VALERIE MILLER v. FLOYD MILLER

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5998-04T25998-04T2

VALERIE MILLER,

Plaintiff-Appellant,

v.

FLOYD MILLER,

Defendant-Respondent.

_______________________________________

 

Argued October 4, 2006 - Decided November 3, 2006

Before Judges Skillman and Grall.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Camden County, FM-04-378-03.

Kourtney A. Borchers argued the cause for

appellant (Davis & Mendelson, attorneys;

Ms. Borchers and Howard S. Mendelson, on

the brief).

Floyd Miller, respondent pro se.

PER CURIAM

Plaintiff Valerie Miller appeals from post-judgment orders entered in this matrimonial case. The orders prohibit her friend Steven from having any contact with her children. The restraint was imposed, with plaintiff's consent, on motion of defendant Floyd Miller, her former husband. Plaintiff's appeal is from the denial of her motion to reconsider an order continuing that restraint. Because the order is based on nothing other than a disputed, vague and unsubstantiated allegation, we reverse.

The following factual statement is based on records of the Division of Youth and Family Services, Department of Human Services (DYFS), court orders and certifications that were submitted to the Family Part. The judge took no testimony relevant to the issue on appeal.

Plaintiff and defendant divorced on April 14, 2003. They have two daughters. The judgment of divorce, which incorporates the parties' property settlement agreement, requires defendant to pay child support to plaintiff but does not address custody or parenting time. By order dated October 3, 2003, defendant was granted parenting time on alternate weekends from Friday until Sunday evening. Plaintiff is the parent with whom the children reside. They are now ten and nine years of age.

On April 16, 2004, plaintiff reported defendant to DYFS. She alleged that he had left the children alone while he went to the mall. On April 23, 2004, case managers from DYFS met with the children at their school. They described the circumstances under which their father had left them in his home. For reasons not clear on the record, the girls were asked "how they liked their mom's paramour, Steven." They reportedly said the following: "they sometimes like Steven"; "he is mean to them sometimes"; he "has spanked them in the past for not listening[,] and he also yells at them." When asked, the girls also said Steven watches them sometimes when their mother is not at home. The oldest child reported that her mother had spanked her with a belt before her parents separated.

When the interview was completed, one of the DYFS case managers spoke to plaintiff, who was at the school but not present when her children were interviewed. The case manager relayed the information that the children disclosed.

On April 29, 2004, a DYFS case manager, a supervisor and a Deputy Attorney General met with defendant. According to the DYFS records, defendant said his primary concern was getting "joint legal custody with visitation." He gave his description of plaintiff's medical and psychological problems and treatments she had received. He also gave an account of the evening that he left his daughters alone, which was consistent with the information the girls had provided.

On April 30, 2004, defendant filed a post-judgment motion in the matrimonial action seeking an order prohibiting Steven from "administering corporal punishment to" his children.

On May 18, 2004, a DYFS supervisor and case manager met with Steven. He denied spanking either child and said he had never been left in charge of the children for more than one-half an hour. He also said that the youngest child is sometimes "nasty" when she does not get her way; plaintiff disciplines her children, and he does not; plaintiff tells the girls to listen to him because he is an adult; he has raised his voice when addressing the children. Steven also was questioned about his medical history and use of alcohol and drugs.

On May 20, 2004, two DYFS case managers again interviewed the Miller's oldest daughter. She reported that her mother recently spanked her sister with a belt.

On June 19, 2004, Steven went to the local DYFS office. According to the agency's report, Steven walked toward the woman who had met with him, "thrusting paperwork at her" and "demanding" that she accept an envelope. He would not say what was inside. When she refused to accept the envelope without an explanation of its contents, he attempted to shove the envelope into her clothing. He did not leave the building when asked, and the police were called. The police opened the envelope; it contained a revocation of Steven's prior consent to a "police check."

DYFS opened a case for services and prohibited plaintiff from allowing Steven to have any contact with the children. There is no evidence that DYFS filed any complaint against Steven or plaintiff. Instead, according to DYFS records, the agency participated as a "friend of the court" in the Millers' post-judgment litigation. The children were never removed from plaintiff's home. On June 25, 2004, with plaintiff's consent, the judge entered a post-judgment order in the matrimonial action, which "restrained [Steven] from having contact with the minor children." The order addressed other matters that are not relevant to this appeal, such as past due support.

DYFS continued to work with the Miller family. Evaluations and safety assessments of the homes of plaintiff, defendant and Steven were completed; the children's school and medical records were reviewed, and the children were seen again. On October 13, 2004, the children reported that they had had no contact with Steven. They also said they missed him. On October 28, 2004, a DYFS caseworker met with Steven who was "receptive" and "open to discussion" about disciplining plaintiff's children.

On October 29, 2004, DYFS wrote to the judge and asked for permission to close its file. DYFS reported: the family had participated in counseling; the children were doing well in school; there was no issues of abuse or neglect. DYFS recommended that the children remain in their mother's home and continue parenting time with their father. DYFS did not recommend continuation of the order restricting Steven's contact with the children. Rather, the agency reported Steven's positive attitude and the children's desire to see him.

Three months later, plaintiff moved to vacate the court-ordered restraints against Steven's contact with the children. Plaintiff, defendant and Steven submitted certifications. Steven denied spanking either of the Miller children or assaulting a DYFS employee. He reported that the supervisor withdrew her complaint against him.

On April 20, 2005, after a review of the certifications and the DYFS file and apparently without a statement of findings and conclusions, the Family Part judge denied plaintiff's motion to vacate the restraint. On May 5, 2005, plaintiff filed a motion for reconsideration of the April 20, 2005 order. On June 17, 2005, the court heard argument. Although the judge recognized that DYFS concluded that the allegation about spanking was unsubstantiated and that the supervisor had dismissed her complaint against Steven, the judge concluded that the incidents had occurred. Without further explanation, the judge entered an order denying plaintiff's motion to vacate the restraints. Plaintiff filed a timely notice of appeal.

The decision to restrict plaintiff from allowing Steven to have contact with her children is not supported by competent evidence. A court may not find a fact material to the disposition of a motion by selecting among competing versions of events or various opinions about the best interest of children reported in affidavits. See Fusco v. Fusco, 186 N.J. Super. 321, 327-29 (App. Div. 1982); Wagner v. Wagner, 165 N.J. Super. 553, 555 (App. Div. 1979). If the affidavits submitted on a motion are sufficient to raise a genuine factual issue, "disputes implicating the welfare of a child and involving conflicting contentions . . . must be submitted to a plenary hearing." Fusco, supra, 186 N.J. Super. at 329. In this case, the judge had no competent evidence that Steven spanked the children. The only evidence was the hearsay statements of the children recorded in DYFS reports and Steven's denial of any such conduct. Even if the children's statements included in the DYFS records could be considered as evidence of the facts asserted, the judge was not free to accept those disputed allegations without hearing any testimony or affording any right of cross-examination. Ibid.

The decision of the motion judge is not entitled to deference. We recognize that determinations about the welfare of children are highly discretionary and should not be disturbed unless the court abused its discretion, failed to consider controlling legal principles or made findings that are so inconsistent with or unsupported by competent evidence as to be clearly mistaken. See Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 157 (App. Div. 2003) (noting our obligation to defer to a trial judge's factual findings and exercise of discretion where the determination is based on the best interests of a child and affirming a ruling that was supported by substantial credible evidence). This decision is wholly unsupported by competent evidence. Accordingly, imposition of restraints based on any determination about Steven's conduct was arbitrary.

Controlling legal principles were also ignored. Interference with a fit parent's decisions about his or her child's associations is not warranted without a showing that the intrusion is necessary to avoid potential harm. See Moriarty v. Bradt, 177 N.J. 84, 112-16 (2003). That showing is required to overcome the presumption in favor of the parent's decision. Id. at 113. "[T]he parent having physical custody of the child is generally accorded broad responsibility in making daily child-rearing decisions." Ronan v. Adely, 182 N.J. 103, 108 (2004) (quoting Gubernat v. Deremer, 140 N.J. 120, 142 (1995)). That principle is supported by the "supposition that the primary caretaker 'act[s] in the best interests of the child . . . .'" Ibid. (quoting Gubernat, supra, 140 N.J. at 145) (alteration in original). That supposition is based on the primary caretaker's ongoing exposure to the children and familiarity with their problems and needs. See Pascale v. Pascale, 140 N.J. 583, 606 (1995) (quoting and approving Brzozowski v. Brzozowski, 265 N.J. Super. 141, 147 (Ch. Div. 1993)). Thus, courts do not interfere with a primary caretaker's day-to-day decisions about activities or discipline "unless some basic problem involving the welfare of the child is involved." Pogue v. Pogue, 147 N.J. Super. 61, 64 (Ch. Div. 1977) (declining to consider primary caretaker's decision to allow a child to participate in sports despite poor grades in school).

The judge in this case did not consider these controlling legal standards. The plaintiff is entitled to the presumption that her decision that the children's contact with Steven is not inconsistent with their best interests. There is no question that she is the children's primary caretaker and no evidence that she is not fit to serve in that role.

The evidence presented below falls so far short of what is necessary to overcome the presumption in favor of plaintiff's decision, that we decline to remand for a hearing. See Fusco, supra, 186 N.J. Super. at 327-29. The report about "spanking" and "yelling" is extremely vague; no details about what the children allegedly reported were provided to the judge. Moreover, we fail to see how the report about Steven's conduct in the DYFS office has any relevance to the question of potential harm to the children. Cf. Mishlen, supra, 305 N.J. Super. at 646 (discussing trial testimony that "revealed instances of abusive conduct by [mother's paramour] against the children of two of his prior wives" and concluding that the evidence was sufficient to support a finding that defendant's children would be in danger if exposed to him). In short, there is nothing that raises a genuine question about a "basic problem involving the welfare of" these children that would warrant intervention by a court. Pogue, supra, 147 N.J. Super. at 64.

Reversed.

 

Although Steven was never made a party to this action, the order purports to restrain his conduct. See R. 4:4-4; R. 5:4-4. We have recognized that a court may require a parent to refrain from exposing his or her children to a person who poses a threat of harm, Mishlen v. Mishlen, 305 N.J. Super. 643, 646 (App. Div. 1997). There is no authority that permits entry of an order directly restraining a person who has not been made a party to the action and over whom the court has no jurisdiction. Plaintiff does not challenge the order on that ground, and Steven did not participate in the proceeding below or on this appeal.

Nothing in the record or briefs indicates that the judge placed her findings and conclusions on the record or provided a written statement of the reasons for continuation of the restraint.

(continued)

(continued)

11

A-5998-04T2

November 3, 2006

 


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