ANN MARIE LUCARELLA v. NICHOLAS LUCARELLA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1371-11T3

ANN MARIE LUCARELLA,

Plaintiff-Appellant,

v.

NICHOLAS LUCARELLA,

Defendant-Respondent.

________________________________________________________________

August 23, 2013

Submitted March 4, 2013 - Decided

Before Judges Sabatino and Maven.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-0243-00.

Law Office of Edward Fradkin, LLC, attorneys for appellant (Stephanie M. Lombardi, on the briefs).

Law Offices of Peterson and Book, attorneys for respondent (Warren L. Peterson, on the brief).

PER CURIAM

Plaintiff Ann Marie Lucarella (mother) appeals from a Family Part order issued on November 4, 2011, which granted defendant Nicholas Lucarella (father) unsupervised parenting time, denied her request for the release of certain confidential records, and ordered her attorney removed from representing her in this post-judgment proceeding. We affirm.

This is the latest appeal involving this divorced couple and their continuing parenting time issues. The following is a brief recount of the relevant facts. As noted in prior opinions, pursuant to the parties' final judgment of divorce, the parties agreed to joint custody of their three children and mother was designated as the parent of primary residence.

A June 2002 post-judgment order granted mother sole legal and physical custody, and restricted father to supervised parenting time with no overnight visits.1 During the ensuing years, 2002 through 2011, father was indicted and tried for, but not convicted of, attempted murder of his former matrimonial attorney. There were multiple motions in the Family Part by father seeking to lift the restrictions, and by mother objecting due to his allegedly continual inappropriate conduct and failure to follow the visitation rules. The trial court issued a series of orders addressing these matters. Our prior decisions have affirmed the trial court's constraints on father's parenting time with his sons.2

After three years of no contact with the children and following the dismissal of the criminal charges in 2011, father began to attend his supervised visits with his fifteen-year-old twin sons at the Healing Hearts Supervised Visitation Program3 (Healing Hearts) under the supervision of Richard F. Ponton, Ph.D., Director of Department of Human Services for the Township of Ocean. However, after six one-hour sessions, father was terminated from the program for poor and inappropriate behavior in September 2011.

Jessie Kauffmann, MSW, LSW, a Healing Hearts social worker and case supervisor, submitted the four-visit report on August 26, 2011. She first noted that the "purpose of the supervised sessions was to monitor the interaction of the parent and child[ren] for the purpose of facilitating positive communication and a nurturing relationship." She then reported that during the first visit on August 4, the boys and father were observed with tears in their eyes as they hugged, and father was appropriate in helping the boys address their concerns. During the second visit August 10, one of the sons reported that mother's paramour (who was also her attorney) called him names and touched him in a forceful manner. Dr. Ponton reported this accusation to the Department of Children and Families (DCF) and mother. There were two more visits on August 15 and 22. Kauffman reported that all of the interactions she observed between the father and the boys during these visits were appropriate and positive, and there is no negative, emotional or physical indication that visitation needed to remain therapeutic.

Thereafter, Dr. Ponton wrote a letter, dated September 30, 2011, to the judge confirming the program's observations that the interactions between the father and the twins were "warm and engaging." He expressed, among other things, that the program had no concern about the safety of the boys or about parental abduction, and he had no direct concerns with visitation and the continuity of the father-child contact. Dr. Ponton, however, was particularly concerned with father's disruptive behavior and reaction in response to learning that restrictions on the visitation would not be lifted as he had anticipated. Based on Dr. Ponton's review of the session transcripts and video showing father's disrespectful conversations with the counselor and Kauffman, as well as his expressed negative attitude about the program, Dr. Ponton determined that "continuation of the visits at this site is not in the best interest of anyone involved." Dr. Ponton ultimately stated that he "see[s] no reason to continue supervised visitation" and that he believed "it is in the best interest of the children to resolve this matter quickly so as not to disrupt the continuity of contact between the father and sons."

After the discharge, in October 2011, mother filed an application with the court seeking the release of the records and video from Healing Hearts, and copies of any DCF reports and records pertaining to the family. A week later, father filed an Order to Show Cause (OTSC) seeking unsupervised parenting time and requesting the removal of mother's attorney from the case.4 Father's motion for unsupervised parenting time cited, as changed circumstances, that the boys were much older, he had been acquitted of the criminal charges, and there was no longer a perceived risk that he would abscond with the children to avoid criminal prosecution.

In a reply certification, mother, among other things, referred to the parenting time proposal she offered in October 2011 after father was discharged from Healing Hearts. While remaining concerned that his behavior continued to negatively impact the children, she nevertheless suggested that father "undergo therapeutic visitation with [their] sons for a period of time and then commence unsupervised parenting time provided all goes well." The proposal was contingent upon her being able to review the video and transcripts from Healing Hearts.

On November 4, 2011, the trial court heard oral argument on the cross motions. First, the judge determined that the attorney's six-year relationship with mother caused him to be too personally involved in the familial circumstances to be objective in his capacity as mother's legal advisor. The judge found that his continued representation violated the Rules of Professional Conduct (RPC) 3.7(a)5 and ordered him removed as mother's attorney in this instant litigation, however, permitted the law firm to continue the representation.6

Next, the judge considered mother's request that the court review the Healing Hearts videos and session transcripts. Instead, the judge suggested that it would be more expedient if he would speak to Dr. Ponton directly. Mother's counsel did not object to the judge calling Dr. Ponton but argued that by viewing the session videos, the judge could discern father's conduct and the credibility of father's certification in support of his request for unsupervised parenting time. Mother's counsel also argued that reviewing the records would likewise give the judge a different perspective on what father claimed in his certification. Lastly, mother's counsel implored the court to follow prior recommendations for the children to go to counseling, and suggested that the therapeutic visitation could take place for six weeks then become unsupervised.

Upon consideration of the arguments of counsel, a review of the motion pleadings, and his discussion with Dr. Ponton, the judge found that the twins, who were then fifteen-and-a-half years old, had an affection and bond with their father and that there is no reason to believe that father could not enjoy an unsupervised relationship with them as he has with his nineteen- year-old son. He further noted that the two boys wanted to be with their father, and the risks associated with father being under indictment and possibly going to jail were no longer at issue. The judge rejected mother's proposed six-week supervised setting as repetitive of the prior arrangement and likely to fail. In the end, the judge granted father's request for unsupervised parenting time, reasoning that:

I don't see any risk of harm to the children. You know, yes, perhaps [father] needs to polish up on some of his parenting skills or, you know, ways he conduct[s] himself. However, what's clear to me is that the kids, the two boys[,] are not in harm's way. That there's an affection for the father and I find that the benefits far outweigh the detriments of keeping these two children away from [father] any further.

On appeal, mother challenges the order denying the release of Healing Hearts records and any DCF reports, and the grant of unsupervised parenting time absent a showing of changed circumstance, as well as the removal of mother's attorney from the case. Mother contends that in light of father's failure to establish a change in circumstances and the court's improvident reliance on Dr. Ponton's report, a reversal of the order is warranted. Alternatively, mother argues that the judge should not have modified parenting time without conducting a plenary hearing in light of the presence of a genuine issue of material fact as to whether father satisfied his burden of showing evidence of a substantial change in circumstances. We disagree with these contentions.

In general, since the Family Part has special expertise in family matters and has the opportunity to see and hear the witnesses first-hand, its fact-finding should be accorded particular deference on appeal. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). A decision concerning custody is up to the sound discretion of the judge. SeeRandazzo v. Randazzo, 184 N.J.101, 113 (2005). However, we review the Family Part's interpretation of the law de novo without any special deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.366, 378 (1995).

In any custody or visitation determination, "the primary and overarching consideration is the best interest of the child." Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). The court's focus must be "on the 'safety, happiness, physical, mental and moral welfare' of the" child. Hand v. Hand, 391 N.J. Super.102, 105 (App. Div. 2007) (quoting Fantony v. Fantony, 21 N.J.525, 536 (1956)). The terms of a custody order are subject to modification if circumstances change. Innes v. Carrascosa, 391 N.J. Super. 453, 500 (App. Div. 2007) (quoting Sheehan v. Sheehan, 51 N.J. Super.276, 287 (App. Div.), certif. denied, 28 N.J.147 (1958)); see alsoLepis v. Lepis, 83 N.J.139, 157-58 (1980).

To establish a prima facie case for modification of a custody order, the moving party must show a substantial change in circumstances affecting the welfare of the child such that his or her best interests would best be served by modifying the current arrangement. Hand, supra, 391 N.J. Super. at 105; see also Segal v. Lynch, 211 N.J. 230, 264-65 (2012).

Regarding requests for plenary hearing, the determining factor is "whether the movant has made a prima facie showing that a plenary hearing is necessary." Hand, supra, 391 N.J. Super. at 106. This rule was crafted with an eye to judicial economy, given that "practically every dispute in the matrimonial motion practice involves a factual dispute of some nature." Klipstein v. Zalewski, 230 N.J. Super. 567, 576 (Ch. Div. 1988). "An inflexible rule requiring a plenary hearing" on every matrimonial application "would impede the sound administration of justice, impose an intolerable burden upon our trial judges, and place an undue financial burden upon the litigants." Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976).

Guided by these principles, we find no support in the record that the motion judge abused his discretion in denying mother's motion and granting the father unsupervised parenting time. The record indicates that the parties provided substantial documentation to the court with their respective motions sufficient to inform the court about the nature of the parental relationship with the children. The judge's review of the record, the Healing Hearts reports, as well as his discussion with Dr. Ponton, provided sufficient basis to support the finding that unsupervised parenting time would not place the boys at risk of harm. The judge noted that the boys have grown to become fifteen-and-a-half-year-old young men, and there is no risk of harm to the boys as the concerns revolving around father's criminal proceedings have been abated. The judge deemed those findings sufficient to establish changed circumstances and support a change to unsupervised parenting time. We are satisfied that the record supports those findings, and we discern no reason to disturb that determination.

We have no quarrel with the trial judge's exercised discretion in not holding a plenary hearing. Given the judge's discrete findings of fact that established changed circumstances, we do not view plaintiff's contention that there were genuine issues of material fact, as exhibited by the parties' conflicting affidavits, as correct. "[N]ot every factual dispute that arises in the context of matrimonial proceedings triggers the need for a plenary hearing." Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.) (citing Adler v. Adler, 229 N.J. Super. 496, 500 (App. Div. 1988)), certif. denied, 142 N.J. 455 (1995). We discern no factual dispute for which a plenary hearing would be helpful in reaching resolution. Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div. 1982); Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976).

Further, the judge did not need to view the Healing Hearts visitation video to conclude that father needed to address his disruptive behavior, regardless of whether the visits were supervised or unsupervised. The numerous reports submitted during the course of this extended litigation already provided information pertaining to father's need to address those issues. With regard to the DCF records, the judge was within his discretion to decline to review the records pertaining to the referrals, which apparently were never substantiated. R. 5:12-1(e).

Lastly, the claim that the court erred by removing mother's attorney from this litigation is without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), except to indicate that we are satisfied that the record amply supports the judge's reasonable exercise of discretion given his review of this attorney's involvement throughout the parties' extensive history of litigation.

Affirmed.

1 The court appointed a guardian ad litem who submitted a report to the court in 2005 that included a strong recommendation that father's visits with the children be closely supervised, and that he receive appropriate treatment "to curb his displaying of open antipathy to their mother." Thereafter, in September 2005, the court continued the supervised parenting time and ordered father to submit to a psychiatric evaluation as a prerequisite to him filing any application to modify the supervised parenting time order.

2 Lucarella v. Lucarella, No. A-0779-05 (App. Div. June 8, 2006), and Lucarella v. Lucarella, No. A-1144-06 (App. Div. Feb. 20, 2008).

3 A July 2008 order directed supervised visitation to take place at Healing Hearts, a program operated by the Township of Ocean Human Services Department. The order directed the program to electronically record each visit, and to generate and provide to the court and attorneys for each party a report every four visits between father and the children. The program director had the discretion "to determine if it would not be appropriate to continue the supervised visitation at Healing Hearts."

4 The OTSC was converted into a cross-motion to mother's application.

5 RPC 3.7(a) provides:

A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:

 
(1) the testimony relates to an uncontested issue;
 
(2) the testimony relates to the nature and value of legal services rendered in the case; or

 
(3) disqualification of the lawyer would work substantial hardship on the client.
 

6 RPC 3.7(b) provides that "[a] lawyer may act as advocate in a trial in which another lawyer in the lawyer's law firm is likely to be called as a witness unless precluded from doing so by RPC 1.7 or RPC 1.9."