KATHLEEN LANE v. ANDREW LANE, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5645-09T3

A-3401-10T3

KATHLEEN LANE,

Plaintiff-Respondent,

v.

ANDREW LANE, JR.,

Defendant-Appellant.

______________________________

April 16, 2012

Argued February 16, 2012 - Decided

Before Judges Fuentes, Graves and Koblitz.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2135-04.

Francis W. Donahue argued the cause for appellant (Donahue, Hagan, Klein, Newsome & O'Donnell, P.C., attorneys; Mr. Donahue, of counsel and on the briefs; Melissa M. Ruvolo and Rebecca K. Li, on the briefs).

Brian P. McCann argued the cause for respondent (Cavalli & McCann, L.L.C., attorneys; Mr. McCann, on the briefs).

PER CURIAM

These back-to-back appeals, which we consolidate for purposes of this opinion, arise from post-divorce litigation involving the time-sharing and custody arrangement for the parties' three children. The father, Andrew Lane, Jr., appeals from a June 14, 2010 order denying his request for six months of sole custody while the children are enrolled in the Family Bridges Program for alienated children. Instead, the motion judge ordered the children to engage in therapy with a psychiatrist selected by the judge. The father also appeals a February 1, 2011 order, which enforced the June order by requiring the father to participate in family therapy with the designated psychiatrist and enforced the parties' agreement of the right of first refusal regarding parenting time in the parties' divorce agreement. The father further argues that any remand should be sent to a different judge.

At oral argument we were informed for the first time that the court-appointed psychiatrist was no longer involved with the family. We also learned that the case was now assigned to a different judge1 who signed an order on October 18, 2011, directing the family's prior evaluator, Dr. Sharon Ryan Montgomery, to investigate the father's allegations of parental alienation and "make any further recommendations she deems appropriate."2 At oral argument we were told that Dr. Montgomery plans to interview the parties and other collateral sources. In light of the new developments since the time of the orders now before us on appeal, we dismiss this appeal to allow the trial court to review Dr. Montgomery's report and hold a plenary hearing should the need for one arise.

The parties married on June 26, 1993. They divorced eleven years later on October 28, 2004. Three children were born of the marriage in 1995, 1997 and 2000. The Property Settlement Agreement (PSA) required the father to pay at least $110,000 to the mother annually, of which $80,000 was designated as alimony to continue for ten years, and the remainder as child support. Depending on his bonus payments, this support could increase up to a total of $150,000 per year, with $109,300 allocated as alimony and $40,700 as child support. At the time of the agreement, the father worked as a bond trader with an average annual income of $270,000. The parents agreed to share joint legal and residential custody of the children, spending equal time with the children. They also agreed to "the right of first refusal to care for the children should either party need childcare during his or her parenting time for [four] hours or more."

The parties and children initially appeared to adapt well to this shared custody arrangement. In 2006 the mother, Kathleen Lane, began cohabitating with Allen Cohen. Pursuant to the PSA, the mother's cohabitation "automatically trigger[ed]" the father's right to seek a decrease in alimony, which he did in March 2007. The mother cross-moved for an increase in child support. On May 16, 2007, the court granted the father's application to terminate alimony retroactively to March 1, 2007, and required the mother to reimburse him $9108.33. The court also denied the mother's application to increase child support. She then married Cohen in July 2007.

With the mother's remarriage and the dramatic reduction in financial support from the father, the shared custody situation deteriorated. The father alleges that the mother and her new husband, upset about the reduced financial support, engaged in a campaign to alienate the children from their father. The mother alleges that after the father lost his job in late 2007, and the mother remarried, he focused his frustration on the children and "instituted an overly harsh, disciplinarian parenting style that the children were unfamiliar with."

By consent of the parties, Dr. Sharon Ryan Montgomery was appointed on June 4, 2008, to conduct a "best interest evaluation regarding parenting time and custody." Also by consent, the father's overnight parenting time was suspended in the same order. Both parties were also directed to "refrain from making disparaging remarks about the other party in the presence of the children or discussing any litigation matters with the children."

A family therapist and a parenting coordinator were appointed on August 25, 2008. See Segal v. Lynch, 417 N.J. Super. 627, 631 (App. Div. 2011), certif. granted, 207 N.J. 190. By consent, on September 26, 2008, a different therapist was appointed. A December 15, 2008, consent order directed the parties to work with this therapist and the parenting coordinator to facilitate a reasonable overnight parenting time schedule for the children with their father pending Dr. Montgomery's report. After the father's aborted trip to Boston with the children, the details of which are in dispute, the motion judge, in a February 6, 2009 order, denied both the father's application to sanction the mother and the mother's application to replace the parenting coordinator and require the father to engage in weekly psychotherapy and report his attendance at the sessions.

Dr. Montgomery submitted her ninety-eight page report on June 20, 2009. She interviewed the family members, alone and together, interviewed others with knowledge of the family, conducted home visits, administered psychological tests and reviewed court documents and correspondence between the family members. Dr. Montgomery opined that "[t]he reduction of either parent's time with the children would have a negative impact." She also made the following recommendations: (1) the parents continue to share joint legal and residential custody of the children; (2) the parents be ordered not "to discuss the other parent or the litigation with the children;" (3) the entire family continue psychotherapy; (4) the parents continue with their individual therapists; (5) a parenting coordinator remain in the case; and (6) the entire family, including Mr. Cohen and his children and the father's fiancée, participate in "the Overcoming Barriers program for estranged/alienated children[.]"

The parties attended a customized Overcoming Barriers program at the court's direction. On January 5, 2010, the parenting coordinator was relieved at her request and another was appointed. The children did not cooperate with their father's parenting time, and at times engaged in dangerous behavior.

The father retained a New York research psychologist, Dr. Amy Baker, who reviewed the documents he provided. She submitted a report, in which she opined that the mother and Mr. Cohen had alienated the children from their father. Dr. Baker recommended that the children be court-ordered to attend the Family Bridges program, which entails a six-month transfer in custody to the father and no contact with the mother for the first three months. The father moved for such an order and the mother cross-moved to remove the new parenting coordinator, to strike Dr. Baker's report from the court file, to direct the children to participate in the local Children of Divorce Program and for other relief. In his reply certification, the father requested a plenary hearing so the court could determine which program was better suited for the children's needs.

After oral argument, in the June 14, 2010 order, the motion judge directed the parties to engage in therapy with a new doctor chosen by the judge. The father refused to cooperate because the psychiatrist did not intend to keep the children's statements confidential from the parenting coordinator and the judge. The judge then entered the February 1, 2011 enforcement order.

When seeking to modify custody, as the father did here by requesting sole custody for six months, the party "must demonstrate changed circumstances that affect the welfare of the children." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). This derives from the court's "parens patriae responsibility, which authorizes the court to intervene where it is necessary to prevent harm to a child." Segal v. Lynch, 413 N.J. Super. 171, 181 (App. Div.), certif. denied, 203 N.J. 96 (2010).

A plenary hearing is required when the submissions show there is a genuine and substantial factual dispute regarding the welfare of the children, and the trial judge determines that a plenary hearing is necessary to resolve the factual dispute. Hand, supra, 391 N.J. Super. at 105. In determining whether a material fact is in dispute, a court should rely on the supporting documents and affidavits of the parties, disregarding conclusory allegations, and considering only statements to which a party could testify. See Pfeiffer v. Ilson, 318 N.J. Super. 13, 14 (App. Div. 1999). Normally, "the factual disputes are evident based upon the conflicting certification of the parties, or based upon evaluative reports regarding the child's condition." Faucett v. Vasquez, 411 N.J. Super. 108, 128 (App. Div. 2009), certif. denied, 203 N.J. 435 (2010).

Any remand to the court for a plenary hearing regarding these decisions from more than a year ago would be counter-productive, given the parties' consent to have Dr. Montgomery evaluate and make recommendations regarding the father's recent allegations of parental alienation, as well as the parties' acknowledgement that the psychiatrist appointed in the judge's June 14, 2010 order is no longer involved with this family. See Morgan v. Morgan, 205 N.J. 50, 68-69 (2011) (indicating that changes to a family's circumstances may require new evidence to be presented on remand).

The enforceability of the parents' agreement concerning the right of first refusal is not ripe in an environment where the children are not spending long periods of time with their father. If, after the parties examine Dr. Montgomery's report, they bring before the judge a material factual dispute affecting the custodial situation of their children, the current judge presiding over this case may choose to conduct a plenary hearing.

1 The prior judge has been transferred to the Law Division.

2 It would have been preferable had the parties sought remand to the trial court to take further action. R. 2:9-1(a).