MICHAEL MARTELL v. ANDREA RHEA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0222-05T50222-05T5

MICHAEL MARTELL,

Plaintiff-Respondent/Cross-Appellant

v.

ANDREA RHEA,

Defendant-Appellant/Cross-Respondent.

_______________________________________

 

Submitted May 10, 2006 - Decided June 14, 2006

Before Judges Stern and Grall.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part, Gloucester County, FD-08-23-02.

Andrea Rhea, appellant/cross-respondent pro se.

Michael Martell, respondent/cross-appellant pro se.

PER CURIAM

Defendant Andrea Rhea appeals and plaintiff Michael Martell cross appeals from an order of the Family Part entered on July 22, 2005, providing for plaintiff to have parenting time with their son under defendant's supervision. On appeal plaintiff has presented no argument in support of his cross-appeal, and it is deemed abandoned. In support of her appeal, defendant argues that the order is not supported by the record and the judge erred in entering the order without a hearing. Because the order is not supported by the evidence that is relevant to the best interests of the child, we vacate and remand for further proceedings.

Plaintiff and defendant are the parents of a child born on December 31, 1994. They separated in August of 1998. Defendant and the child reside in New Jersey. Plaintiff lives in Florida.

The following background information drawn from papers submitted on a prior motion is necessary to an understanding of the order under review. Plaintiff filed an application for parenting time dated October 1, 2004, in which he requested a hearing on his right to spend time with his child in New Jersey and in Florida. He acknowledged that he is a recovering alcoholic and asserted that he had been sober for one year and four months. He claimed that he and the child's mother were unable to resolve parenting time. He also alleged that she was not allowing him to have contact with the child and was not providing him with medical or school records. He said he wanted his son to know him and have a relationship with him.

Defendant opposed the application and requested an order confirming her status as custodial parent and awarding her primary physical and sole legal custody. In support of her opposition to parenting time, she certified that while the family was together, plaintiff "had a severe problem with alcohol and was abusive to [their] son and [her]." She described several incidents: his attempt to jump out of the car while she was driving; his ignoring a court order prohibiting his drinking while in the presence of his daughters from a prior relationship; his accidental firing of a gun while intoxicated and holding their child; his driving while intoxicated with the child; his standing over her bed with a baseball bat and telling her he would bash her head in if she did not say he was not drunk; his referring to their child in derogatory terms and threatening to injure him if he had the child alone; his pushing the child and hitting him in the face with a toy; his pulling the child's hair; his injuring the family dog; his sporadic telephone contact with the child following separation, his threatening calls about parenting time and his failure to appear in court on a prior application. Defendant also certified to the child's being tearful and frightened after plaintiff appeared at his school without prior notice.

Defendant explained her opposition to supervised parenting time as follows: "I feel that any contact with the plaintiff could be damaging to [the child's] emotional well-being." On that basis, she requested:

[I]f the court is going to consider allowing any contact between [the child] and the plaintiff, that the plaintiff be ordered to produce his medical records and that he be required to undergo the appropriate expert evaluations and screenings at his expense here in New Jersey to determine the current status of his mental health and alcohol addiction. I am also requesting that any visitation be supervised by a professional who can protect [the child] physically as well as emotionally.

On November 4, 2004, the judge denied plaintiff's request for parenting time without prejudice and permitted him to see the child, under defendant's supervision, on a specified date at defendant's residence for one hour and to attend the child's soccer game on the same date. The judge directed plaintiff to take certain steps before filing a new motion for parenting time:

Plaintiff is ordered to complete a risk assessment before the court will consider parenting time issues. Plaintiff shall choose an appropriate professional to conduct the risk assessment. The court prefers the risk assessment take place in New Jersey; however, if the Plaintiff has a licensed psychologist he chooses to use in Florida, the court will not object. The psychologist shall conduct interviews of both the Plaintiff and Defendant and review all medical records of the Plaintiff, especially those involving his alcohol problems. Plaintiff shall then submit the results of the risk assessment to the court for consideration of parenting time for the Plaintiff by filing a new motion.

The order designated defendant as the child's "parent of primary residence," but denied her request for sole custody.

By letter dated June 11, 2005, plaintiff filed an application for modification of parenting time. He indicated that he had complied with the court's order of November 5, 2004, and appended the following: a confidential psychological evaluation prepared in connection with parenting time with his daughters, which was subject to a protective order; a note from a physician who had treated plaintiff for eighteen months indicating that he had not shown evidence of alcoholism during that time; lab reports dated May 13, 2005; and a risk assessment prepared by a licensed clinical psychologist, Lonny

Weiss, Psy.D., who interviewed plaintiff in person and defendant by telephone. He had also consulted with plaintiff's psychiatrist and primary care physician.

The report of the risk assessment, dated January 24, 2005, included the following pertinent information and conclusions:

There is no reported psychiatric treatment history prior to June of 2003, when he was hospitalized for medical problems related to his excessive alcohol abuse. Mr. Martell reports that date as the beginning of his present period of sobriety as well. He has maintained regular medication management sessions with his psychiatrist, and daily compliance with his Alcoholics Anonymous meetings. He has also begun psychotherapy to address his poor history of coping with stress in his life and his tendency to "self-medicate" with alcohol.

There was clear evidence of his dependence on alcohol, and impaired judgment while under the influence. The medical records from his admission to Atlantic Shores Hospital (6/30/03 - 7/7/03) indicated that he was admitted for mood stabilization and detoxification. He was diagnosed with Major Depression, Alcohol Dependence, and Ethanol induced liver disease by Dr. Flaherty. His blood work at the time indicated that his liver functioning was severely impaired (bilirubin elevated at 2.1, AST elevated at 452, and ALT elevated at 242).

Medical records from his treatment at Holy Cross Hospital (5/17/04) in Ft. Lauderdale, Fl., indicate that he was treated for medical problems and denied alcohol use. The report substantiates his history of liver damage due to his alcohol abuse, however the doctor refers to his Ethanol induced liver disease as "questionable cirrhosis" due to his moderately elevated liver functioning test results. This would corroborate his claims of sobriety, as his liver functioning was apparently improving at this time.

He described his escalation of alcohol use during a period of time where he was going through a divorce. He also reports a strong family history of alcohol abuse and alcoholism. Mr. Martell admits to his history of alcohol dependence, however he is now being treated for an underlying condition of depression as well. One of the roles of his alcohol use was to control his symptoms of depression and anger (self-medication). He also displays candor and remorse over his actions during this period of his life. He is aware of the detrimental effects of his past abusive behavior on the relationships with the people in his life. He expresses a great deal of remorse and sadness over the effects of his inconsistent and volatile behavior on his son. At this point in his sobriety he reports having the desire to build relationships with his children, in a way he was unable to while he was abusing alcohol.

Dr. Shachner in a letter dated December 30, 2004, stated that he did not find any medical evidence in his examination and lab reports that indicated that Mr. Martell had been using alcohol again. . . . Further consultation with his psychiatrist, Dr. David Flaherty, who reviewed copies of Mr. Martell's recent laboratory blood work reiterated this point. . . .

. . . .

Based on the aforementioned information, I do not feel that there is any reason to believe that Mr. Martell is misrepresenting his claim of sobriety. There is no medical evidence to substantiate Ms. Rhea's allegations of his ongoing alcohol use, as verified by Dr. Flaherty and Dr. Shachner. He reports daily compliance with Alcoholics Anonymous meetings and he has a sponsor and support system in place. He attends psychotherapy, and is compliant with his psychiatric medication management. With Mr. Martell's history of excessive alcohol use it is highly unlikely that he is engaging in casual or sporadic alcohol use at the present time. He was unable to control the escalation of his alcohol use in the past and there is no reason to believe that he can do so now.

Ms. Rhea does however bring up several valid points based on her experience with Mr. Martell. Her concern over the emotional effects of visitation with [the child], her fears of Mr. Martell's continued alcohol use, as well as his history of explosive and abusive behavior toward herself and [the child] in the past are all legitimate concerns. To address these concerns it is suggested that visitation begin with a trial period of three supervised visitation sessions. Following successful completion of the supervised visitation, a more open visitation format should be implemented.

Mr. Martell has also mentioned a desire to have his son visit him in Florida at some point in the future, which does not seem like an unreasonable request based on the present assessment. He does realize that this would be asking a great deal of Ms. Rhea, and he stated a willingness to compromise with her on this point ("she would be welcome to come down with [the child] . . . we could meet at Disney World"). It is also suggested that Mr. Martell and [the child] would benefit from counseling to address existing issues in their relationship.

In opposition to plaintiff's renewed motion for parenting time, defendant provided a certification that included the following information about the supervised parenting time conducted pursuant to the order of November 3, 2004:

Plaintiff exercised one supervised visit with [the child]. [The child] resisted having to visit with the Plaintiff and only did so because he knew that I would be present and it would be in our home. Plaintiff was unable to make any type of connection with [the child] and with the exception of some questions that Plaintiff asked [the child], [the child] basically sat on the floor and paid attention to a toy. When Plaintiff wasn't chastising me for talking to his ex-wife or asking me whether I was dating, he talked to [the child] about himself and advised [the child] of the activities that he engages in with his daughters, failing to appreciate the impact of his statements. The November order provided that Plaintiff could attend [the child's] soccer game that day. At the end of the one hour visit, the Plaintiff asked where [the child's] soccer game was and as I told him, [the child] interjected that we don't remember where the game is. There was a look of panic in [the child's] eyes. He clearly did not want Plaintiff at the game. Plaintiff then left.

Defendant also described a phone message plaintiff left for the child, and the child's reaction to it:

Plaintiff thereafter contacted [the child] at the end of December and left a message for [him] on our answering machine. He told [the child] that he was coming to see him in January and would bring him his Christmas and birthday presents at that time. Plaintiff knew that the court order did not allow him any such visitation so his motivation for leaving such a message is beyond reason, but typical of his failure to care about [the child's] feelings and his empty promises. He never even bothered to send [the child] a Christmas or birthday card or presents, which has been the case year after year. [The child] remembered the message and commented to me sometime in February that Michael Martell lied to him again.

Finally, defendant also provided a letter from Dr. Weiss, the psychologist who had conducted the risk assessment. In that letter Weiss indicated that plaintiff had been a patient of his since November of 2004. That fact was not mentioned in Weiss' risk assessment report.

Plaintiff did not submit a response to defendant's certification. On July 21, 2005, plaintiff faxed defendant a note advising that the return date of the motion scheduled for July 22, 2005 would be rescheduled. Defendant appeared on July 22, 2005. Plaintiff did not. The judge advised her that he would not postpone the motion because plaintiff had decided not to appear.

We are constrained to vacate the order. "[T]he answer to [a] visitation question must be dictated exclusively by concern for the child's best interests and not by the conflicting desires, wishes or sensibilities of the parents . . . ." See Fusco v. Fusco, 186 N.J. Super. 321, 326 (App. Div. 1982). The evidence relevant to the best interests of this child was that the parenting time with his father supervised by his mother had not been a positive experience and that the child had suffered when his father failed to follow through with promises he had made.

The judge also had evidence that the father was not prepared to follow through on his plan to pursue parenting time in a manner consistent with the needs of the child. He did not obtain the risk assessment required by the order of November 4, 2004, until January 24, 2005. That assessment, apparently prepared by a psychologist who was also treating plaintiff, recognized that counseling involving the father and child might be necessary to allow them to address issues between them. The father delayed almost six months after receipt of this report before pursuing additional parenting time. He did not request or reference counseling with his son. He then failed to appear on the return date, which was scheduled for the date he had requested.

There was no evidence that the child's best interests would be furthered by parenting time with his father under his mother's supervision. There was evidence that suggested that the experience would not be positive for the child. Nonetheless, the judge entered the order requiring parenting time without conducting a hearing, exercising his discretion to interview the child in order to assess the impact on the child, see R. 5:8-6, seeking a professional opinion on the issue, R. 5:8-1, or considering appointment of a guardian ad litem to gather pertinent information and report to the court. R. 5:8B.

Under all of the circumstances, we conclude that it was an abuse of discretion to enter an order providing for parenting time supervised by the defendant. We recognize that the judge's decision to order some parenting time was based on his valid recognition of the proposition that the law favors parenting time and requires a judge to enter an order that recognizes the parent's right and protects against harm to the child. See Wilke v. Culp, 196 N.J. Super. 487, 496 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985); N.J.S.A. 9:2-4. As we have noted, however, "'the matter of visitation is so important, especially during the formative years of a child, that if a plenary hearing will better enable a court to fashion a plan of visitation more commensurate with a child's welfare'" a plenary hearing is required. Fusco, supra, 186 N.J. Super. at 327-28 (quoting Wagner v. Wagner, 165 N.J. Super. 553 (App. Div. 1979), certif. denied, 85 N.J. 93 (1980)). The issues in this case are complex, and the circumstances under which parenting time can be exercised in a manner commensurate with the child's best interests are difficult and made more so by years of lost contact between the father and son: there is support for that conclusion in the certifications provided by the defendant and Dr. Weiss' report, which was provided by plaintiff.

The order of July 22, 2005, is vacated, and the matter is remanded for further proceedings. We note the judge has not yet addressed the question of legal custody, which should not be left unresolved.

 

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A-0222-05T5

June 14, 2006