YOLANDA DORAN v. WILLIAM DORAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3735-04T33735-04T3

YOLANDA DORAN,

Plaintiff-Appellant,

v.

WILLIAM DORAN,

Defendant-Respondent.

__________________________________

 

Submitted October 25, 2005 - Decided

Before Judges Coburn and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FM-07-1307-03.

Alan S. Albin, attorney for appellant.

Ellen C. Marshall, attorney for respondent.

PER CURIAM

This is a matrimonial case. Plaintiff, Yolanda Doran, appeals from a trial court order of February 18, 2005, denying her child custody application and ordering her to pay counsel fees to her former husband, defendant, William Doran. We reverse and remand for further proceedings consistent with this opinion.

I

The parties were married in 1995. They have three children, all of whom have special needs in the form of autism or other developmental disabilities. The parties were divorced in January 2004. Their judgment of divorce incorporated an agreement on joint custody, with the father having primary residential custody. In May 2004, plaintiff made a motion for residential custody of the children, then ages six, eight and nine. Defendant cross-moved to enforce child support.

The essence of plaintiff's motion was that defendant was leaving the children in the care of his mother, who was an alcoholic, and that he was not personally caring for the children. At oral argument, plaintiff's counsel conceded that at the time of the divorce settlement, the parties understood that defendant's mother would provide child care, as she had while the parties were married. But counsel contended the parties had agreed that defendant's mother would not drink when the children were present. Defendant's counsel denied that the grandmother had an alcoholism problem, contending that "Now, all of a sudden, we have an alcoholic grandmother. We had no alcoholism except in Mrs. Doran's imagination."

The trial court denied plaintiff's motion on the grounds that, if the grandmother had an alcohol problem, the parties were aware of it when they agreed to the divorce settlement. The court granted defendant's cross-motion to enforce support, emphasizing that since plaintiff earned approximately $75,000 per year while defendant earned about $28,000 annually, support payments were essential.

Plaintiff filed a similar motion in September 2004. Defendant opposed the motion and sought counsel fees. At oral argument, the court focused on the issue of the grandmother's alcoholism and whether the children were at risk. The following colloquy occurred between the judge and plaintiff's counsel:

COURT: Okay. What specifically has changed from your argument, which I considered at length in the summer and now, to cause me to change my mind on that issue?

MR. TORAYA: Your Honor, when we stood before the court last time, we were told specifically [by defendant's counsel] that the grandmother's alcoholism was a figment of our imagination, was something that didn't exist. . . Was something that we were making up in order to try to get custody back. We didn't have an alcoholic seizure [that] occurred after the fact to prove that, what we suspected was, in fact, true.

Now we have that, Your Honor. She just doesn't have an alcohol problem, she has an alcohol problem that is to such an extent that it has her in a seizure on the floor where the paramedics have to be called and she's hospitalized. . .

By the defendant's own admission, he says that now, oh, my mother does have a problem with alcohol, but it's not to the extent that my client claims it is.

How can this type of a motion be decided on the papers with certifications, Your Honor? I'm asking today for a plenary hearing . . .

The trial court denied plaintiff's request for an evidentiary hearing, because plaintiff had not produced evidence that the children were at risk. The court concluded that because the Division of Youth and Family Services (DYFS) had been called and had not acted to remove the children, there was no basis for the court to intervene. The record, however, contains no documentation concerning an investigation by DYFS nor did the trial judge indicate that he had obtained or reviewed any reports from DYFS. The court remarked:

[Defendant] admits his mother has an alcohol problem. There are alcoholics who run businesses. [There] are probably alcoholics who are judges. I dare say there may even be alcoholics who are attorneys. That's not the litmus test.

The litmus test is, are the children [at] risk or are they not at risk. And I'm not going to get it from your client and, frankly, I'm not going to get it from Ms. Marshall's client. . .

So if you want to establish something like that, then go the way of the professionals, the educators, the people who see these kids day in and day out.

I'll give you an opportunity to confer with your client. If she knows - - how many days have they missed school? What are their marks? Are they complaining to the nurse? Are they acting strangely in school?

Defense counsel conceded that the grandmother was an alcoholic, but contended:

So to the extent that there was a problem, she is now in Alcoholics Anonymous. She has sought treatment, she is receiving treatment. And as Your Honor pointed out, there has been more than enough activity in this household between the police and the paramedic[s] that, if there were something alarming, I'm sure they would have called DYFS.

Defendant did not submit any legally competent evidence concerning the allegedly improved status of his mother's alcoholism condition. He submitted his own certification asserting that she was receiving treatment, but he did not submit a certification from his mother or from anyone from whom she was receiving treatment.

The trial court stated the following reasons for denying the motion without holding an evidentiary hearing:

[T]here's a time when advocacy has to give way to common sense. I have a situation here with three kids, the middle of a school year, they're going to school, they're doing well in school. There are no problems manifested. No complaints by doctors. No complaints by nurses. DYFS comes in, nothing wrong. And you want me to yank these kids out?

And you even want a plenary hearing to put people through enormous expense because a plenary hearing would be predicating mental health experts, it probably would be 20/$25,000 by the time you're done.

You have to make more of a showing than a perception by your client in order to even get me to consider that.

The trial court suggested that if plaintiff were willing to pay for a "mental health expert" to interview the parties and the children, he would consider such an application in the future, but that he would not order such relief in response to plaintiff's motion to change custody.

II

After reviewing the record, we conclude that the trial court erred in denying plaintiff's application without holding an evidentiary hearing. We can understand the trial court's reluctance to impose on the parties the expense associated with a custody trial. But plaintiff presented undisputed legally competent evidence that defendant was leaving three special needs children in the care of a person with alcoholism. A child care provider's untreated alcoholism may endanger the safety of the children, even if the provider is a warm and loving person who ordinarily takes good care of them. Certainly, an undisputed allegation that the grandmother passed out due to an alcohol-induced seizure warranted a more searching inquiry from the court. Defendant, having belatedly admitted his mother's alcoholism, presented no legally competent evidence to support his contention that she was receiving treatment for her condition.

Plaintiff presented evidence that raised a material factual issue concerning whether the custodial situation was in the children's best interest. She raised a significant issue that the trial court was obligated to address and resolve. R. 5:8-6. On this record, she was entitled to an evidentiary hearing. See Mackowski v. Mackowski, 317 N.J. Super. 8, 11 (App. Div. 1998). Even if, after a hearing, the court determined not to change custody, the court might place conditions on defendant's child care arrangements to ensure the children's safety. See Unger v. Unger, 274 N.J.Super. 532, 541-42 (Ch. Div. 1994).

Before conducting a hearing on remand, the trial court may choose to appoint an independent expert to interview all parties and the grandmother, to investigate the status of her treatment for alcoholism, and to report to the court on that issue and on the issue of custody. See Wist v. Wist, 101 N.J. 509, 514 (1986). The decision to appoint an expert should be made in the court's judgment, ibid., and should not depend on whether plaintiff volunteers to pay for the expert.

The award of counsel fees is vacated. The issue shall be reconsidered after the conclusion of the proceedings on remand.

Reversed and remanded.

 

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A-3735-04T3

November 9, 2005