WILLIAM FLESCHE v. KAREN FLESCHE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6046-04T26046-04T2

WILLIAM FLESCHE,

Plaintiff-Respondent,

v.

KAREN FLESCHE,

Defendant-Appellant.

_______________________________________

 

Argued May 23, 2006 - Decided

Before Judges Axelrad and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, FM-15-996-04-C.

William L. Boyd argued the cause for appellant (Boyd & Boyd attorneys; Mr. Boyd of counsel and on the brief).

Jerome J. Turnbach argued the cause for respondent (Tomasik, Horn & Turnbach attorneys; Agnieszka Rybar, on the brief).

PER CURIAM

Defendant Karen Flesche appeals a June 10, 2005 order of the Family Part declaring her ex-husband, plaintiff William Flesche, Jr., the primary residential custodian of the parties' thirteen-year-old son. The order also directed her to pay plaintiff child support, one-half of the son's extracurricular expenses, and counsel fees. We affirm the substantive portions of the order, on certain conditions explained in this opinion, but remand the counsel fee award for further proceedings.

I.

The parties were married in July 1998. They had two children together: a son born in May 1992 and a daughter born in September 1996. During the latter part of the marriage, the wife became romantically involved with her son's ice hockey coach. Her relationship with that man, who no longer coaches her son, continues to this day. The relationship was a major reason for the ensuing divorce proceedings, which culminated in a consensual Dual Judgment of Divorce entered on July 20, 2004.

Under the Property Settlement Agreement (PSA) attached to the divorce judgment, the parties agreed to share joint legal custody of their two children, with the husband being designated as the parent of primary residence and the wife being designated as the parent of alternate resident. The parties agreed to have the children attend school in the district of the husband's residence. The PSA also specified that the mother would have parenting time with the children every other weekend and for four hours every Tuesday and Thursday evenings. In consideration of these shared parenting arrangements, the parties mutually waived child support.

The wife's ongoing relationship with the hockey coach unfortunately has had a severe impact on the son. Embarrassed by and unable to accept the relationship, the son has become alienated from his mother, in spite of her repeated entreaties for him to rebuild their bonds. At the time of the divorce, the parties and their son were in therapy and specifically agreed in their PSA to continue that therapy with that particular counselor. The parties also promised one another in the PSA to desist from doing "anything to alienate the children's affection for the other [parent] or [to] color the children's attitude toward the other [parent]." In that same vein, the parties affirmatively committed themselves in the PSA "to cooperate in every way to help the children better adjust to the circumstances as they now exist and may in the future exist."

Since the July 2004 divorce, the mother has maintained regular parenting time with her daughter. However, the son has persistently refused to spend time with his mother. He has chastised his mother with coarse language and treated her with disrespect. The son has declined invitations to spend time with his mother in recreational activities, will not speak with her on the telephone, and has rebuffed her gifts and holiday cards. He continues to live exclusively with his father and does not join his sister when she has parenting time with their mother.

The record also reflects, regrettably, that the parties have discontinued counseling sessions. Apparently, the therapist designated in the PSA refused to continue working with the family after discovering, during a November 2004 therapy session, that the mother was in possession of a cassette tape recorder. The mother contends that she was not taping the session, and simply had the recorder, which fell out of her handbag, in her possession because she wanted to have proof that her ex-husband had been calling her names in the presence of the children.

Despite her son's continued estrangement from her, the mother did not arrange post-divorce therapeutic counseling with another professional, nor did she seek any relief from the court. Meanwhile, the father continued to function as the sole residential parent for the son, despite receiving no child support from the mother to assist him with that financial burden.

Eventually in May 2005 the father filed a motion with the Family Part, returnable June 10, 2005, seeking a declaration of himself as the primary custodial parent for the son, subject to future parenting time "as agreed upon by the parties." The father's motion also sought child support from the mother, as well as the collection of past due sums for her share of the costs of the son's extra-curricular activities, including hockey expenses.

Although a response to the motion was due from the wife by June 2, 2005, see R. 5:5-4(c), she did not file any timely certification. Instead, after the filing deadline for responsive papers had passed, the wife sought an adjournment of the motion, which the court denied. Thereafter, she belatedly filed on Wednesday afternoon, June 8, 2005, a twenty-seven paragraph certification in opposition to the motion. The motion judge, over the objection of the father's counsel, agreed to consider the mother's late certification. See Tyler v. N.J. Auto. Full Ins., 228 N.J. Super. 463, 467-68 (App. Div. 1988) (recognizing a court's discretion to consider late-filed papers, given the preference for disposition of cases on their merits).

In her certification, the mother acknowledged that she was no longer having parenting time with her son. She also admitted that her relationship with her son's former coach has caused her son problems, and that she "know[s]. . . it will take time for him to adjust to the fact that [she is] no longer married to his father [and has] a relationship with another man."

However, the mother also accused her ex-husband of contributing to their son's negative feelings toward her. Among other things, she alleged that the father repeatedly referred to her as a "whore" in her son's presence, condoned the son's vulgar language denigrating the mother, influenced the son to refuse cards and gifts, and excluded her from parent-teacher conferences, medical appointments and other involvement in, or knowledge of, the son's activities. The mother also opposed the financial relief sought by the ex-husband, claiming that the father had unilaterally enrolled the son in an expensive hockey program. The mother filed no cross-motion for relief.

After hearing oral argument on the father's motion, the Family Part entered an order on June 10, 2005, which provided that primary residential custody of the son "shall be vested with [p]laintiff [the father]," and that "[p]arenting time for [d]efendant [the mother] shall be agreed upon by the parties." The order also directed the mother to pay $138.00 per week to the father in child support, pursuant to the New Jersey Child Support Guidelines, effective May 13, 2005, the filing date of the father's motion. The order further compelled the mother to pay the father $1,337.50, representing past due hockey league costs, and fixing the mother's share of the hockey costs for the 2005-06 season at $1,477.00. Lastly, the court awarded $1,300.00 in counsel fees to the father, as the prevailing party on the motion.

In his oral ruling associated with the June 10, 2005 order, the motion judge made the following pertinent observations on the custody issues:

THE COURT: I'm going to grant the application to transfer residential custody of [the son] to William Flesche, Jr. The certification filed by Mrs. Flesche confirms the fact that [the son] has been living with his father and does not wish to have any contact with his mother and has not had any contact with his mother, has not had any visitation with his mother since January of this year. There was no application on her part to change that arrangement after that became the course. It is the arrangement that both parties have allowed to remain in effect. It appears that there is a major, major problem between [the son] and his mother. Mrs. Flesche's certification reiterates that situation over and over again, although she seeks to place the blame upon Mr. Flesche. I don't think that it's necessary for me to try to determine who to blame for the problem. As with most parenting issues, normally the blame can be spread around to both parties and it doesn't help me in terms of deciding what the state of the custody situation is to try to hold a hearing on why [the son] doesn't want to visit with his mother. I certainly think that probably an application to get involved in some type of counseling, therapeutic reunification or something along that line may be very appropriate, but I don't think that changes the fact that [the son] has been with his father for some lengthy period of time now and is not having any overnight time with his mother and that that just happens to be the state of affairs right now. And on that basis I believe that Mr. Flesche should be designated as the primary residential custodian at this point.

I'm declining the request to interview [the son] again for the same reason I just said; there seems to be no dispute as to the facts of where [the son] is or what his relationship with his mother is right now. So I don't need to interview him to learn of that. If there's an application to the Court to institute a therapeutic reunification, I would be very inclined to grant some type of therapeutic reunification and I would wait until that point to determine whether there's any necessity for me to interview [the son]. Probably more likely it's important to get him to the therapist as quickly as possible and get the therapist to interview him rather than me interviewing him. But I'm denying your request to interview [the son] at this time.

This appeal ensued.

II.

On appeal, the mother principally contends that the motion judge erred in entering the June 10, 2005 custody order without conducting a plenary hearing. The mother also argues that the motion judge abused his discretion in declining to interview the son before making his ruling, noting that the father's counsel had also requested such an in-chambers interview. The mother further contends that the financial relief awarded to the husband was unjustified, and that the court offered no reasons to support the $1,300.00 counsel fee award.

Ordinarily, a plenary hearing is appropriate before the entry of an order affecting the custody of a child. See, e.g., Entress v. Entress, 376 N.J. Super. 125, 133 (App. Div. 2005); Fusco v. Fusco, 186 N.J. Super. 321, 327-29 (App. Div. 1982). However, that principle is not immutable. See R. 5:8-6 (requiring plenary hearings in custody matters only where the contested issues are "genuine and substantial"); cf. Barblock v. Barblock, 383 N.J. Super. 114, 127 (App. Div. 2006) (under the unusual facts of the case, no plenary hearing was required to authorize mother's relocation of her children out of state, over the father's objection, where no material factual disputes were demonstrated).

In this case, the custody facets of the June 10, 2005 order simply recognized the status quo of the son's ongoing sole residence with his father, and his lack of parenting time with his mother, which had existed since at least January 2005. The language used in the July 2005 order did not represent a dramatic shift from the terminology expressed in the July 2004 divorce judgment. In fact, the terms used in the two documents are nearly synonymous. The divorce judgment described the father as the "parent of primary residence," whereas the June 2005 order states that the father "shall be vested" with "[p]rimary residential custody." The June 10, 2005 order did not eliminate the mother's parenting time, but simply replaced the detailed schedule for her parenting time, as set forth in the divorce judgment, with more flexible language stating that the mother's parenting time shall be "as agreed upon by the parties." Given this modest difference in terminology, we do not regard the June 2005 order as causing a transformation in the custodial arrangements. Rather, the order merely reflected the reality that had existed since the beginning of 2005 when the son ceased to spend time with his mother.

Under R. 5:8-6, the court has discretion to interview a child who is the subject of parental disputes. We do not believe that the motion judge misapplied his discretion here in choosing not to interview this thirteen year-old boy. This adolescent obviously has considerable residual anger over his mother's relationship with his former hockey coach. Such an interview may well have only increased the son's anxiety over a disturbing topic, and could have produced more harm than good. The judge also recognized that there was no real dispute over where the son was living and his lack of a present relationship with his mother, and thus there was no need to interview him to confirm those realities. We share the motion judge's perception that "more likely it's important to get [the son] to [a] therapist as quickly as possible and get the therapist to interview him rather than [the court] interviewing him." The judge also did not foreclose a future interview with the son, specifically indicating in the June 10, 2005 order that he was denying the parties' request to interview the boy "at this time."

We recognize, however, that the court did not refer the parties to mediation under R. 5:8-1, nor did the court appoint a therapist or other expert pursuant to R. 5:3-3 to assist it and counsel in developing a future course of action. The court also did not swear in the parties as witnesses and allow them to be examined about their somewhat-conflicting accounts over which parent bore greater responsibility for the breakdown of the son's relationship with his mother. Although we appreciate the motion judge's observation that, in all likelihood, "the blame can be spread around to both parties," we discern that an evidentiary hearing on the parties' competing allegations of fault would have had some utility in fashioning a long-term remedy to this quite difficult situation. Even though the wife's extra-marital affair was clearly a major source of alienation and embarrassment for the son, the actual degree of the father's own culpability, if any, in promoting that alienation is unclear from the paper record. We therefore hesitate to affirm the June 10, 2005 order unconditionally. Having considered the record as a whole and the arguments of appellate counsel before us, we believe that it would be most appropriate to construe the July 10, 2005 order as, in effect, the equivalent of an interim custody order, pending potential further proceedings in the Family Part. More specifically, we affirm the substance of the June 10, 2005 order on the following conditions:

1. The mother has ninety (90) days from the issuance of this opinion to file a motion with the Family Part to seek prospective relief from, or the modification of, the June 10, 2005 order. Such a motion shall detail the mother's good faith efforts since June 10, 2005, if any, to pursue therapeutic counseling aimed at restoring her relationship with her son. The motion shall also detail any new relevant facts that have emerged since the June 10, 2005 order. The father may file opposing papers, which shall particularly include facts showing any efforts he has made to assist in his son's rehabilitation of his relationship with his mother.

2. If the mother files a motion consistent with the terms of paragraph 1 above, and the father files timely opposition, the Family Part shall reconsider the necessity of a plenary hearing, preceded by mediation pursuant to R. 5:8-1. In connection with any such plenary hearing, the Family Part shall retain the discretion to interview one or both children and to appoint any expert(s) that may assist the court in evaluating the current circumstances. At such a plenary hearing the mother's burden of proof shall be no different than it would have been had the June 10, 2005 order not been entered, and the original terms of the divorce judgment still been in place.

3. If the mother fails to file such a motion within ninety (90) days as prescribed above, the June 10, 2005 order shall remain fully in force, and shall remain unaltered, absent a showing of a change in circumstances under Beck v. Beck, 86 N.J. 480, 496 n.8 (1981).

4. The child support and other financial relief set forth in the June 10, 2005 order is affirmed. Those obligations shall not be retroactively changed and may only be altered prospectively at a future hearing.

We are satisfied that the Family Part had sufficient grounds to enter the June 10, 2005 order on an interim basis without a plenary hearing, as modified by the conditions which we have recited above. Accordingly, the order is affirmed subject to those conditions.

Lastly, we address the court's award of a $1,300.00 counsel fee to the ex-husband. Although the fee award reflects an approximate one-half reduction of the counsel fee demanded by the ex-husband, the motion judge failed to express any of his reasons for calibrating that particular amount, and did not track the pertinent factors set forth in Williams v. Williams, 59 N.J. 229 (1971); and R. 5:3-5(c). See also Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990) (motion judge awarding fees in matrimonial case must adequately explain his reasons for the fee award). Accordingly, the counsel fee award is vacated and remanded for reconsideration in the Family Part, with an appropriate analysis of the pertinent factors.

III.

We offer some final comments. The parties and their son have a very challenging and emotional situation. It is incumbent upon both parents to exert their best efforts cooperatively to repair their son's fractured relationship with his mother. The mother, for her part, must take the initiative in pursuing suitable counseling, and in exhibiting appropriate sensitivity, judgment and patience in order to help her son learn to accept her again as a parent with open arms. Likewise, we admonish the father, despite his understandable hard feelings about his former spouse's affair, to honor his express commitment in the PSA, as well as his inherent duties as a co-parent, to show respect for his son's mother, to refrain from disparaging her, and to support the mutual efforts of mother and son to rebuild a constructive relationship. Without such mutual parental cooperation, the son surely will be deprived of the inestimable benefits of his mother's love and support, and the mother will be deprived of the reciprocal fulfillment and respect that every parent presumptively deserves from his or her children.

Affirmed on conditions; remanded for further proceedings on counsel fees. Jurisdiction is not retained.

 

We were dismayed to learn at oral argument that the mother has not yet pursued an application for therapeutic reunification, which was expressly invited by the motion judge in his June 10, 2005 oral ruling.

(continued)

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15

A-6046-04T2

June 12, 2006