JOHN W. CUMMINGS v. DOROTHY AMES f/k/a DOROTHY CUMMINGS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3254-0423254-04T2

JOHN W. CUMMINGS,

Plaintiff-Appellant,

v.

DOROTHY AMES f/k/a

DOROTHY CUMMINGS,

Defendant-Respondent.

_______________________________

 

Argued September 26, 2005 - Decided

Before Judges A. A. Rodr guez and Alley.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, FM-11-512-01E.

Maria P. Imbalzano argued the cause for appellant (Stark & Stark, attorneys; Ms. Imbalzano, of counsel and on the brief).

Dorothy Ames, respondent, did not file a brief.

PER CURIAM

This is an appeal by plaintiff from certain orders pertaining to the conditions of defendant's child visitation that were entered by the Family Part after the judgment of divorce. The divorce action was tried before Judge Jane Grall, who at the conclusion of seventeen days of trial issued a written opinion of ninety-four pages, which she implemented through an Amended Dual Final Judgment of Divorce filed May 5, 2003. Judge Grall assigned residential custody of the children to plaintiff and also gave him principal authority with respect to daily and "major" decision-making on behalf of the children. Judge Grall specified that the parenting time exercised by defendant was to be subject to particular limitations or conditions, for example, that it was to take place in the presence of a professional, such as a licensed counselor, certified teacher, or licensed social worker.

The requirement of supervised visiting time was to continue until plaintiff tested negative for both alcohol and other non-prescribed medication or controlled substances for a period of four months. The testing was to be conducted by a Dr. Gursky, at a minimum weekly, and he was authorized to do so on a random basis. Judge Grall also specified the days and times for defendant's supervised visiting time.

Beginning in later 2004, when Judge Grall no longer was assigned to the Family Court, the visitation conditions that she had imposed came before the trial court in further proceedings, which were presided over by Judge Jack N. Sabatino. In a March 28, 2005, letter submitted pursuant to R. 2:5-1(b), Judge Sabatino summarized the background and nature of these further proceedings, stating:

The parties to this litigation, who were divorced in May 2003 and who have a history of acrimonious conflict, presented to the Family Part a series of post-judgment applications in the past four months. The applications all concerned the terms and conditions of the mother's parenting time with the parties' three unemancipated children, who are presently ages 15, 10 and 9. The motion practice began with an Order to Show Cause filed by the mother, Dorothy Ames, and served on the father, John Cummings, in late November 2004.

Those various applications, as well as an ensuing request for guidance raised by a court-designated expert, led this trial court to issue five successive orders on December 20, 2004, January 21, 2005, January 28, 2005, February 28, 2005 and March 10, 2005. Each of those orders was issued after hearing the arguments of counsel on the record.

The December 20 and January 21 orders temporarily and partially relaxed supervisory constraints on the mother's parenting time, pending updated assessments by court appointed experts and further judicial review. After additional motion practice took place on January 28, this court restored those constraints, in light of the mother's failure to have subjected herself on a timely basis to court-ordered drug testing. Such drug testing had been an important concurrent condition on the interim partial relaxation of the supervisory constraints.

Further issues emerged between the parties about the mother's parenting time. This prompted yet another application to the court in mid-February 2005. After oral argument, the court issued a fourth order on February 28, 2005. That order enforced and clarified the mother's obligations to disclose to the father certain of her medical and psychological treatment records. The order also resolved specific logistical issues that had cropped up concerning the mother's resumed supervised visits with the children and her associated drug testing obligations.

Most recently, this lower court issued a fifth order on March 10, 2005. That order resulted from a March 8 letter to chambers from an expert psychiatrist, Elliot J. Gursky, M.D., seeking guidance about the court-ordered drug testing procedures for the mother. After an emergent telephone conference on the record with counsel, the court resolved Dr. Gursky's inquiry in the March 10 order.

Subsequently, this court received from Dr. Gursky on March 11, 2005 documents indicating that the mother had tested negative for drugs on samples drawn from her on February 24, 2005. No further testing results have been since received by this court from Dr. Gursky.

Continuing the description of the recent proceedings before him with respect to the conditions of visitation and the extent of defendant's compliance or non-compliance therewith, Judge Sabatino explained the status:

At this juncture, the status quo is that the conditions on the mother's supervised parenting time expressed in the 2003 divorce judgment are back in full force, with certain agreed-upon modifications. Those modifications allow the preservation of "split samples" of the mother's urine and also designate a piano teacher to serve as a parenting-time supervisor. Meanwhile, the mother's application, which she originally pursued through her November 2004 Order to Show Cause, seeking to increase her parenting time hours and to end professional supervision of her visits with her children, remains denied without prejudice.

. . . .

This court's rulings on the mother's Order to Show Cause on December 20, 2004 and the father's subsequent motion for reconsideration heard on January 21, 2005 had the effect of partially relaxing, on an interim basis, a provision on page two of the parties' Amended Final Judgment dated May 5, 2003. That provision reads as follows:

[U]ntil further Order, [the] defendant [mother] will have parenting time in the presence of a professional (licensed counselor, certified teacher, licensed social worker) to be selected by her with notice to [plaintiff], until such time as she has tested negative for a period of four months, for both alcohol and any other non prescribed medication or controlled substance.

[Amended Dual Final Judgment of May 5, 2003, at page 2, unnumbered paragraph 5.]

At this point, Judge Sabatino reviewed in further detail the origins of the conditions imposed by Judge Grall on visitation, as well as the series of motions that had been presented to him in and after November 2004:

The final judgment was the result of a seventeen day trial in December 2002 and January 2003 before Judge Grall, who issued a comprehensive 94-page opinion in May 2003. The trial revealed that the defendant mother had a history of drug and alcohol abuse. That history supported Judge Grall's determination to require the mother to undergo post-judgment drug monitoring by Dr. Gursky, and also to require the mother to arrange a professional supervisor to be present during her parenting time, until the mother's condition had demonstrably stabilized with four months of negative drug test results.

In November 2004, the mother presented six certifications with her post-judgment Order to Show Cause, one from herself and five from third parties. Two of the certifications were from treating physicians updating the mother's physical and mental health, and identifying prescription medications that she was taking. Another certification came from a social worker who had been providing weekly psychotherapy to the mother for the past year. The therapist attested that the mother had remained sober and in recovery without relapse during that year of treatment. The mother also supplied certifications from two professionals who had supervised her parenting time with the children in the preceding four months starting in July/August 2004, and who attested that the mother and the children had interacted appropriately during those supervised visits.

The mother's Order to Show Cause principally sought three things: (1) increased parenting time with the children; (2) the elimination of the requirement that she undergo drug testing, because of professed concerns that her prescribed medications might produce "false positive" readings, and (3) an end to the condition of professional supervision of the mother's parenting time, the mother citing that the past supervision had cost her $7,000 in professional fees over a four-month period.

All of these requests were opposed by the father, who filed two successive reply certifications. Prior to the return date, the court directed that the parties participate in mediation pursuant to R. 1:40-5. The mediation was unsuccessful.

In his explanation, Judge Sabatino thoughtfully reviewed at length the proceedings and order of December 20, 2004, stating in particular:

As the December 20 order and the related transcript reflect, this court rejected the first two components of the mother's prayers for emergent relief.

First, this court found it premature to determine if a sufficient change in circumstances existed to warrant an increase in the mother's parenting time with the children. It denied that request without prejudice, anticipating the need for additional expert input and a fuller hearing at a future time. Toward that end, this court directed counsel to attempt to agree on a new psychological expert to examine the current circumstances, and, in particular, "to determine whether any adjustment in the parenting time schedule and supervisory arrangements [is] in the best interests of the children." See December 20, 2004 Order at l. This court also directed that a psychologist who had previously treated the children, Dr. Alan Gordon, report as to whether he recommended that any resumed counseling with the children was now desirable.

Second, the court attempted to resolve the mother's professed concerns about "false positive" drug readings by suggesting that her screening specimens be collected on a "split sample" basis. Such split-sampling would enable the mother to have her own expert evaluate the same specimens evaluated by Dr. Gursky, and potentially have such an expert offer competing proof that any positive readings that might ensue were caused by prescription medications or by other benign factors. That suggestion for split-sampling was readily accepted at oral argument by both counsel.

Accordingly, this court did not grant the mother's application to be excused from drug testing, directing instead in paragraph 5 of the December 20, 2004 order that:

"Judge Grall's May 1, 2003 decision with regard to drug testing is CONTINUED. Any drug screening may be conducted [with] "split samples" allowing the defendant to have her own experts test the samples to possibly refute any possible [sic] false positives."

[December 20, 2004 Order Resolving Order to Show Cause, 5.]

The December 20, 2004 transcript also expressly underscored the mother's continued obligation to submit to drug testing. (footnote omitted) Thus, this court on December 20 had fully anticipated that the mother would soon begin such testing, now having in place the protection of a split-sampling protocol.

This court also considered on December 20 the mother's request to halt the ongoing expense of hiring professional supervisors to be present during her twice-per-week parenting time with the children. As the transcript reflects, this court was unpersuaded that the record before it was sufficient to terminate such supervision altogether. However, this court did exercise a measure of discretion by partially relaxing the terms of such professional supervision on an interim basis.

Specifically, the court allowed the mother, pending further review and additional expert input, to have a professional supervisor present on an alternating basis. On the alternate visits where such a paid professional supervisor was not present, the court directed that a non professional monitor must be present. The monitor could be the parties' nanny, their 15-year old eldest daughter (if and only if she was willing to serve in that role), or some other relative or other third party jointly agreed to by the parties. In the meantime, the court contemplated that the mother's drug testing would go forward, and that Dr. Gordon and the new court-appointed evaluative expert would assess the circumstances and report back to the court and the parties.

In the March 28, 2005, R. 2-5-1(b) letter, Judge Sabatino further took "the opportunity to expand and reflect upon those perceptions here," stating

[f]or one thing, this court recognized on December 20 the cumulative force of the certifications from the two physicians, the two parenting time supervisors and from the mother's weekly therapist submitted in support of the Order to Show Cause. Those certifications attested, under penalties of perjury, quite favorable information about the mother's progress in abstaining from alcohol and drugs, about her prescribed medications and pending lower back surgery, and observations of her appropriate recent interactions with the children. These certifications were unrebutted by any proofs from the father indicating that the mother had engaged in any aberrant behavior since 2003, such as acting inappropriately with the children or exhibiting signs of some form of relapse.

Although the court did recognize that the burden to alter terms of the May 2003 final judgment rested with the mother as the moving party on the Order to Show Cause, the court perceived that she had come forward with sworn proofs that were at least sufficient to suggest that circumstances had changed in the ensuing year and a half. In the face of that new information, the court was concerned that the trial proofs from 2002 and early 2003 warranting tight constraints on the mother's parenting time may have become stale. Hence, the court set in motion a fresh round of expert evaluations, contemplating that it would conduct a full-blown plenary hearing in a few months time with the benefit of such updated expert input.

This court also was struck by the copious actual costs of the professional supervisors who had been present for the mother's parenting time. The mother certified in her moving papers that those fees had amounted to $7,000 over approximately a four-month period, a sum which, for comparative purposes, would correspond to about $21,000 on an annualized basis. It was unclear from the record whether such cost projections for professional supervision had ever been presented to Judge Grall. With at least another four months of supervised visitation looming (albeit as the result of the mother's prior failure to undergo drug tests), this court was concerned about the magnitude of those expenses, there being no indication in the record that they were covered by any insurance.

Hoping to ease that financial burden temporarily, this court devised an interim arrangement to alternate the mother's parenting time, so that professional supervisors would be present with the mother only half the time, and on the other occasions her parenting time would be monitored by a designated non-professional. Presumably that abatement would save half the costs of such expensive supervision. Those savings would offset, in part, the costs of additional legal and expert fees that the mother would incur in preparing for any future plenary hearing (footnote omitted) on her deferred requests to expand her parenting time and for other relief.

Aside from the cost savings involved, this court also conceived that its partial relaxation order would offer useful opportunities for the mother and the children to fortify their relationships in a gradual and less-stilted manner, perhaps aiding an eventual transition to completely-unsupervised parenting time. The court envisioned that these experiences could supply helpful background for the court-appointed experts who would be reporting back to the court. Also, knowing that her motion to increase her overall parenting time had been denied without prejudice, the mother would have a strong incentive to behave responsibly during those interim visits, by demonstrating continued responsibility and sobriety while under the continued oversight of the court.

On the other hand, the court did not believe that its interim order of partial relaxation would pose substantial dangers. The professional supervisors would be present with the mother and the children every other visit (or, if more convenient, every other week of visits). If the mother were so foolish to resume a pattern of aberrant behavior in the presence of the children, the court believed that such a pattern would be apt to come to the attention of the supervisors during their own visits. Such conduct also would be likely to be reported to the children's father or to the court-appointed expert. In addition, a monitor would be present during those alternating sessions. (In retrospect, the court does acknowledge that it should have disqualified the 15 year old daughter from the list of persons eligible to assume the role of monitor, even though she otherwise was serving as a babysitter at times for her younger siblings.)

Most significantly, the court had presumed on December 20 that the mother was going to abide by concurrent drug testing during the interim period in which professional supervision would be partially relaxed. That testing would reveal if the mother had some lapse in her sobriety, and provide the court and the parties with an immediate basis to restore the prior constraints on parenting time, or even more drastic measures, if warranted.

For these various reasons, the court included a provision in paragraph 3 of its December 20, 2004 Order that allowed the mother's parenting time to be professionally supervised on an alternating basis, commencing the week of January 3, 2005. The father thereafter filed a motion for reconsideration, which was heard on January 21, 2005.

With respect to the proceedings before him on January 21, 2005, concerning plaintiff's motion for reconsideration, Judge Sabatino noted that

[t]he mother filed a cross-motion which, among other things, sought to defer her drug testing until after her upcoming back surgery was completed.

The Judge added that the "motion objected to the interim relaxation of supervision, emphasizing that Judge Grall's May 2003 order had called for the mother to have four months of negative drug tests before supervised visits could be lifted." He continued,

Prior to the January 21 oral argument on the father's reconsideration motion, this court circulated a written Tentative Decision to counsel.

The Tentative Decision indicated that the court was not inclined to grant the father's motion to reconsider the partial relaxation of professionally-supervised visits. In addition, the Tentative Decision stated that the mother's request to postpone substance abuse testing until after her impending back surgery would likewise be denied. It specifically directed that her drug testing would commence the following week, no later than January 28, 2005, and that her failure to comply would result in the immediate forfeiture of her parenting time. The Tentative Decision also designated Dr. Mark White to serve as the court's appointed psychological expert, the parties to agree on the choice of such an expert.

At the January 21 oral argument on the Tentative Decision, the court was unpersuaded by the arguments of the father's counsel to reconsider the December 20 Order. In addition to the points noted above, the court also noted that the mother had several unsupervised visits since the December 20 Order, and that there was no proof before it of any aberrant behavior on those occasions. Moreover, the mother's counsel did not express at oral argument any disagreement with the Tentative Decision's concurrent provisions for drug testing.

Accordingly, the Tentative Decision was adopted. As a further measure, the court granted the father's counsel's oral request (which was unopposed by the mother's counsel) to obtain discovery of the mother's medical records from the providers who had supplied certifications in support of her original Order to Show Cause. To expedite the turnover process for those records, counsel signed Protective Orders in the courtroom.

But the further proceedings were not yet over, as Judge Sabatino's letter elaborates:

Had this court known on January 21, 2005 that the mother would not appear, as directed, for drug testing during the week of January 28, 2005, it would have granted the father's motion for reconsideration. It had denied the reconsideration motion on the assumption that such concurrent testing would have commenced the following week. In retrospect, that assumption was mistaken.

In fact, the mother filed an Order to Show Cause on January 28, belatedly seeking, in effect, reconsideration of her drug-testing requirement. That application was summarily denied. Given the mother's failure to obtain a timely drug test, the Court vacated the December 20 Order's interim relaxation of parenting-time supervision, and required that all visits again be professionally supervised. The court subsequently awarded plaintiff a counsel fee of $300.00 for the unnecessary appearance on January 28 on an issue that could have been dealt with on January 21.

The upshot of this chronology is that on about four or five days in January 2005 the mother experienced parenting time with her children without the presence of a professional supervisor, but in the presence of a monitor.

. . . .

By December 2004, the mother had a four month track record of positive supervised parenting, documented by the sworn certifications of two professionals. Her therapist certified that she had been drug and alcohol free for over a year. The mother was now active as a physical education teacher, homeroom mother, PTO member and Brownie Troop leader. Over $7,000 already had been expended on supervised parenting, a prodigious sum that may well not have been contemplated in May 2003. None of this more recent information was factually rebutted in the father's submissions. The children also were nearly two years older than they had been at the time of trial.

Given the evolved state of the record, this court believed that a partial interim relaxation of professionally-supervised parenting, coupled with regular, concurrent drug testing, did not run afoul of the spirit or intent of the final judgment.

. . . .

For the reasons explained above, the court regarded its partial relaxation of the condition of professional supervision as only an incremental and temporary measure, the results of which would be more fully assessed at a future plenary hearing. The court recognized that such a full-blown evidentiary hearing was apt to take months to arrange, and in the meantime thousands of dollars would have been otherwise dissipated in paying the fees of the professional supervisors.

In sum, the court attempted through the December 20 and January 21 rulings to fashion an interim solution to the parties' immediate conflict, one which it believed at the time to be practical, equitable and consonant with the interests of the children. As it turned out, that temporary measure was predicated upon a mistaken assumption - that the mother would begin regular drug testing with dispatch. Once that assumption was not borne out, the court promptly restored the full measure of pre-existing constraints.

What we are presented with in essence at this point, therefore, is this. After Judge Grall issued the amended final judgment of divorce in May 2003, Judge Sabatino succeeded her in presiding over the case. He was made aware in late 2004 that certain issues had arisen concerning the requirements originally imposed in May 2003 by the trial judge with respect to the conditions of visitation by defendant. Out of a desire to minimize the expense and inconvenience to the parties, among other reasons, he made certain modifications in the visitation requirements instead of holding an immediate evidentiary hearing.

In all the circumstances, including those enumerated by the judge in his letter submitted pursuant to R. 2:5-1(b) dated March 28, 2005 (a further letter dated March 24, 2005 was also submitted), we see no basis at present for reversing or requiring reconsideration of the orders of the motion judge that have been brought before us by plaintiff on this appeal.

We of course defer to the recent discretionary determinations of the motion judge in this respect. We share a recognition of the importance of the Family Part monitoring, with alertness and sensitivity, the requirements and conditions the trial judge imposed on defendant's visitation. Also, we recognize the need for an adequate record to be made in the event further modification thereof, if any, is to be considered.

We are persuaded, considering the totality of the circumstances, that the appropriate course is to remand to the Family Part so that the motion judge can hold a plenary hearing on (1) the issues addressed in his March 28, 2005 letter, to the extent they implicate issues regarding the conditions imposed on defendant's visitation, (2) whatever modifications, if any, should be made therein, and (3) defendant's compliance or noncompliance with those conditions.

We do so without finding any error or abuse of discretion by Judge Sabatino in his careful handling of this heavily litigated dispute, involving as it has a rapidly-evolving factual setting and implicating issues that are among the most sensitive in our jurisprudence, namely, visitation and its interplay with the interests of children and parents. The judge responded ably and promptly. We are satisfied that the focus at this point now must be the prompt resolution of the pertinent factual issues in a plenary hearing. We accordingly direct that such a plenary hearing be completed and that the findings by the motion judge with respect to the results of the plenary hearing be placed on the record no later than December 1, 2005.

The orders under appeal are affirmed. We remand for a plenary hearing, including entry of findings in a timely manner consistent with the foregoing directions; we do not retain jurisdiction.

 

(continued)

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3

A-3254-042

RECORD IMPOUNDED

October 17, 2005