ELISA MARIA GONZALEZ v. JOHN R. SHEARING

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1476-05T11476-05T1

ELISA MARIA GONZALEZ,

Plaintiff-Respondent,

v.

JOHN R. SHEARING,

Defendant-Appellant.

 

Submitted September 24, 2007 Decided

Before Judges Graves and Alvarez

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket Nos. FM-20-01613-01 and FV-20-002134-1E.

John R. Shearing, appellant pro se.

Nemergut & Duff, attorneys for respondent (Howard Duff, on the brief).

PER CURIAM

Defendant John R. Shearing, pro se, appeals from a divorce judgment which comprehensively addressed parenting issues, equitable distribution, alimony and child support. He raises the following points:

POINT I

THE PLAINTIFF HAS UNCLEAN HANDS.

POINT II

THE PLAINTIFF'S MARRIAGE TO ME IS NULL AND VOID BECAUSE SHE WAS KNOWINGLY MARRIED TO ANOTHER MAN WHEN SHE TOOK HER VOWS WITH ME. SHE IS THEREFORE NOT ENTITLED TO THE BENEFITS OF DIVORCE.

POINT III

THE TRIAL COURT ERRED BY HINDERING EXPLORATION OF FACTS THAT WENT TO THE ESSENCE OF THE CONFLICTING CLAIMS BEFORE THE COURT.

POINT IV

THE TRIAL COURT ERRED BY ALLOWING THE PLAINTIFF TO GIVE FALSE AND EVASIVE TESTIMONY WITHOUT DRAWING A NEGATIVE INFERENCE AGAINST THE PLAINTIFF.

POINT V

MY CHILD WAS EXPLOITED DURING THE TRIAL, HIS NEEDS WERE IGNORED, AND THE JUDGE MISREPRESENTED WHAT MY CHILD SAID.

We affirm, for the reasons expressed by Judge Brock in her detailed and thorough opinion issued after thirteen days of trial. "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). In this case, the family court's findings are supported by substantial, credible evidence and the conclusions drawn therefrom are consistent with controlling legal principles.

But for the question of the validity of the marriage itself, and a brief comment as to visitation, we will not address defendant's contentions. They are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E).

The parties began to live together in September 1995 or 1996; they married January 31, 1997. Defendant was anxious to marry plaintiff, Elisa Gonzalez; he repeatedly proposed. With the assistance of an attorney, she obtained an annulment in Guatemala of her 1992 marriage to Karl Tostengard. The annulment is dated January 1, 1996, and it is undisputed that plaintiff believes in its legitimacy. It is unclear from the record when defendant learned of the prior marriage and the annulment. Plaintiff filed for divorce on April 17, 2001. While the present matter was pending, defendant charged plaintiff in municipal court with bigamy. She was acquitted. When the divorce proceedings commenced, defendant's father was appointed to act as his guardian ad litem. Defendant's initial answer, drafted by an attorney and filed on his behalf by the guardian ad litem, admits the existence of a valid marriage. Thereafter, defendant acted pro se.

Plaintiff successfully pursued a personal injury action against defendant based on domestic violence. On one occasion "defendant 'forcibly kidnapped' their son, who was four years old at the time, from plaintiff's custody." Gonzalez v. Shearing, No. A-6160-04 (App. Div. Feb. 28, 2007) (slip op. at 2). Defendant has a significant psychiatric history and, after the kidnapping attempt, was institutionalized in at least one mental hospital. Although the record is somewhat unclear, it appears defendant was committed for at least three months.

During the divorce trial, Judge Brock interviewed the parties' eight-year-old son at defendant's urging. The child said he would like to do his homework every day with his father and see him every weekend. However, defendant admitted on the record that he did not call his own expert as a witness because the expert would have recommended against unsupervised visitation. Defendant also testified he was living in his van, and the vehicle was in danger of being repossessed. The trial court awarded custody to plaintiff, and supervised visitation on alternate weekends and holidays to defendant.

Defendant believes that his son's wish to see him daily should be honored. That wish alone, however, does not warrant modification of Judge Brock's order in light of defendant's past history and current circumstances. Defendant is not currently receiving psychiatric treatment and has previously attempted to abduct his son. In addition, the wishes of a young child are not determinative of visitation. Wilke v. Culp, 196 N.J. Super. 487, 498 (App. Div. 1984) (citing Palermo v. Palermo, 164 N.J. Super. 492 (App. Div. 1978); Lavene v. Lavene, 148 N.J. Super. 267, 271 (App. Div.), certif. denied, 75 N.J. 28 (1977)), certif. denied, 99 N.J. 243 (1985). The conclusions of trial judges regarding child custody and visitation "are entitled to great weight and will not be lightly disturbed on appeal." DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976) (citing Sheehan v. Sheehan, 51 N.J. Super. 276, 295 (App. Div.), certif. denied, 28 N.J. 147 (1958)); see also Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 157 (App. Div.), certif. denied, 178 N.J. 34 (2003). Judge Brock fashioned a fair and reasonable visitation schedule which balanced defendant's difficult circumstances with the loving relationship he enjoys with his son.

Defendant also contends that his wife was still married to another when she married him, and that "she is therefore not entitled to the benefits of divorce." At trial, defendant introduced into evidence a photocopy of the annulment written in Spanish, along with an English translation. The only other evidence defendant proffered as to the merits of the decree was his own conclusion that it was merely a complaint for annulment and not an actual judgment. The plaintiff testified the document annulled her marriage to Tostengard.

The second of two marriages is presumptively valid. Newburgh v. Arrigo, 88 N.J. 529, 538 (1982). "The presumption of validity" may be overcome "by clear and convincing evidence that (1) there was a prior marriage, (2) the prior marriage was valid, and (3) the prior marriage was not terminated by death or divorce before the latest marriage." Ibid. As Judge Brock was aware, plaintiff testified during the bigamy proceeding that Tostengard had divorced her, was remarried and had children. During the divorce trial, defendant attempted to present Tostengard as a witness, but since he had not supplied the name in discovery, he was not permitted to call him at that point. The court indicated he could do so at a later time, but he did not. Plaintiff indicated she was not sure the papers defendant presented to the court were the complete set she obtained from the Guatemalan attorney. Defendant's proofs fell far short of the clear and convincing evidence needed to prove the invalidity of the annulment decree.

Even if defendant had proved that the annulment was legally insufficient, it would not shield him from his financial obligations as he is estopped from repudiating the marriage under the principle of quasi-estoppel. As set forth in Heuer v. Heuer, 152 N.J. 226, 240 (1998): "a party who did not know of a spouse's prior marriage and divorce, or one who knew about it but played no role in obtaining the prior divorce, may nonetheless be estopped from denying the validity of a current marriage." The factors to be considered are: "(1) the length of time parties were married, (2) the acts undertaken by the parties that indicate they held themselves out as husband and wife, and (3) the good faith of the party who procured the first divorce." Id. at 240-41. This marriage was brief, although the parties lived together before it took place, and may have been living together when the annulment was obtained. The parties have a child, jointly purchased a marital home, and in every respect held themselves out as husband and wife. Defendant does not dispute that plaintiff at least believed the annulment was legitimate. Defendant's current position is entirely inconsistent with his prior indifference to the merits of the annulment. He wants his marriage declared a nullity for the sole purpose of inflicting economic damage upon plaintiff. When the facts are considered in light of the Heuer analysis, it is clear he is estopped from challenging the validity of his marriage to plaintiff.

Therefore, we affirm.

Defendant's handwritten certified statement in support of motion for leave to proceed as an indigent indicates he was homeless and living "in the woods" when the appeal was filed.

(continued)

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A-1476-05T1

November 7, 2007