JUSTIN THARAUD v. DENEAN THARAUD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1205-06T31205-06T3

JUSTIN THARAUD,

Plaintiff-Appellant,

v.

DENEAN THARAUD,

Defendant-Respondent.

________________________________________________________________

 

Submitted November 13, 2007 - Decided

Before Judges S.L. Reisner, Gilroy and Baxter.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-701-02 and FV-20-637-06.

Caryl Wolfson Leightman, attorney for appellant.

Denean R. Darnstaedt, respondent pro se.

PER CURIAM

Plaintiff Justin Tharaud appeals from portions of a September 16, 2006 order entered by the Family Part that, in relevant part: 1) required his exercise of parenting time with his son to be supervised by plaintiff's mother; 2) denied his motion to require defendant to pay $26,110, representing half of the $52,220 plaintiff advanced for repairs and improvements to the former marital home; and 3) required plaintiff to submit to a breathalyzer examination at the local police station on three random occasions of defendant's choosing, with the proviso that any breathalyzer reading greater than 0.00% would result in the judge "shut[ting] down plaintiff's parenting time." We reverse and remand for further proceedings.

I.

The parties were married on February 14, 2000, and a final judgment of divorce was granted on March 4, 2003. The divorce judgment granted defendant physical custody of the parties' son subject to parenting time by plaintiff on alternate weekends. The property settlement agreement accompanying the divorce decree provided that defendant, who was to remain in the former marital home, would be responsible for all repairs to the former marital home costing less than $200. As to any repairs costing more than $200, the judgment specified that "defendant will notify plaintiff of the required repair, and plaintiff will either perform the repair himself with the parties to share the cost of materials on a 50/50 basis, or defendant will engage an outside contractor to perform the repair with the cost to be borne by the parties on a 50/50 basis."

In September 2005, defendant filed a domestic violence complaint against plaintiff pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. As a result, a final restraining order was entered on September 29, 2005, that barred plaintiff from the former marital home, granted him liberal visitation with his son, prohibited him from consuming alcohol during visitation, and prohibited any overnight visitation.

That order remained in effect until plaintiff filed a motion on July 19, 2006, seeking an order to: expand his parenting time to fifty percent; require defendant to pay him $26,110, representing one-half of the funds he had advanced to repair and improve the marital home following the divorce; and award him counsel fees and costs. In reply to that motion, defendant filed a cross-motion in which she sought to: deny plaintiff's request for an increase in his parenting time; change plaintiff's supervisor for visitation from his mother to his father; award defendant full legal custody of the parties' son; compel plaintiff to undergo alcohol evaluation; and deny plaintiff's request that she be required to pay him the sum of $26,110.

We set out the parties' contentions supporting the motion and cross-motion in some detail to demonstrate the sharp conflict between the factual assertions each side made. Plaintiff certified that the parties had agreed to list the former marital home for sale, but after nine months had passed without any reasonable offers being received, they took the home off the market. At that point, according to him, the parties entered into a verbal agreement to repair and improve the property, after which they would immediately re-list it in hopes of obtaining a more favorable sales price. According to plaintiff, he "agreed to advance the cost of all materials and labor and to be reimbursed 'off the top' from the net proceeds of sale." He also alleged that his ex-wife asked him "to move into a room at the house in order to expedite the work." Pursuant to their verbal agreement, he certified that he incurred expenses of $42,330 for materials, labor costs, supplies, refuse removal, and the cost of a new roof that was installed by a roofing contractor. Because of the interest on his credit card balance of $42,330, the total, with interest, was $52,220. He requested an order requiring defendant to pay him half of the $52,220. He attached to his motion papers more than seventy pages of canceled checks, receipts and other documents verifying the funds he expended in repairing the home.

As to visitation, he alleged in his certification in support of the motion that although his visitation had been scaled back after the entry of the domestic violence restraining order, it had gradually increased subsequently, and he sought to formalize an equal share of parenting time.

In support of her cross-motion and in opposition to plaintiff's motion, defendant certified that, with respect to the repairs on the home, if any repairs were needed, plaintiff would "either perform the repair himself with the parties to share the cost of materials on a fifty/fifty basis, or [she would] engage an outside contractor to perform the repair with the cost to be borne by the parties on a fifty/fifty basis." She contended that the work plaintiff performed "was neither required nor requested." She denied there was any verbal agreement for him to perform the repairs that he did.

She contended that he moved back into the former marital home only because he had ended a five-year relationship with Elizabeth Black that he had maintained after the marriage. Once his relationship with Black ended, "he and his mother insisted that I allow him to move back into the property and 'work on the house' to help him get over his loss of [that] relationship." She said she did not want "him to have to[o] much free time which usually leads to his excessive drinking." Defendant asserted that she "only agreed to this because until recently, I always did what the plaintiff and his mother said." Defendant also contended that according to a realtor, the improvements plaintiff made only increased the property value by a maximum of $5,000. She asked the court to deny plaintiff's request that she be ordered to pay him $26,110.

As to plaintiff's request for an increase in his parenting time, defendant urged the court to deny that request. She asserted that "over the past twelve years, the plaintiff [had] been emotionally abusive to [her] because of his constant problem with alcohol." She asked that the current parenting time schedule remain in place and that his request for an increase be denied.

Thus, defendant conceded that the divorce judgment specified that the parties would share equally any costs related to repairs to the home, but insisted that her obligation to pay for repairs would only become operative if she asked him to make a particular repair. She denied having ever asked plaintiff to make the repairs in question. He, in turn, maintained in his certification that not only had the parties agreed that the repairs would be made, but that defendant had even asked him to move into the home in order to expedite that process. Unquestionably, their claims regarding the circumstances surrounding the making of the repairs, and plaintiff having advanced the funds to do so, were diametrically opposed. Additionally, although defendant referred to plaintiff's history of alcohol abuse in her certification, and although she asked that he be required to undergo "alcohol evaluation treatment through Consortium," she never asked that plaintiff be required to submit to breathalyzer testing.

At the hearing, there was some discussion back and forth between the judge and the lawyers, during which the judge asked questions directly of the parties, not under oath. During that interchange, the judge asked defendant why she objected to plaintiff's request for weekend parenting time. We quote that colloquy verbatim in order to demonstrate the circumstances surrounding the imposition of the breathalyzer requirement:

THE COURT: But, why the objection to the weekends?

MS. THARAUD: Because, since we've--

THE COURT: It's a year now.

MS. THARAUD: --right. But, since we've been divorced, he's had a DWI and there's two--

THE COURT: He's not driving--

MS. THARAUD: --two restraining orders.

THE COURT: --the kid.

MS. THARAUD: But there's also two restraints[sic] orders.

THE COURT: Yeah. I know. But that doesn't mean he doesn't get to have his son overnight. That's not what restraining orders do.

MS. THARAUD: But he's drinking.

THE COURT: He's in his mother's house, supervised by her. He can't take the child anywhere alone without the mother.

(PAUSE)

THE COURT: This is not a control thing. Alright?

MS. THARAUD: Uh-huh.

THE COURT: Alright. Now, I'm gonna give you a tool as well. You are still seeing your son three days a week in the manner I heard, right?

MR. THARAUD: Yes, I am.

[PLAINTIFF'S ATTORNEY]: Wait. No, no. Your Honor, last night he got a call from me--

THE COURT: Alright. Forget about last night.

[PLAINTIFF'S ATTORNEY]: --and he was withheld today.

THE COURT: Just everybody sit down.

[PLAINTIFF'S ATTORNEY]: Okay.

THE COURT: This is what I want to do. I want you to listen.

(PAUSE)

THE COURT: This is transitional. So, he hasn't spent an overnight in a year. I want to--in two weeks.

MR. THARAUD: Yes, sir.

THE COURT: Okay.

(PAUSE)

THE COURT: For the balance of September, the month of October, he'll have every other weekend, Saturday at 9:00 in the morning til Sunday at 5:00, which is one overnight. Have you understood what I've said?

(NO VERBAL RESPONSE FROM COUNSEL OR PARTIES)

THE COURT: Commencing November 1, we are gonna go from Friday at 3:00 til Sunday at 5:00, two overnights. There will not be a Monday morning overnight. We're staying with the two at this stage. There will be no mid-

week overnights. Those days, we are going

to eliminate the Monday that's been in existence and we're just gonna do the Wednesday and the Friday, except for the week. Now, this is how I want it done, so there's policy in writing. When it's his weekend, there's no Friday or no Monday. Do we understand that? The Wednesday's gonna stay constant every week. When it's her weekend, the child comes on the Friday and the Monday. Have you understood what I've said?

(NO VERBAL RESPONSE FROM COUNSEL OR PARTIES)

THE COURT: On the wrap around on the non-weekend. You follow me?

MS. THARAUD: Uh-huh.

THE COURT: Okay. The only overnights are on the weekends, not the midweek. We're stretching into this because there's got to be some growth.

You will be permitted to request on three random occasions, okay, at the commencement or the end of either weekend, to have him go to the police station and blow into a breathalyzer. If you blow--

MR. THARAUD: I'm sorry. I'm just excited.

THE COURT: --I don't care if you want to be a rocket ship, you're just gonna do what I tell you at this point.

MR. THARAUD: Absolutely.

THE COURT: If you blow anything, other than a double zero, which means you didn't have a drink, I'm shutting you down completely.

. . . .

THE COURT: We're giving you a heads up. . . . But, if you blow anything, you're done. Because-- now, I'm not trying to catch you. I'm taking--you may have heard me early say,

what better way to show her. Do you understand me?

MR. THARAUD: (NO VERBAL RESPONSE.)

THE COURT: And, at some point, then the supervision is gonna get lifted. Alright. This is not a life time supervision for this guy. And he's gonna have some more overnights. But we're gonna do this gradually, because she's

got some--some concerns that we want to find out if they still exist. Does everybody understand my intent here?

(NO VERBAL RESPONSE FROM COUNSEL OR PARTIES)

After some ensuing discussion concerning the time that plaintiff would return his son to defendant on weekdays, and as the motion hearing seemed to be approaching a close, plaintiff's attorney reminded the court that visitation was "only half our motion. The other half of our motion concerns the repairs to the marital home." Without hearing any argument or any other discussions, the court summarily stated, "denied. Okay. That's it. We're done. Alright. You can take that." Plaintiff's attorney protested, asking the court "so, he doesn't ever get to be repaid?" The judge commented that because three years had elapsed after the divorce, he didn't understand how that could be "an issue today." Plaintiff's attorney attempted to explain that after the parties were divorced, they listed the house twice. The judge interrupted her asking whether there was anything in writing in which defendant agreed to reimburse plaintiff for the repair costs. When defendant's attorney interjected and answered no, plaintiff's attorney explained that there was an oral agreement. At that point the following discussion took place:

THE COURT: We can't do that. And, in fact, I'm gonna-- it's not part of any [property settlement agreement], it's not part of anything, that I would--and ordinarily, if someone were gonna lend me $50,000, I'd be doing it in a writing. Okay.

[PLAINTIFF'S ATTORNEY]: Your Honor, he made a mistake not to do a writing.

. . . .

THE COURT: --then that's a mistake he pays for.

[PLAINTIFF'S ATTORNEY]: Okay.

THE COURT: Is this a loan or a gift? Did he ever tell you he wanted it back?

MS. THARAUD: No.

THE COURT: Did you agree to pay him back?

MS. THARAUD: No.

THE COURT: See, I'm not playing he said, she said with these people.

[PLAINTIFF'S ATTORNEY]: Your Honor--

THE COURT: It's unenforceable.

[PLAINTIFF'S ATTORNEY]: Okay.

THE COURT: The answer is no. Your motion is denied. That's it. Okay. Now you can go file a civil suit against her, but I'm not doing it.

After the hearing ended, the court entered the order that we have already described. Shortly after the entry of the order, the Mountainside Police Department notified the court and parties they would not cooperate with providing a breathalyzer exam to plaintiff in what was a civil matter. At that point, the judge wrote to the parties and directed that instead of a breathalyzer, plaintiff would be required to submit to blood testing. By letter dated November 2, 2006, the judge stated that according to a procedures manual adopted by the Administrative Office of the Courts, "whenever there is a question of the safety and well-being of a child during a custody/visitation proceeding," the court is permitted to order drug or alcohol screening or testing.

On appeal, plaintiff argues that the court erred in: refusing to require defendant to share the repair costs equally; failing to make any and/or adequate findings of fact regarding those expenses; and requiring him to submit to breathalyzer testing when nothing in the record supported that result. He further argued that he was given no opportunity to challenge defendant's contention that such testing was required. He urges us to exercise our original jurisdiction and vacate the order requiring blood alcohol testing, or, if we are unwilling to exercise original jurisdiction, remand the matter to a different judge on remand.

II.

The scope of appellate review of a trial court's fact-finding function is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12. "Furthermore, matrimonial courts possess special expertise in the field of domestic relations." Id. at 412. It stands to reason, however, that when a determination made by a Family Part judge is not based upon "adequate, substantial, credible evidence," ibid., no deference is owed.

Our careful review of the record and of the parties' contentions on appeal leads us to conclude that the trial judge's decision here is not entitled to our deference. This is so for several reasons. First, when material facts are in dispute, fact-finding presumes that the parties have had the opportunity to testify and cross-examine. The portions of the record that we quoted above demonstrate that the judge engaged in a cursory question-and-answer colloquy with the parties and their attorneys. The judge did not afford the parties the opportunity to testify. Instead, he fired questions at them. Additionally, the judge did not give plaintiff's attorney the opportunity to even finish a sentence before the judge reached a conclusion from her partial answers. On the question of whether plaintiff was entitled to be reimbursed for the cost of repairs, the judge never gave plaintiff the opportunity to make a statement, yet the judge accepted at face value defendant's statement that she had never agreed to split the expenses with plaintiff. Rather than afford plaintiff the opportunity to cross-examine defendant about her statement, the judge summarily ended the hearing with the comment, "it's unenforceable. The answer is no. . . . Now you can go file a civil suit against her, but I'm not doing it." The parties' submissions created material factual disputes warranting a testimonial hearing on this issue. Tancredi v. Tancredi, 101 N.J. Super. 259, 262 (App. Div. 1968). For the judge to have made a determination that no promise was made, without affording plaintiff the opportunity to testify or cross-examine defendant, was improper.

We also perceive procedural unfairness during the portion of the hearing concerning visitation. At no time did the judge even ask plaintiff whether he agreed he had a drinking problem. Instead, without affording any opportunity for cross-examination of defendant and without giving plaintiff the opportunity to testify, the judge made a hasty determination that plaintiff did have a drinking problem. It is significant that even defendant had not asked for the relief the judge ultimately imposed. She had simply asked for "defendant to be required to undergo alcohol evaluation." Under all of those circumstances, for the court to have ordered defendant to submit to breathalyzer testing, was improper.

We are mindful of existing administrative directives that authorize the Family Part to require parties to submit to testing whenever a substantial question is raised about a parent's possible substance abuse when parenting time is being exercised. We are not suggesting that the judge here was prohibited from ordering testing. Instead, we conclude that under the circumstances presented, where the hearing was both cursory and one-sided, there was an insufficient evidentiary basis for the court to have ordered breathalyzer, or any other form of, alcohol testing. We therefore conclude that the record is insufficient to justify the order the judge entered.

Second, the judge made no findings of fact. Instead, the judge entered the order without ever making the findings of fact that are required by Rule 1:7-4(a). It is not sufficient to simply decide a motion; the judge must explain the reasons for doing so and make findings of fact. "Naked conclusions do not satisfy the purpose of Rule 1:7-4". Curtis v. Finneran, 83 N.J. 563, 570 (1980).

Accordingly, we conclude that the proceedings here were unfair. Plaintiff was given no meaningful opportunity to present his claims or defend against those of defendant. We have no confidence in the result that was reached. Accordingly, the deference that would ordinarily extend to a trial judge's findings under Cesare is not warranted here, and we reverse the order of September 16, 2006 from which plaintiff appeals.

We decline plaintiff's invitation to exercise our original jurisdiction, because the facts are not sufficiently-developed to enable us to make any meaningful determination. Instead, we believe the more prudent course is to remand this matter for a factual hearing at which each side will be permitted to fully and fairly present evidence and cross-examine opposing witnesses on the issue of home repairs. We also remand for reconsideration of the order requiring blood testing for alcohol. A testimonial hearing will also be required on this issue if there are material facts in dispute. In light of our conclusions about the manner in which this particular judge conducted the proceedings, we direct that on remand the matter be assigned to a different judge. Reversed and remanded. We do
not retain jurisdiction.

Defendant's brief lists her surname differently from the Notice of Appeal. We have used the surname of Tharaud that is specified in the Notice of Appeal.

(continued)

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A-1205-06T3

RECORD IMPOUNDED

December 5, 2007