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NOT FOR PUBLICATION WITHOUT THE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.
2 A-5168-14T2
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,
3 A-5168-14T2
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.
4 A-5168-14T2
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.
. . . .
5 A-5168-14T2
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.
6 A-5168-14T2
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
7 A-5168-14T2
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
8 A-5168-14T2
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.
9 A-5168-14T2
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.
10 A-5168-14T2
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
11 A-5168-14T2
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
12 A-5168-14T2
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.
13 A-5168-14T2
H.C.F. VS. J.T.B. (FV-14-1099-15, MORRIS COUNTY AND STATEWIDE)(RECORD IMPOUNDED)
Combined Opinion