a consent judgment of divorce (JOD) filed on September 8, 2009. The parties were unable to resolve issues of custody and parenting time prior to entry of the JOD.

         Earlier in 2009, plaintiff had contacted the Division of Child Protection and Permanency (DCPP or the Division) regarding Richard's inappropriate, overtly sexual behavior. The Division began to investigate whether defendant had sexually abused Richard. In April 2009, the parties entered into a consent order in the matrimonial action that restored defendant's parenting time, which had been suspended during the DV proceedings. However, a subsequent domestic violence complaint resulted in a temporary restraining order and renewed suspension of defendant's parenting time.

         When the court dismissed the last of plaintiff's domestic violence complaints following a multi-day trial that also ended in September 2009, plaintiff thereafter successfully sought an order to show cause temporarily suspending defendant's parenting time until the judge could review the Division's records regarding its investigation. On October 5, 2009, after completing her review, the judge dissolved any restraints and ordered resumption of defendant's parenting time in accordance with the April 2 0 09 order.

         On November 10, 2009, the Division advised defendant its "investigation determined that abuse was substantiated for sexual molestation with regard to [Richard], " and that "[y]ou have been identified as a person responsible for the abuse." Defendant apparently sought an administrative appeal because, on February 19, 2010, the Division advised him the "finding of abuse" as to one incident, July 27, 2009, was overturned. However, the Division's finding of abuse as to a second incident on July 6, 2009, remained in place. Defendant filed a request for further review before the Office of Administrative Law (OAL).

         Meanwhile, plaintiff sought reconsideration of the denial of her earlier request to suspend all parenting time. By July 2010, the OAL hearing still had not taken place, nor had the Division initiated a Title 9 or Title 30 action. The Family Part judge overseeing the matrimonial action entered an order setting a plenary hearing for October "on the issue whether it is in the best interests of . . . [Richard] that parenting time with his father . . . should resume."

         No hearing took place, as issues and disputes continued to arise regarding expert witnesses. In January 2 011, the judge appointed Dr. Jennifer L. Perry, Psy.D., as the court's expert, and charged her with evaluating "when and in what manner it w[ould] be in the best interest of . . . [Richard] to resume parenting time with his father . . . ." The parties' litigious conduct continued; it is unnecessary to detail the reasons for, or results of, various court appearances that followed.

         In a February 2012 order, the judge provided copies of Dr. Perry's reports to counsel, and the parties again appeared before the court on April 2, 2012. Although the order entered that day indicates the judge took "sworn testimony, " there was no testimony. After listening to the arguments of counsel, the judge prohibited defendant "from any and all contact with" Richard, "with the exception of the supervised visitation with Dr. Perry or any other visitation ordered by th[e] court." The judge permitted the parties to engage in discovery and set new dates for a plenary hearing in July 2012.

         In May 2 012, defendant withdrew his administrative appeal of the Division's substantiated finding of abuse. No plenary hearing took place during the summer of 2012. In November, a different Family Part judge took over the litigation, and a plenary hearing began in January 2013 and continued on non-consecutive days until May. The parties thereafter submitted written proposed factual findings and legal conclusions.

         On November 22, 2013, the judge issued an oral opinion on the record explaining the reasons supporting his order filed that day (the November 2013 order). The record reflects only defense counsel was present; plaintiff's counsel had a court appearance in another county, was running late and the judge decided not to wait.

         The judge found by clear and convincing evidence, that defendant had sexually abused Richard. The order granted plaintiff sole legal and physical custody of Richard and denied defendant parenting time. Section 3 of the order required that, before making any application for parenting time, defendant

shall comply with the requirements set forth by Dr. Jennifer Perry in her testimony, which include:
a. Admission of wrongdoing;
b. A psycho-sexual evaluation by a professional specializing in same; and
c. Individual therapy.

         In Section 4, the order further provided that, "[i]f and when the [d]efendant completes the aforementioned requirements, he may apply for consideration of parenting time through Therapeutic Management of Reunification (TMR)."[2]

         In his oral opinion denying both parties' requests for counsel fees, the judge noted plaintiff's counsel's request was "vague, " and he did not "know whether she's going to do something. Some post judgment motion probably . . . ." The November 2013 order simply denied both parties' requests for counsel and expert fees.

         Plaintiff sought reconsideration, asking the order specifically include the judge's finding that defendant had sexually abused his son, and modifying the order to clarify that her request for fees was denied without prejudice. The judge granted the motion for reconsideration and entered the January 10, 2014 order (the January 2014 order) that stated defendant "sexually abused" Richard, and denied plaintiff's request for fees without prejudice.[3] The January 2014 order reiterated the requirements of the November 2013 order imposing preconditions on defendant's future applications for parenting time.

         Plaintiff submitted a request for fees. Defendant's opposition never asserted an inability to pay. Rather, defendant claimed plaintiff was solely responsible for the plenary hearing, because she refused to accept Dr. Perry's initial recommendation of TMR. Defendant asserted the "proper forum ...

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