RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3230-14T2
A-3256-14T2
E.S.,
Plaintiff-Respondent,
v.
H.A.,
Defendant-Appellant.
_____________________________
E.S.,
Plaintiff-Appellant,
v.
H.A.,
Defendant-Respondent.
______________________________________________
Argued February 28, 2017 – Decided August 15, 2017
Before Judges Messano, Suter and Guadagno.
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, PA, 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).
The opinion of the court was delivered by
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
1
We use initials and pseudonyms to maintain the confidentiality
of the parties and their child.
2 A-3230-14T2
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 2009 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).
3 A-3230-14T2
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 2011, 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
4 A-3230-14T2
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 2012, 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:
5 A-3230-14T2
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
2
TMR was described at trial as a visitation modality, utilizing
a "progression" of steps aimed at "rebuilding rapport" between
Richard and defendant.
6 A-3230-14T2
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 for this case should have been . . . a proceeding
initiated by the Division."4
After conducting a hearing, the judge rendered an oral
opinion and memorialized it in his June 9, 2014 order (the June
2014 order), requiring defendant to pay plaintiff $60,000 in
attorney fees and $2488 in costs in monthly installments of
$10,000. The order further provided that "these fees and costs
shall not be dischargeable in bankruptcy."
3
It would appear from the order itself that defendant did not
oppose the motion for reconsideration, and defendant's appendix
does not include any opposition, if indeed any was filed.
4
However, the record reveals that prior to the plenary hearing,
defense counsel urged the judge not to accept the substantiated
finding of abuse as dispositive of the issue. Because we are
rejecting the arguments defendant now raises and affirming the
judge's order in most respects, we choose not to address a
specific argument raised in plaintiff's opposition, i.e., that
defendant's "abandonment of his administrative law appeal is
fatal . . . to his attempts to overturn the finding that he
sexually abused" Richard.
7 A-3230-14T2
Defendant moved for reconsideration and plaintiff cross-
moved to enforce the award. In his certification, defendant,
for the first time, asserted an inability to pay counsel fees
awarded to plaintiff. The judge's August 29, 2014 order (the
August 2014 order) granted defendant's motion in part, reducing
the monthly installments to $500, but denying all other relief.
The judge denied plaintiff's request for counsel fees in
opposing the motion.
Plaintiff filed another motion for reconsideration, seeking
an order reducing the counsel fee award to judgment, as well as
an award of additional fees for making the motion. Defendant
cross-moved, seeking a stay of the award and counsel fees for
opposing the motion. The judge's February 4, 2015 order (the
February 2015 order) denied plaintiff's motion and granted
defendant's motion in part, awarding him $2520 in counsel fees
as an offset against the award previously made in favor of
plaintiff.
In A-3230-14, defendant appeals the November 2013 order
that followed the hearing; the January 2014 order that granted
plaintiff's motion for reconsideration and added additional
terms to the original order; the June 2014 order awarding
plaintiff counsel fees; and the August 2014 order largely
denying his request for reconsideration of the fee award.
8 A-3230-14T2
In A-3256-14, plaintiff appeals from the August 2014 order
reconsidering the fee award and the February 2015 order denying
her motion for reconsideration. We calendared the cases back-
to-back, and now consolidate them for purposes of issuing a
single decision.
In A-3230-14, we reverse those provisions of the November
2013 and January 2014 orders that required defendant to "comply
with [certain] requirements" "[p]rior to" making "any
application for parenting time" with his son, but otherwise
affirm. We affirm in A-3256-14.
As to A-3230-14
I.
In Point I of his brief, defendant contends the judge based
his finding of abuse upon inadmissible hearsay, specifically
statements Richard made to plaintiff, his sister, C.C. (Carol),
and his therapist, Susan Mullen, as well as audio recordings
plaintiff made of conversations with her son. He also argues
the testimony of Richard's treating social workers, Mullen and
Donald Cohen, was privileged or otherwise inadmissible.
Defendant contends the judge erroneously relied upon the expert
testimony of Perry, and Amy Hoch, Psy.D., a psychiatrist to whom
the Division first referred Richard for evaluation. Defendant
also argues the judge erred by admitting evidence from plaintiff
9 A-3230-14T2
and Carol in the nature of prior bad acts, in violation of
N.J.R.E. 404(b). None of these arguments justify reversal.
"When a trial court admits or excludes evidence, its
determination is 'entitled to deference absent a showing of an
abuse of discretion, i.e., [that] there has been a clear error
of judgment.'" Griffin v. City of E. Orange, 225 N.J. 400, 413
(2016) (quoting State v. Brown, 170 N.J. 138, 147 (2001)).
"Thus, we will reverse an evidentiary ruling only if it 'was so
wide [of] the mark that a manifest denial of justice resulted.'"
Ibid. (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492
(1999)).
N.J.R.E. 803(c)(27) provides:
A statement made by a child under the age of
12 relating to sexual misconduct committed
with or against that child is admissible in
a criminal, juvenile, or civil proceeding if
(a) the proponent of the statement makes
known to the adverse party an intention to
offer the statement and the particulars of
the statement at such time as to provide the
adverse party with a fair opportunity to
prepare to meet it; (b) the court finds, in
a hearing conducted pursuant to Rule 104(a),
that on the basis of the time, content and
circumstances of the statement there is a
probability that the statement is
trustworthy; and (c) either (i) the child
testifies at the proceeding, or (ii) the
child is unavailable as a witness and there
is offered admissible evidence corroborating
the act of sexual abuse . . . .
10 A-3230-14T2
We apply the same differential standard of review to the judge's
decision admitting evidence under this Rule. State v. P.S., 202
N.J. 232, 250-52 (2010). Routinely, the trial court should hold
a hearing pursuant to N.J.R.E. 104 to determine whether such
evidence is sufficiently reliable and trustworthy for admission.
Id. at 248-49.
Here, the judge conducted a Rule 104 hearing primarily
focused on issues of authenticity regarding the recordings. See
N.J.R.E. 901. However, after hearing plaintiff's testimony
about the recordings, and recognizing Hoch's earlier testimony,
the judge specifically concluded Richard's statements contained
in the recordings were trustworthy. The record does not reflect
any lack of notice regarding the recordings, which were cited in
reports supplied to defendant in discovery, nor did defendant
ever object at trial on the grounds that Richard was available
as a witness.5
Defendant never sought a separate Rule 104 hearing about
Richard's statements to plaintiff, Carol or Mullen before their
testimony. Any argument now raised about the need to hold a
5
Indeed, defense counsel noted Richard was available to testify.
Even when hearsay testimony implicates constitutional rights, a
defendant bears the burden to object in the first instance.
State v. Williams, 219 N.J. 89, 99 (2014), cert. denied, ___
U.S. ___, 135 S. Ct. 1537, 191 L. Ed. 2d 565 (2015) (citation
omitted).
11 A-3230-14T2
Rule 104 hearing must be reviewed as plain error. See R. 2:10-2
(error "of such a nature as to have been clearly capable of
producing an unjust result").
We have recognized that a party may choose not to request
such a hearing for purely tactical reasons. See State v. W.L.,
292 N.J. Super. 100, 113 (App. Div. 1996). More importantly,
defendant has "failed to articulate any prejudice resulting from
the court's alleged dereliction in this non-jury proceeding."
State in re S.M., 284 N.J. Super. 611, 621 (App. Div. 1995).
The failure to hold a hearing was not plain error.
Moving from defendant's procedural arguments to his
substantive claims, the record reflects defendant rarely, if
ever, objected during the testimony of plaintiff and Mullen
regarding statements attributed to Richard.6 In this case, as in
S.M., "the court's findings at the conclusion of th[e] trial"
make "clear that the court was fully aware of its responsibility
to determine trustworthiness[.]" S.M., supra, 284 N.J. Super.
at 621. As a result, we reject defendant's arguments that the
admission of Richard's statements to others was reversible
error.
6
The judge never referenced Carol's very limited testimony
regarding Richard's statements. We discuss below Carol's very
limited testimony regarding defendant's alleged behavior.
12 A-3230-14T2
Defendant's contention that the judge erroneously permitted
the admission of other "bad act" evidence in violation of
N.J.R.E. 404(b) is also unavailing. Carol testified that
defendant partially exposed his buttocks to her while she was in
the bathroom, but, in rendering his oral decision, the judge
simply said, "I don't really know what to make of that, if it
occurred," and concluded that even if it had occurred, the event
was not "in the same category of issues that we're dealing
with."
Defendant argues the judge should have excluded plaintiff's
testimony about allegations of domestic violence and marital
problems. However, although defendant objected early in the
testimony, the judge overruled the objection, specifically
noting that defense counsel's opening asserted plaintiff's
domestic violence allegations, like the allegations of sexual
abuse, were contrived in an attempt to alienate Richard's
affections for his father. While that may not have otherwise
justified the admission of evidence that was marginally relevant
to the best interest analysis, we are certain the limited amount
of evidence played little role in the judge's decision, and any
error was harmless.
Defendant next argues the judge should have excluded
Cohen's and Mullen's testimony under N.J.R.E. 518 and N.J.S.A.
13 A-3230-14T2
45:15BB-13. He also argues Mullen's testimony was inadmissible
opinion testimony under N.J.R.E. 701 and the admission of her
therapy session notes was improper. We again disagree.
N.J.S.A. 45:15BB-13, codified in our evidence rules as
N.J.R.E. 518, prohibits a social worker from disclosing
"confidential information" "acquired from a client or patient"
except in certain circumstances, including when the client or
patient waives the privilege. N.J.R.E. 518(e). If more than
one person in a family is "receiving social work services," each
member must agree to the waiver.
Here, defendant never asserted privilege at trial, and our
review of Cohen's testimony clearly indicates he related no
confidential information received from defendant. In his brief,
defendant's argument regarding Mullen is limited to her
conversations with Richard. Defendant cites no authority that
supports his ability to vicariously assert a privilege on
Richard's behalf. Moreover, plaintiff, as Richard's mother and
the custodial parent, seemingly was in equal position to waive
any privilege. Defendant fails to address any of these issues
in his brief.
Moreover, a waiver is not required when the "[f]ailure to
disclose the information presents a clear and present danger to
the health or safety of an individual[.]" N.J.S.A. 45:15BB-
14 A-3230-14T2
13(b); N.J.R.E. 518(b). Since defense counsel made no
objection, the judge never addressed this issue. However, we
recognize, as did the judge, that the polestar for any best
interest custody decision "is the safety, happiness, physical,
mental and moral welfare of the child." Kinsella v. Kinsella,
150 N.J. 276, 317 (1997) (quoting Fantony v. Fantony, 21 N.J.
525, 536 (1956)). Given the nature of this case, the judge very
well might have authorized disclosure over any objection.
Defendant's other arguments regarding Mullen's testimony do
not persuade us to reverse. The judge carefully required the
redaction of Mullen's notes to include only those incorporated
in Mullen's testimony during trial; any error in admitting the
written notes was harmless.7 We agree with defendant that the
judge permitted Mullen to give expert opinion testimony, most
importantly that Richard displayed behaviors consistent with
having been abused. The record reflects a standing objection
from defense counsel that Mullen was providing expert testimony.
Plaintiff's counter argument that Mullen's testimony was
permissible lay opinion testimony is meritless.
7
Defendant's appendix includes all of Mullen's notes, nearly
three years' worth, without any redactions. We assume the
redacted version of the notes admitted complied with the judge's
instructions. Defendant's argument that admission of Mullen's
CV was prejudicial lacks any merit. R. 2:11-3(e)(1)(E).
15 A-3230-14T2
However, the judge noted defendant was well aware of
Mullen's involvement in the case and her opinions. He observed
that defendant failed to depose Mullen and therefore could not
claim surprise. Much of Mullen's testimony was factual in
nature, describing the various therapy sessions with Richard,
and clearly admissible.
More importantly, based on her education, training and
experience, Mullen could have been qualified as an expert, had
plaintiff offered her as such. In addition, Hoch, who was
qualified and questioned as an expert, opined that some of
Richard's developmentally inappropriate behavior was "rarely
seen in children not exposed to some sort of sexual behavior or
stimuli." The limited admission of Mullen's expert opinion
testimony over defendant's objection does not compel reversal.
Finally, defendant's arguments regarding the testimony of
Hoch and Perry lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
II.
A.
In Point II, defendant argues the provisions of the
November 2013 and January 2014 orders requiring his admission of
"wrongdoing" "[p]rior to" making "any application for parenting
time" violate his constitutional right against self-
16 A-3230-14T2
incrimination. As a corollary argument, defendant claims the
judge erred in relying on Hoch's and Perry's opinions that his
admission of wrongdoing was a necessary predicate to TMR,
because they were "net" opinions unsupported by any indicia of
scientific reliability. In response, plaintiff only contends
defendant failed to raise the issue in the trial court, and
Richard's best interests require defendant's admission of abuse
before TMR can commence.
Preliminarily, defendant's claim that the opinions
expressed by Hoch and Perry were net opinions lacks sufficient
merit to warrant discussion. R. 2:11-3(e)(1)(E). Defendant
also suggests Perry never conditioned parenting time, or
initiation of TMR, upon his admission of wrongdoing. However,
in responding to a question from the judge, Perry said:
I would say that if . . . Your Honor
determines that sexual abuse has occurred
and a perpetrator is not willing to admit to
that and get the services needed in order to
prevent that — or reduce the likelihood of
that occurring again, . . . there should be
no visitation.
Plaintiff is correct that defendant never raised a
constitutional challenge to conditioning future applications for
parenting time upon an admission of wrongdoing, and we
adhere[] to th[e] long-standing principle[]
. . . 'that our appellate courts will
decline to consider questions or issues not
properly presented to the trial court when
17 A-3230-14T2
an opportunity for such a presentation is
available unless the questions so raised on
appeal go to the jurisdiction of the trial
court or concern matters of great public
interest.'
[State v. Robinson, 200 N.J. 1, 20 (2009)
(quoting Nieder v. Royal Indem. Ins. Co., 62
N.J. 229, 234 (1973)).]
"However, if the issue is of special significance to the
litigant, to the public, or to the achievement of substantial
justice, and the record is sufficiently complete to permit its
adjudication, we may consider it." Borough of Keyport v.
Maropakis, 332 N.J. Super. 210, 216 (App. Div. 2000); see also
Ricci v. Ricci, 448 N.J. Super. 546, 567 (App. Div. 2017)
(considering constitutional challenge to Family Part's award of
college costs because "clarification of the law is necessary");
J-M Mfg. Co. v. Phillips & Cohen, LLP, 443 N.J. Super. 447, 458
(App. Div. 2015) (considering argument raised for the first time
on appeal regarding application of the entire controversy
doctrine to be "of sufficient importance to merit discussion"),
certif. denied, 224 N.J. 527 (2016). "[T]he Nieder rule's
exceptions are most fruitfully applied where the focal issue is
entirely a question of law, in respect of which lower court
determinations are accorded limited deference." Am. Civil
Liberties Union of N.J. v. Cty. of Hudson, 352 N.J. Super. 44,
72 (App. Div. 2002). For the following reasons, we relax
18 A-3230-14T2
Nieder's restrictions and consider defendant's constitutional
arguments.
The issue defendant now raises is of significant importance
to defendant, his son and other potential litigants in cases of
this nature. As we said nearly twenty years ago:
This case is an example of a tragic but
recurring dilemma in certain family court
cases involving allegations of child sexual
abuse. On the one hand, there are clearly
cases of imagined or even fabricated charges
against a parent, especially when raised
during the pendency of divorce proceedings.
For a parent to stand accused of such an
offense is devastating both to that
individual, and to the child's lifelong
relationship with the parent. On the other
hand, proof of such abuse, especially
involving a very young child, is rarely
clear, and the potential danger to a child
from a reoccurrence, if the suspicions and
accusations are well-founded, is enormous.
[P.T. v. M.S., 325 N.J. Super. 193, 198
(App. Div. 1999).]
Further, although the issue at trial was whether and under what
conditions should defendant's parenting time be restored, it is
entirely unclear whether defendant had an opportunity to address
potential judicially-imposed pre-conditions to any future
request he might make. Defendant might have properly moved for
reconsideration, but his failure to do so should not bar our
consideration of this significant issue. Moreover, the record
is complete, because both Hoch and Perry testified at length,
19 A-3230-14T2
were subject to extensive cross-examination and defendant
eschewed any opportunity to present his own expert on the
subject of TMR or any necessary preconditions. Lastly, whether
the provisions violate defendant's constitutional rights raises
a purely legal issue, and even if the trial judge were afforded
the opportunity to consider the argument, we would review his
decision de novo. Motorworld, Inc. v. Beckendorf, 228 N.J. 311,
329 (2017).
As a result, we move to the substance of defendant's
arguments.
B.
Our courts have long recognized "[t]he right of a parent to
raise a child and maintain a relationship with that child,
without undue interference by the state, is protected by the
United States and New Jersey Constitutions." N.J. Div. of Youth
& Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (citations
omitted). Our court has held that "a parent's rights to the
care and companionship of his or her child are so fundamental as
to be guaranteed protection under the First, Ninth and
Fourteenth Amendments of the United States Constitution." Wilke
v. Culp, 196 N.J. Super. 487, 496 (App. Div. 1984), certif.
denied, 99 N.J. 243 (1985); see also N.J.S.A. 9:2-4 (declaring
it to be the State's public purpose "to assure minor children of
20 A-3230-14T2
frequent and continuing contact with both parents after the
parents have separated or dissolved their marriage").
Therefore, "the law favors visitation and protects against the
thwarting of effective visitation[.]" Wilke, supra, 196 N.J.
Super. at 496.
"That fundamental parental right, however, is not without
limitation. The State has a basic responsibility, as parens
patriae, to protect children from serious physical and
psychological harm, even from their parents." E.P., supra, 196
N.J. at 102 (citation omitted). A parent's custody or
visitation "rights may be restricted, or even terminated, where
the relation of one parent (or even both) with the child cause
emotional or physical harm to the child, or where the parent is
shown to be unfit." Wilke, supra, 196 N.J. Super. at 496.
"New Jersey's privilege against self-incrimination,
although not enshrined in the State Constitution, is deeply
rooted in this State's common law and codified in both statute
and an evidence rule[,]" State v. Muhammad, 182 N.J. 551, 567
(2005), and "offers broader protection than its federal
counterpart under the Fifth Amendment." Id. at 568. Pursuant
to N.J.S.A. 2A:84A-19, and its equivalent, N.J.R.E. 503, every
person in New Jersey "has a right to refuse to disclose in an
21 A-3230-14T2
action . . . any matter that will incriminate him or expose him
to penalty . . . ."
[A] matter will incriminate (a) if it
constitutes an element of a crime against
this State, or another State or the United
States, or (b) is a circumstance which with
other circumstances would be a basis for a
reasonable inference of the commission of
such a crime, or (c) is a clue to the
discovery of a matter which is within
clauses (a) or (b) above; provided, a matter
will not be held to incriminate if it
clearly appears that the witness has no
reasonable cause to apprehend a criminal
prosecution. . . .
[N.J.S.A. 2A:84A-18; N.J.R.E. 502.]
Although the orders under review do not define the necessary
prerequisites of defendant's admission of wrongdoing, based upon
the evidence at trial and the judge's factual findings and
conclusions, it can be presumed that defendant would have to
admit he sexually assaulted Richard. See N.J.S.A. 2C:14-2(b)
(defining sexual assault as sexual contact between a victim less
than thirteen years of age by an actor at least four years
older). A prosecution for a violation of N.J.S.A. 2C:14-2(b)
may be commenced at any time. N.J.S.A. 2C:1-6(a)(1). As a
result, defendant's admission of "wrongdoing," whenever made,
potentially exposes him to criminal liability.
"Both the United States Supreme Court and our New Jersey
courts have consistently held that the state may not force an
22 A-3230-14T2
individual to choose between his or her Fifth Amendment
privilege and another important interest because such choices
are deemed to be inherently coercive." State v. P.Z., 152 N.J.
86, 106 (1997). It does not matter whether the particular
proceeding is itself a criminal prosecution. See ibid.
(collecting cases). Rather, "the Fifth Amendment is violated
'when a State compels testimony by threatening to inflict potent
sanctions unless the constitutional privilege is surrendered.'"
Id. at 106-07 (quoting Lefkowitz v. Cunningham, 431 U.S. 801,
805, 97 S. Ct. 2132, 2135, 53 L. Ed. 2d 1, 7 (1977)).
In P.Z., the Court considered "whether a caseworker from
the [Division] must give Miranda warnings to a parent prior to a
non-custodial interview related to a child abuse investigation."
Id. at 92. The defendant acknowledged he was not in custody at
the time, id. at 102, but argued "his statement was obtained in
a similarly coercive manner because he was faced with an implied
threat that his children would not be returned unless he
admitted responsibility for his youngest daughter's injuries."
Id. at 107.
Citing two out-of-state decisions, which we discuss below,
the Court concluded, "Although an admission of abuse may aid in
the rehabilitative process, termination of custody is not
automatic on invocation of the privilege. We therefore consider
23 A-3230-14T2
inapplicable those cases holding unconstitutional a requirement
that an individual choose between the right to remain silent and
another vital interest." Id. at 108. The Court recognized a
distinction between a "direct threat" to a vital interest or a
"previously held benefit" and, "instead, a possibility that
therapeutic outcomes will be determinative of parental rights."
Ibid. It explained:
[The defendant] was not asked to choose
between his children and the exercise of his
right to remain silent. If he abused his
daughter, and if he refused to acknowledge
his acts of abuse, he would find it
difficult to demonstrate that he could care
for his children without harming them. This
was the risk he faced. [The Division's
caseworker] did not threaten him with
termination of his parental rights if he did
not confess; nor did she tell him that the
only way he could get his children back was
to confess. We conclude that [the]
defendant's statement . . . was not coerced
in violation of his Fifth Amendment
privilege against self-incrimination.
[Id. at 209.]
Here, however, the orders directly threaten defendant's
parental rights, because defendant may not petition the Family
Part for modification unless and until he waives his privilege
against self-incrimination and admits "wrongdoing." The
decisions of several of our sister states have explained the
distinction drawn by the Court in P.Z., between compelled self-
incrimination — in violation of constitutional rights — and
24 A-3230-14T2
incriminatory statements that might be necessary for meaningful
reunification therapy to begin.
In In re Welfare of J.W., 415 N.W.2d 879, 880-81 (Minn.
1987), a case cited by the P.Z. Court, the defendant-parents
challenged a dispositional order that required them to undergo
psychological evaluations, which included explanation of the
circumstances that led to the death of a two-year old child in
their care. The State threatened to terminate their parental
rights if they would not agree. Id. at 881. The parents
objected claiming the order violated their constitutional right
against self-incrimination. Ibid. The court concluded "that
the trial court's order, to the extent it requires appellants to
incriminate themselves, violates appellants' Fifth Amendment
rights and is unenforceable." Id. at 883. However, the court
made clear the limits of the parents' privilege:
While the state may not compel therapy
treatment that would require appellants to
incriminate themselves, it may require the
parents to otherwise undergo treatment.
Therapy, however, which does not include
incriminating disclosures, may be
ineffective; and ineffective therapy may
hurt the parents' chances of regaining their
children. These consequences lie outside
the protective ambit of the Fifth Amendment.
. . . .
. . . In the lexicon of the Fifth
Amendment, the risk of losing the children
for failure to undergo meaningful therapy is
25 A-3230-14T2
neither a "threat" nor a "penalty" imposed
by the state. It is simply a consequence of
the reality that it is unsafe for children
to be with parents who are abusive and
violent.
[Id. at 883-84.]
The Vermont Supreme Court reached a similar conclusion in
In re M.C.P., 571 A.2d 627 (Vt. 1989), another case cited by the
P.Z. Court. There, the trial court ordered continued custody of
the minor with the child welfare agency "until the parents g[ot]
over the extreme denial of any abuse and seek counseling to
overcome these problems . . . ." Id. at 640. Adopting the
analysis of the court in J.G.W., the court concluded that
portion of the dispositional order "may be read as a requirement
that the parents waive their Fifth Amendment Privilege," and
then struck that provision from the order. Id. at 641. The
court explained:
The trial court cannot specifically require
the parents to admit criminal misconduct in
order to reunite the parents to admit
criminal misconduct in order to reunite the
family. On the other hand, the parents must
demonstrate to the court that it is in the
juvenile's best interest to return custody
to the parents in the face of the serious
misconduct the court found they engaged in.
While the court may not specify that the
only route to reunification is an
abandonment of the self-incrimination right,
the parents must expect that the court and
[the child welfare agency] will act based on
the findings of extreme parental abuse. If
the parents can find a way to show that they
26 A-3230-14T2
have become good parents, without admitting
to any misconduct, and that a restoration of
custody of the juvenile to them is in the
best interest of the child and is safe, the
court may not foreclose the option. If the
court finds in the future, however, that the
parents have made no progress to
reunification because their denial prevents
effective therapy, it may act on that
finding to the parents' detriment without
offending the Fifth Amendment privilege.
[Ibid.; accord Mullin v. Phelps, 647 A.2d
714, 724-25 (Vt. 1994).]
Most courts around the country have recognized the
distinction between a court-compelled waiver of a parent's right
against self-incrimination, which violates the Fifth Amendment,
and an order compelling a parent's participation in counseling
or reunification services, the success of which might hinge on
the admission of abuse. See, e.g., In re A.W., 896 N.E.2d 316,
326 (Ill. 2008) ("[A] trial court may order a service plan that
requires a parent to engage in effective counseling or therapy,
but may not compel counseling or therapy requiring the parent to
admit to committing a crime."); In the Interest of C.H., 652
N.W.2d 144, 150 (Iowa 2002) ("The State may require parents to
otherwise undergo treatment, but it may not specifically require
an admission of guilt as part of the treatment."); Minh T. v.
Ariz. Dep't of Econ. Sec., 41 P.3d 614, 618 (Ariz. Ct. App.
2001) (recognizing "a distinction between a treatment order that
requires parents to admit criminal misconduct and one that
27 A-3230-14T2
merely orders participation in family reunification services");
State v. Suzette M. (In re Clifford M.), 577 N.W.2d 547, 558-59
(Neb. Ct. App. 1998) (reversing termination of parental rights
"solely because [the defendant] refused to waive her right to be
free from self-incrimination," but recognizing court may order
enrollment in therapy as "essential to a particular parent's
rehabilitation"), appeal dismissed, 606 N.W.2d 742 (Neb. 2000).
No reported New Jersey decision has squarely addressed this
issue,8 and we find the cited out-of-state decisions to be
persuasive. Here, the November 2013 and January 2014 orders
conditioned any future request by defendant for parenting time
upon his admission of "wrongdoing," which we presume, based on
Perry's testimony, means defendant must admit that he sexually
abused Richard. Such a requirement compels defendant to waive
his privilege against self-incrimination and violates his rights
under the Fifth Amendment and our State Constitution.
8
In In re Guardianship of D.J.M., 325 N.J. Super. 150, 151 (Ch.
Div. 1999), the Family Part considered "whether to stay a
guardianship proceeding pending the outcome of a simultaneous
criminal proceeding arising out of the same facts." While
finding the defendant's Fifth Amendment arguments to be
"compelling," the court concluded the child's interest in
permanency outweighed the defendant's rights, and suggested the
Legislature should grant "use immunity" to parents in the
defendant's position. Id. at 162. Because the issues in this
case are significantly different, we express no opinion about
the court's holding in D.J.M.
28 A-3230-14T2
Although defendant has not specifically challenged the
balance of the November 2013 and January 2014 orders that impose
other preconditions upon him "[p]rior to any application for
parenting time," and further provide he may apply "for
consideration of parenting time" only if he completes these
requirements, we conclude these portions of the orders must also
be vacated.
In Parish v. Parish, 412 N.J. Super. 39, 48 (App. Div.
2010), we recognized that a citizen's constitutional right to
access to the courts applied to matters in the Family Part.
While reaffirming the court's inherent power "to control the
filing of frivolous motions and to curtail 'harassing and
vexatious litigation,'" ibid. (quoting Rosenblum v. Borough of
Closter, 333 N.J. Super. 385, 387, 391 (App. Div. 2000)), we
nevertheless reversed the judge's order enjoining the plaintiff-
father from filing any future motions, including enforcement of
parenting time requests, unless the parties and their attorneys
first conducted a settlement conference. Id. at 44. We
concluded that "in the absence of any finding of a need to
control baseless litigation, the balance struck by the motion
judge in favor of restricting access to the court was an abuse
of discretion." Id. at 51.
29 A-3230-14T2
We reach the same conclusion here. Undoubtedly, this
litigation has been protracted, contentious and, on occasion,
unnecessary. However, defendant has consistently denied that he
abused his son, and so testified at trial. Clearly, the judge
rejected this testimony and found, by clear and convincing
evidence, that defendant had sexually abused Richard. The judge
also clearly accepted Perry's testimony that not only was
defendant's admission of wrongdoing a necessary precondition to
effective therapy and future parenting time, but also that
defendant must undergo individual therapy and submit to a
psycho-sexual evaluation before the process can begin.
Putting aside preconditioning any application of
defendant's admission of wrongdoing, which, as explained above,
violated defendant's constitutional rights, we conclude
imposition of these other preconditions violated defendant's
right to invoke the equitable powers of the Family Part to
modify its order denying him any parenting time. It may well be
that any future application may fail, absent defendant's efforts
to address the very issues Perry saw as vital to the gradual
reinstitution of parenting time. However, the court should not
reach that conclusion in advance of such a request. Although
the judge undoubtedly made a good faith attempt to foreclose
unnecessary motion practice in what had been an excessively
30 A-3230-14T2
litigated case, these provisions of the November 2013 and
January 2014 orders improperly restrict defendant's right to
seek further review by the court.
We vacate Section 3 and 4 of the November 2013 order and
sections 4 and 5 of the January 2014 order.
III.
The balance of defendant's arguments involve both the
procedural aspects of the fee award to plaintiff, and the
justification for those awards. We briefly address these
contentions seriatim.
First, defendant argues the judge erred by granting
reconsideration of the November 2013 order and entering the
January 2014 order that the denial of fees was without
prejudice. We disagree.
Motions for reconsideration are addressed to "the sound
discretion of the Court, to be exercised in the interest of
justice." Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div.
1996) (quoting Johnson v. Cyklop Strapping Corp., 220 N.J.
Super. 250, 257 (App. Div. 1987), certif. denied, 110 N.J. 196
(1988)). Reconsideration is to be utilized narrowly, and
reserved for situations where the court relied "on plainly
incorrect reasoning," where the court failed to consider
probative, competent evidence, or where "there is good reason
31 A-3230-14T2
for [the court] to reconsider new" evidence. Town of
Phillipsburg v. Block 1508, Lot 12, 380 N.J. Super. 159, 175
(App. Div. 2005). (emphasis omitted) (quoting Pressler, Current
N.J. Court Rules, comment on R. 4:49-2 (2005)).
Reconsideration should be exercised "in the service of the
ultimate goal of substantial justice." Casino Reinvestment Dev.
Auth. v. Teller, 384 N.J. Super. 408, 413 (App. Div. 2006)
(quoting Johnson, supra, 220 N.J. Super. at 264).
The November 2013 order denied counsel fees without
prejudice, but the judge clearly anticipated plaintiff's counsel
would be re-submitting a fee request. As already noted, it does
not appear that defendant opposed the motion for
reconsideration. The judge did not mistakenly exercise his
discretion by entering the January 2014 order denying fees
without prejudice to plaintiff submitting a proper request.
Defendant next contends we must reverse the award of fees
to plaintiff because she failed to comply with the governing
court rules, and the award lacked evidential support. We again
disagree.
Counsel fees in a Family Part action are authorized by Rule
4:42-9(a)(1) and determined by application of the factors listed
in Rule 5:3-5(c). The award of fees is discretionary. J.E.V.
v. K.V., 426 N.J. Super. 475, 492 (App. Div. 2012). On appeal,
32 A-3230-14T2
we will not reverse a decision regarding counsel fees absent a
showing of abuse of discretion involving a clear error in
judgment. Chestone v. Chestone, 322 N.J. Super. 250, 258 (App.
Div. 1999) (citation omitted).
Here, the judge carefully considered the appropriate
factors and awarded substantially less than the $81,000
requested by plaintiff. In this regard, he found that plaintiff
had prevailed, although the case could have been "somewhat
abbreviated" and handled in a "more expeditious manner." The
judge considered plaintiff's good faith and ability to pay, as
well as defendant's ability to have employed and presumably paid
"some seven attorneys" throughout the litigation. As noted,
defendant's opposition never asserted an inability to pay.
Next, defendant argues the judge erred in considering his
motion for reconsideration in that the order only modified the
amount of monthly payments. He contends that the tax returns
supplied in support of the motion demonstrate his inability to
pay the award, making the award punitive.
Initially, we note that defendant could have furnished
these tax returns in opposition to plaintiff's fee request, but
choose not to do so. On reconsideration, the judge lowered the
required monthly payment, but implicitly concluded there was no
reason to lower the amount of the total award because of
33 A-3230-14T2
defendant's temporarily depressed income. The judge did not
mistakenly exercise his broad discretion in this regard.
Finally, defendant argues the judge erred by including a
provision in the orders that the award be non-dischargeable in
bankruptcy. He contends "[p]laintiff presented no evidence
which supported her application or warranted the entry of such
an order," and the court lacked jurisdiction, because only the
bankruptcy court could determine whether the debt was
dischargeable. We again disagree.
The issue presents a question of law, to which we apply
plenary review. Manalapan Realty v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995). Whether an obligation to pay an
attorney fee award in a matrimonial action can be discharged in
the obligor's personal bankruptcy case is governed by paragraphs
5 and 15 of 11 U.S.C.A. § 523(a), which provide:
(a) A discharge under [certain
provisions of the Bankruptcy Code] does not
discharge an individual debtor from any
debt—
. . . .
(5) for a domestic support obligation;
[or]
. . . .
(15) to a spouse, former spouse, or
child of the debtor and not of the kind
described in paragraph (5) that is incurred
by the debtor in the course of a divorce or
34 A-3230-14T2
separation or in connection with a
separation agreement, divorce decree or
other order of a court of record, or a
determination made in accordance with State
or territorial law by a governmental unit[.]
[11 U.S.C.A. § 523(a).]9
Federal courts have exclusive jurisdiction only over the
dischargeability exceptions named in 11 U.S.C.A. § 523(c)(1),
Floyd v. Hill, 495 B.R. 646, 654 n.4 (Bankr. D.N.J. 2013), and
neither Section 5 nor Section 15 of 11 U.S.C.A. § 523(a) are
contained therein.
Construing a prior version of Section 5 that contained
additional limiting language, we held "Section 5 'prohibits the
discharge of a debtor's alimony, maintenance or support
obligations to his or her former spouse and children.'"
Winegarden v. Winegarden, 316 N.J. Super. 52, 59 (App. Div.
1998) (quoting Loyko v. Loyko, 200 N.J. Super. 152, 155 (App.
Div. 1985). Even under that version, state and federal courts
exercised concurrent jurisdiction to determine dischargeability
of Section 5 debts. Ibid. (citing Loyko, supra, 200 N.J. Super.
at 156).
When we decided Winegarden, Section 15 debts were included
in the list of exceptions contained in 11 U.S.C.A. § 523(c)(1),
9
Defendant misquotes the current version of the statute in his
brief.
35 A-3230-14T2
and hence, such debts were within the exclusive jurisdiction of
the bankruptcy court. Id. at 59-60. In the current statute,
the combined operation of paragraphs 5 and 15 exempts from
discharge any debt to a spouse, a former spouse, or child of the
debtor that was incurred pursuant to a court order, whether or
not the debt has the nature of a "support obligation." The only
statutory criterion is that plaintiff's attorney fee award is a
debt that arose from a court order issued with regard to a
marital action. It is thus exempt from discharge as a matter of
law, and the court in this case had concurrent jurisdiction to
declare it so. See Davidson v. Soelberg, Case No. 15-01355-TLM,
2016 Bankr. LEXIS 3661 *7 (Bankr. D. Idaho 2016) (holding state
courts share with federal courts the "jurisdiction and the
ability to address dischargeability under" both Sections 5 and
15).
For the reasons stated, we affirm in A-3230-14, except as
to those provisions of the November 2013 and January 2014 orders
which we have now vacated.
As to A-3256-14
Plaintiff's appeal challenges the August 2014 order, which
granted defendant reconsideration and reduced the monthly
payments on the previously-granted counsel fee award. She
argues defendant's motion was untimely and without merit, and
36 A-3230-14T2
the judge should have denied the reconsideration motion and
granted her fees. Plaintiff also challenges the February 2015
order that denied her motion for reconsideration and awarded
defendant counsel fees for opposing the motion via an offset to
the prior counsel fee award. Plaintiff's contentions lack
sufficient merit to warrant extensive discussion in a written
opinion. R. 2:11-3(e)(1)(E). We add only the following.
Rule 4:49-2 mandates that a motion for reconsideration
"shall be served not later than 20 days after service of the
judgment or order upon all parties by the party obtaining it."
(Emphasis added). Rule 1:3-4(c) expressly prohibits the court,
or even the parties by mutual consent, from enlarging that
period of time. See Eastampton Ctr., LLC v. Planning Bd. of
Eastampton, 354 N.J. Super. 171, 185 (App. Div. 2002). While
the party obtaining the order, here plaintiff, is obliged to
serve it upon all other parties, we have held that the time
period runs whenever opposing counsel receives a copy. See
ibid.
Here, the judge failed to make specific findings regarding
the date defendant received the June 9, 2014 order granting
plaintiff fees, however, he implicitly accepted defendant's
certification that he did not receive it from his trial counsel
until June 16. Notably, nothing in plaintiff's opposition
37 A-3230-14T2
papers indicates that plaintiff ever served the order, as
required by the Rule, or when the court served the order. In a
later ruling, the judge reiterated acceptance of the June 16
date. As a result, defendant's motion, filed on July 7, 2015,
was timely.10
As to the balance of plaintiff's claims regarding the
August 2014 order, it suffices to say that the judge indulged
both sides in addressing the fee issue, strove to reach a just
result and exercised his broad discretion in serving "the
ultimate goal of substantial justice." Johnson, supra, 220 N.J.
Super. at 264.
Regarding the February 2015 order, plaintiff contends the
judge erred by concluding her motion for reconsideration was
frivolous, and, as a result, granting defendant fees to oppose
the motion in the form of an offset against plaintiff's fee
award. She further claims the February 2015 order resulted from
"judicial bias."
The judge's written statement of reasons amply sets forth
the excessive litigation that followed the initial award of
fees, including plaintiff's reconsideration motion, which the
judge concluded was "unreasonable," not frivolous. We agree
10
Although July 6 was the twentieth day, it was a Sunday. See
R. 1:3-1.
38 A-3230-14T2
entirely with that assessment. The judge's award of fees to
defendant was completely justified. Moreover, we will not
dignify plaintiff's claims of "judicial bias" with any
discussion, except to say that the judge exercised model
judicial temperament and fairness throughout these proceedings.
Affirmed in A-3256-14.
39 A-3230-14T2