RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-5168-14T2
M.S., Plaintiff-Respondent, v. J.S., Defendant-Appellant.
Argued November 2, 2016
Before Judges Accurso, Higbee, and Manahan.
Re-argued Telephonically February 28, 2017 – Decided April 13, 2017
Before Judges Alvarez, Accurso, and Manahan.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-1202-11.
Jonathan H. Blonstein argued the cause for appellant (Weinstein Lindermann & Weinstein, attorneys; Jeffrey P. Weinstein, of counsel and on the briefs; Mr. Blonstein, on the briefs).
Demetrios K. Stratis argued the cause for respondent (Ruta, Soulios & Stratis, LLP, attorneys; Mr. Stratis, on the brief).
PER CURIAM Defendant J.S. appeals a May 28, 2015 eighteen-paragraph order that, in its most significant aspect, suspended without explanation a two-year therapeutic reunification process conducted over Skype. The order also awarded plaintiff M.S., defendant's former wife, counsel fees of $4124 and imposed a penalty on defendant of $10,000. It continued defendant's obligation to provide information regarding his 2010 convictions for two financial frauds and his visa application. Additionally, the order granted "[p]laintiff's request that an adverse inference be inferred against defendant in determining future parenting time and future conditions of such parenting time . . . ." We reverse.
The parties married in 1999. Defendant is English, plaintiff Canadian, and the family lived in England until plaintiff's relocation to the United States in 2007 with the parties' two daughters, who are now seventeen and fifteen years old. Defendant remained in England, where he has lived continuously to this day. He was incarcerated for two and a half years for the financial frauds, thereafter placed on parole, and paid a substantial fine.
While imprisoned, defendant threatened plaintiff during a phone conversation. As a result, on December 1, 2010, a final restraining order (FRO) under the Domestic Violence Act, N.J.S.A.
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2C:25-17 to -35, was entered. The order barred defendant from contact with plaintiff or the children.
In January 2012, an amended order issued permitting contact between defendant and the children, through letters, and directing that reunification visitation therapy commence, which resulted in Skype sessions between father and children. On April 12, 2012, Paul Dasher, Ph.D., was appointed the reunification therapist. Defendant began his own psychiatric treatment in 2013. Defendant's mother has travelled here to visit the children on one occasion.
On April 3, 2014, Dr. Dasher recommended face-to-face contact either by way of visits in the United States, England, or Canada. Canada does not restrict visitors to the country who have criminal histories; the United States does. No action appears to have been taken on Dr. Dasher's recommendation.
Initially, Dr. Dasher was permitted to record the sessions and share them with the parties and their attorneys. Eventually that stopped. The children expressed discomfort with being photographed by defendant while the family was Skyping, although any explanation for this discomfort is absent from the record.
Plaintiff brought the children to Dr. Dasher's office on March 1, 2015 for a regular Skype visit, but spoke to him beforehand. She told Dr. Dasher that while reading a report prepared by defendant's therapist regarding his ongoing treatment,
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he commented that he had seen a recording of a Skype session between father and daughters.1 The session scheduled for that date did not take place.
Dr. Dasher, in a neutrally worded communication to the court and counsel, noted that the issue could have been raised earlier in the week, which would have allowed him time to address the problem without "the resulting awkwardness and confusion" created by the last minute announcement. We cannot discern whether on that date the children refused to visit with their father, or if their mother decided not to remain for the Skype visit. Defendant later certified that he recorded the one Skype session because he wanted to show it to his therapist to obtain more detailed guidance on how to interact with his daughters. No Skype sessions have taken place since then.
No order prohibited defendant from recording the sessions, but he did so without anyone's consent. He immediately agreed to not record any future sessions.
Starting in 2012, at plaintiff's request, the judge ordered defendant to provide detailed information regarding his convictions and sentence. The judge's rationale for doing so is
1 Although defendant's mental health is not an issue, plaintiff read at least that report regarding defendant's treatment. We do not know from this record the reason plaintiff had access to information regarding defendant's therapy.
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not included in the record. When asked at oral argument to explain the reason for the order, plaintiff's counsel said providing the information was intended to build trust. In the intervening three years, plaintiff filed approximately a dozen motions to compel more and more detailed "discovery" regarding the charges, sentence, and defendant's status on parole. Defendant was ordered to pay some $24,011.50 in total counsel fees as a result of these applications.
The "discovery orders" also compelled defendant to provide all the paperwork he submitted in support of his visa application to travel to the United States to see the children. Nothing in the record explains the reason for the entry of this order. When asked at oral argument about the obligation, plaintiff's counsel said the disclosures were intended to establish defendant's credibility.
The judge did not explain his reasoning, orally or in writing, for suspending the therapeutic visitation process on May 28, 2015. We quote some paragraphs taken from the order:
6. THAT Plaintiff's request that the entire reunification process be suspended until further Order of the Court is GRANTED; which is in the children's best interest.
Defendant's contact with the children going forward will be by letter only.
. . . .
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12. THAT Plaintiff's request that an adverse inference be inferred against the Defendant in determining future parenting time and future conditions of such parenting time is GRANTED; plaintiff's request to strike the defendant's pleadings is moot because no pleadings were filed.
. . . .
14. THAT defendant's request that Dr.
Dasher's recommendations shall have binding authority on the parties is hereby DENIED as the Defendant has violated multiple past court orders and has recorded a past SKYPE reunification session with Dr. Dasher without authority to do so; this denial is in the best interest of the children.
15. THAT defendant's request that the reunification therapy, supervised by Dr.
Dasher, proceed to in-person supervised parenting time in Canada, United Kingdom, and/or United States, and the mode and manner of which being supervised by Dr. Dasher is DENIED. Paragraph 6 above orders that the entire reunification process is hereby suspended.
Defendant raises issues for our consideration in seven separate point headings. We address them in combination: the ongoing discovery obligations as to defendant's prior convictions, sentence, and any visa application; termination of contact with his children; counsel fees and the $10,000 sanction; and defendant's request for the transfer of the matter to a different judge.
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Findings of fact by the family court are binding on appeal "when supported by adequate, substantial, credible evidence." Clark v. Clark, 429 N.J. Super. 61, 70 (App. Div. 2012). However, "a trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P., v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
It is well-established that a judge has a duty to make findings of fact and conclusions of law "on every motion decided by a written order that is appealable as of right." R. 1:7-4(a). "Failure to perform that duty 'constitutes a disservice to the litigants, the attorneys and the appellate court,'" and may be grounds for reversal. Curtis v. Finneran, 83 N.J. 563, 569-71 (1980)(quoting Kenwood Assocs. v. Bd. of Adj. Endglewood, 141 N.J. Super. 1 (App. Div. 1976)).
I.
The record provided to us does not include any findings of fact or conclusions of law reached by either of the two Family Part judges who entered the orders requiring defendant to disclose detailed information regarding his convictions and sentence, or his visa application. To our knowledge, this is not standard practice in the Family Part. We cannot see the relevance between defendant's white collar 2010 convictions and contact with his
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children. In the absence of any established precedent, fact in the record, or findings of fact and conclusions of law as required by Rule 1:7-4(a), which support disclosure, we reverse. We reach the same conclusion for the same reasons regarding defendant's pending visa application.
In the unlikely event that he were to gain entry to this country, as the FRO remains in effect, he must advise his attorney in advance of his anticipated arrival in order to arrange to see the children. Defendant is still bound by the terms of the amended FRO.
II.
It is troubling to read through the reports included in the appendix which indicate the children express fear and loathing of their father in terms that to an outsider seem disproportionate to their family history. In any event, all parents, even if convicted of crimes, are entitled to contact with their children. S.M. v. K.M., 433 N.J. Super. 552, 558 (App. Div. 2013).
In S.M., a father struggled with severe alcoholism, and at one point, while intoxicated, held a BB gun to his son's head. Id. at 554. He was actually charged with second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), and as a condition of his bail in the criminal matter, was barred from contact with his children. Id. at 556. The parallel divorce action pending
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between the parties also barred contact. Id. at 555-57. The children refused to see their father. Id. at 558. As we said:
Not only do parents have a constitutional right to enjoy a relationship with their children, In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999), children likewise have the right to visit with their parents after they have been removed from the parents' home.
N.J.S.A. 9:6B-4A(e). This is so even if the children verbalize a desire not to see the parent, as happened here. The children's bill of rights states that a child has the right "to visit with [his or her] parents or legal guardians . . ." or to "otherwise maintain contact with [his or her] parents or legal guardian. . . ." Ibid. A child's best interests are generally fostered when both parents are involved with the child, assuring the child frequent and continuing contact with both parties. Finamore v. Aronson, 382 N.J.
Super. 514, 523 (App. Div. 2006).
[Ibid.]
We noted that our court rules and an Administrative Office of the Courts Directive outline the procedure for modification of bail conditions to allow for communication between parents and children in just these types of scenarios. Id. at 558-59 (citing R. 5:12-6); Administrative Directive No. 03-09, Co-Occurring Child Abuse and Domestic Violence – Operational Guidance (May 29, 2009), www.judiciary.state.nj.us/directive/2009/dir_03-09.pdf. That father, who suffered from substance abuse issues and threatened his young child with a firearm was nonetheless entitled to therapeutic reunification visitation. S.M., supra, 433 N.J.
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Super. at 560. Certainly, this father is equally entitled to therapeutic reunification visitation.
No doubt plaintiff, as a loving parent, is interested in seeing the children thrive emotionally. A positive relationship between them and their father will only contribute towards their mental health.
III.
We do not agree with defendant that Dr. Dasher's recommendations were binding on the judge. A court is never required to accept the recommendation of a court-appointed expert. See R. 5:3-3(g); City of Long Branch v. Liu, 203 N.J. 464, 491 (2010) (holding that a fact-finder is "not bound to accept an expert's opinion in whole or even in part") (citing State Highway Com. v. Dover, 109 N.J.L. 303, 307 (E.&A. 1932)).
In this case, however, the record does not disclose the reason Dr. Dasher's measured and thoughtful recommendations were not accepted. Once defendant agreed he would no longer record any session, the sessions should have continued in the normal course focused towards the goal of face-to-face contact when therapeutically possible. The record does not support the "suspension," effectively the termination of, the Skype sessions.
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IV.
It was error for the judge to order, at plaintiff's request, that "an adverse inference be inferred against the Defendant in determining future parenting time and future conditions of such parenting time . . . ." We cannot discern the judge's intent from the language he used. In any event, neither the record nor any precedent we are aware of supports the decision.
An adverse inference is ordinarily employed where one party has engaged in spoliation of evidence. See Rosenblit v. Zimmerman, 166 N.J. 391, 400-02 (2001). Adverse inferences are also granted as a sanction for failure to call an available witness in criminal cases. State v. Clawans, 38 N.J. 162, 170 (1962). There may be other scenarios in which adverse inferences are imposed. The adverse inference in this case, imposed without explanation, preemptively sanctions defendant in his future interactions with his children. Entry of that order was an inexplicable abuse of discretion.
V.
Plaintiff was awarded $4124 in counsel fees and a $10,000 sanction based on her claim that defendant was not compliant with the court orders regarding discovery. We do not agree that he was not compliant. Defendant supplied multiple documents over multiple years about his criminal offenses. He was compelled to
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provide copies of his visa application. Without findings of fact and conclusions of law, no sanctions or fees should have been imposed.
Courts have many options with regard to obtaining compliance with orders, including monetary penalties. The imposition in this case of such a significant sanction, however, in light of the questionable value of the discovery in the first instance, is also an abuse of discretion. See Ridley v. Dennison, 298 N.J. Super. 373, 381 (App. Div. 1997) (holding that an "overwhelmingly punitive" sanction is "improper without the benefit of proceeding under Rule 1:10-2 and its safeguards.").
It would be inequitable to compel defendant to pay additional counsel fees. Nothing is known regarding the parties' financial situation, and no consideration was given to the Rule 5:3-5(c) factors. Since the judge did not engage in the analysis required by rule, statute, and equity, the monetary aspects of the order are reversed.
VI.
Lastly, we address defendant's request that the matter be scheduled before a different judge. We are sufficiently troubled by the unsupported decision ending contact between father and children as a result of an inconsequential incident, that we agree the matter is best considered by another judge. In the absence
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of findings of fact or conclusions of law, we can only assume that this judge is wedded to his negative view regarding defendant's conduct, which view is not supported by the record before us. See Johnson v. Johnson, 390 N.J. Super. 269, 275-76 (App. Div. 2007); Carmichael v. Brian, 310 N.J. Super. 34, 49 (App. Div. 1998).
VII.
Thus, the entire May 28, 2015 order is reversed. This effectively returns the parties to the visitation status quo, which implemented a therapeutic visitation program. Counsel shall promptly notify Dr. Dasher to reach out to the parties in order to begin anew in the manner, given the intervening two years, that he believes would be most productive after this long hiatus.
Reversed.