KIMBERLY ANNE JENNINGS v. STEVEN M. LATHROP

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0795-07T30795-07T3

KIMBERLY ANNE JENNINGS,

Plaintiff-Appellant,

v.

STEVEN M. LATHROP,

Defendant-Respondent.

_____________________________________________________________

 

Argued September 23, 2008 - Decided

Before Judges Graves and Grall.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Camden County,

Docket No. FM-04-1450-02.

Gary L. Borger argued the cause for appellant

(Borger, Jones & Keeley-Cain, P.A., attorneys;

Mr. Borger, on the brief).

Jason S. Lomax argued the cause for respondent

(Lomax Law Firm, LLC, attorneys; Mr. Lomax, on

the brief).

PER CURIAM

In this post-judgment matrimonial matter, plaintiff, Kimberly Jennings, appeals from an order entered on August 30, 2007, which allows her former husband, defendant, Steven Lathrop, to have unmonitored parenting time with their son, who was born in May 2001. On appeal, plaintiff presents the following arguments:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION IN ELIMINATING MONITORED PARENTING TIME BETWEEN MR. LATHROP AND HIS SIX-YEAR-OLD SON, IN PART, BECAUSE THERE WAS NO EXPERT TESTIMONY THAT THE CHILD WOULD NOT BE PLACED AT RISK BY SPENDING TIME ALONE WITH HIS FATHER, WHO HAS BEEN TREATED FOR MENTAL HEALTH ISSUES.

POINT II

THE TRIAL COURT COMMITTED NUMEROUS FACT-FINDING ERRORS IN DECIDING TO ELIMINATE MONITORED PARENTING TIME, WHICH LED TO AN UNJUST RESULT.

After considering these contentions in light of the record and the applicable law, we are satisfied the evidence fully supports the trial court's findings and conclusions and plaintiff's arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(A) and (E). We affirm substantially for the reasons stated by Judge Solomon in his oral decision on August 30, 2007, with only the following comments.

When the parties married on June 9, 2000, plaintiff had one child, a son, who was born in May 1997, to the last of three husbands who preceded defendant. The parties separated in February 2001, and were divorced on January 8, 2003. The judgment of divorce (JOD) incorporated a stipulation of settlement. Paragraph two of the stipulation of settlement, entitled "Parenting Issues," reads as follows:

Attached hereto and incorporated by reference is a consent order dated December 23, 2002, addressing the present status of parenting issues, which order is incorporated into this Final Judgment of Divorce. In the event that as a result of Dr. Musetto's report the parties are still unable to agree to a resolution of parenting issues, either party may make application to the [c]ourt, post-judgment, for a resolution of these issues.

Pursuant to the consent order dated December 23, 2002, the parties agreed to equally share in the cost of a risk assessment by Dr. Andrew Musetto, a psychologist, to determine defendant's "fitness to have unsupervised parenting time with the minor child." Pending completion of the risk assessment, the parties agreed defendant would have one supervised parenting session per week.

Dr. Musetto's ten-page risk assessment dated May 3, 2003, contained the following conclusions and recommendations:

Mr. Lathrop shows at least a moderate degree of attention deficits, as indicated in his presentation, in his previous and current diagnoses, by his own acknowledgment, and in the observations of Ms. Jennings. Inattentiveness, impulsivity, and distractibility can be a significant risk factor for parenting. To remedy this, Mr. Lathrop should take a parenting class, establish a relationship with a counselor to help him work through the challenges of parenting, and commence his parenting time gradually. For Mr. Lathrop, the challenges and risks to parenting lie not only with his attention deficits but also with his general unfamiliarity with parenting and, more importantly, his and [his son's] unfamiliarity with each other. Gradual but steady contact will, however, reduce and eventually eliminate the latter risk, and education, the former. With the above reservations in mind, and with remedies in place, Mr. Lathrop should eventually be able to have unsupervised parenting time, time which can increase gradually and later become overnight parenting time.

Although the parties disagree on the factual history, the undersigned, in conclusion, finds no risk that needs to be considered in a parenting plan regarding antisocial trends or violence. Specifically, the overall assessment does not suggest a problem in the latter area and my assessment disconfirms the diagnosis of antisocial personality disorder.

Specifically, Mr. Lathrop should have approximately six to eight visits of one to two hours of supervised parenting time (under the aegis of a court-appointed counselor), then approximately six weekly two-hour unsupervised visits, then approximately six weekly four-hour visits, and so on until he has . . . eight-hour periods. After that, he should begin overnight parenting. All this presupposes that Mr. Lathrop takes a parenting class, engages in periodic (not necessarily weekly) parenting counseling, and continues his medication regime.

Based on Dr. Musetto's recommendations, defendant filed a motion to increase his parenting time, which plaintiff opposed. On June 4, 2004, the court entered an order scheduling a plenary hearing to determine whether defendant should have unsupervised visitation. The order also provided that unsupervised visitation was to start on August 7, 2004, "for two hours [and] each week thereafter." The plenary hearing did not take place, however, because the parties entered into a consent order dated November 5, 2004. The consent order contained the following provisions:

1. The October 13, 2004 report of Elliott Atkins, Ed.D. and Gregory Joseph, Psy.D. (hereinafter "the Atkins/Joseph report") shall be provided forthwith to defendant's treating therapist, Alan Kagel, Ed.D., by defendant's counsel for use in defendant's course of psychotherapy and parenting education with Dr. Kagel and to assist the said therapist in conferring with Dr. Joseph as more particularly set forth hereinbelow;

2. Drs. Kagel and Joseph shall confer after Dr. Kagel has reviewed the Atkins/Joseph report. Dr. Kagel then shall confer with defendant's attorney and Dr. Joseph shall confer with plaintiff's attorney. This order shall serve as an authorization by the defendant for Dr. Kagel as his treating therapist to confer with Dr. Joseph and with defendant's attorney.

3. Defendant shall determine from his employer's current plan of health insurance the names of local participating psychiatrists as well as the participating psychiatrists on the health insurance that his employer will be providing effective January 1, 2005, and shall provide a list thereof to defendant's attorney who shall share it with plaintiff's attorney so that the attorneys might agree on the psychiatrist by whom defendant shall be seen for prescription monitoring purposes;

4. The chosen psychiatrist will determine and monitor appropriate prescription medication(s) and dosage(s) for defendant, with periodic monitoring and recommendations as medically appropriate, and defendant shall cooperate and comply with all reasonable requests of the chosen psychiatrist who shall be given a copy of the October 13, 2004 Atkins/Joseph report;

5. Defendant forthwith shall increase his therapy sessions with Dr. Kagel from bi-weekly to weekly;

6. Defendant's parenting time . . . shall be modified as follows:

a. Plaintiff's presence shall no longer be required when defendant exercises parenting time . . . rather, in her place, mutually agreeable monitors shall be present and shall be in view and hearing of [the child] at all times to intercede in the child's best interest should there be a need to protect [him] from being at risk medically, physically or emotionally, and who thereby shall act on behalf of the court under its parens patriae jurisdiction, with the court to schedule a date and time for the court to address the monitors whose role will commence with the said monitored parenting time of November 24, 2004 . . . .

b. Effective October 23, 2004, defendant's Saturday parenting time . . . shall alternate from two hours on [] October 23rd with three hours the following week (October 30th) and with this pattern repeating until Wednesday, November 24, 2004, when [the child] will be with his father (the defendant) from 6:00 p.m. to 8:00 p.m., and on every other Wednesday thereafter, with three hours of parenting time on alternate Saturdays, starting December 4, 2004, continuing on December 18th, and every other Saturday thereafter until the parties agree to a modification thereof; and

c. The parties and counsel will meet again on November ___, 2004 after defendant's counsel has conferred with Dr. Kagel and plaintiff's counsel has conferred with Dr. Joseph to discuss further expansion of defendant's parenting time . . . ;

. . . .

9. Defendant shall continue with his parenting and individual counseling with Alan Kagel, Ed.D. who shall confer with Gregory Joseph, Psy.D. periodically with such frequency as the psychologists deem appropriate so that Dr. Joseph is aware of the progress that the defendant is making in parenting awareness and individual psychological growth and insight into the functioning of a young child;

. . . .

12. Defendant shall engage in counseling in appropriate and inappropriate touching of a child of [his son's] age.

In July 2005, defendant filed a motion seeking increased visitation and unmonitored parenting time. Plaintiff opposed the motion, and she cross-moved for a period of discovery and a plenary hearing. Following oral argument on September 23, 2005, the court entered an order (1) denying plaintiff's request for a plenary hearing; (2) declaring "[p]arenting time shall no longer be monitored"; (3) increasing defendant's parenting time; (4) ordering plaintiff to "keep defendant apprised in a timely fashion on matters concerning the child's health status"; and (5) denying plaintiff's request "for copies of the notes of Dr. Kagel and Dr. Samaroo."

Plaintiff appealed from this order and, in an unpublished decision, we reversed and remanded. Jennings v. Lathrop, No. A-0987-05 (App. Div. June 30, 2006). We concluded a plenary hearing was necessary to resolve disputed issues regarding defendant's compliance with the consent order dated November 5, 2004:

The [trial] judge was apparently persuaded by his finding that modification was warranted because defendant was "in substantial compliance with the requirements" of the parties' earlier consent order. The record indicates, however, that questions of fact exist as to defendant's compliance with the consent order. In Dr. Joseph's certification, which plaintiff submitted in opposition to defendant's motion, he indicated his concern that defendant was not attending therapy on a weekly basis. In addition, although disputed by Dr. Kagel, Dr. Joseph claimed that Dr. Kagel had not conferred with him in accordance with the consent order. Therefore, the absence of any recommendation for unmonitored parenting time, plus disputed issues of fact related to defendant's compliance with the consent order, warranted a plenary hearing to resolve the parenting time issues.

We also determined the trial court erred in denying plaintiff's request for discovery regarding defendant's psychological records:

Whether defendant is entitled to unsupervised and unmonitored visitation with his son is at the core of the dispute between the parties. As per prior orders of the court and agreements between the parties themselves, defendant was required to undergo parenting classes. Accordingly, on the issue of unsupervised visitation, the substance of those sessions is highly relevant to an expert's determination as to the best interest of the child. . . . Likewise, the parties also previously agreed that all of Dr. Musetto's notes and any other documents the doctor relied upon to reach his conclusions would be turned over to plaintiff's expert.

. . . .

In summary, the matter is reversed and remanded, consistent with our opinion, for a plenary hearing to determine whether defendant is entitled to unsupervised and unmonitored visitation considering the best interests of the child, and if so, what conditions, if any, should be imposed by the court for such visitation. . . . Prior to that hearing, the court will conduct an in-camera review of the psychological records of defendant's treating therapist to determine what records should be turned over to plaintiff's experts.

During the remand hearing, which took place on fourteen separate days between December 2006 and August 2007, both of the parties testified. In addition, defendant presented the testimony of (1) William Jennings, plaintiff's uncle; (2) Cheryl Sterling, defendant's girlfriend; (3) Dr. Andrew Musetto; (4) Howard Lathrop, defendant's father; and (5) Dr. Alan Kagel, a clinical and sports psychologist. Plaintiff presented the testimony of: (1) Georgeine Rambo, a parent of her son's classmate; (2) Detective Stephen Falcone; (3) Marie Jennings, plaintiff's mother; (4) John Stenton, a private investigator; (5) Dr. Gregory W. Joseph, a psychologist; and (6) Dr. Elliot L. Atkins, a psychologist. Plaintiff also presented a videotaped deposition of Dr. Josephine Villanueva, a board certified psychiatrist, who treated defendant from April 18, 2001 to April 25, 2002, and defendant presented a videotaped deposition of Dr. Amber T. Samaroo, a licensed clinical social worker.

On August 30, 2007, the trial court rendered a comprehensive seventy-six page oral decision, which included the following findings and conclusions:

Dr. Samaroo's conclusions, considered in conjunction with the opinions of Doctors Atkins, Musetto and Joseph, which will be discussed later, cause me to conclude not only that the defendant did comply with paragraph 12 of the consent order, but defendant is not a sexual risk to [his child].

Dr. Villanueva testified as a board certified psychiatrist that she treated defendant from April 18, 2001 until April 25, 2002, nearly a year. More than a year. Dr. Villanueva testified by videotape and was both competent and credible. Dr. Villanueva treated Mr. Lathrop for aggression, impulsivity and ADHD. Dr. Villanueva found the defendant wanted to improve and was cooperative, she did not find him to be hedonistic or suffering from antisocial personality traits, although Mr. Lathrop was ambivalent about himself and insecure. Dr. Villanueva diagnosed Mr. Lathrop as suffering from moderate ADHD, prescribed Ritalin and later Concereta to treat the condition.

I did not conclude from Dr. Villanueva's testimony that Mr. Lathrop represented a risk to [his son or step-son], for that matter, and Dr. Villanueva specifically undercut the assertions by plaintiff that defendant is sociopathic in some way or sexually deviant. Frankly, I found Dr. Villanueva to be completely consistent with Dr. Musetto.

Dr. Kagel has been Mr. Lathrop's treating psychologist. Dr. Kagel has seen Mr. Lathrop more than 50 times, beginning in August of 2004 and continuing to the present. For a brief period of time, Dr. Kagel treated Mr. Lathrop one time per week, but has, for the most part, seen Mr. Lathrop every other week. This is not in strict accordance with the specific requirements of paragraph 9 of the consent order marked as Defendant's Exhibit 8. Dr. Kagel testified that he treats and educates the defendant about parenting, developing more emotional awareness and understanding of the developmental needs of a child. This testimony regarding his treatment, I conclude, is consistent with the requirements of paragraph 9 of the consent order.

Dr. Kagel believed and believes the [plaintiff] is consciously or unconsciously alienating [the child] from his father or coaching [the child]. . . . Dr. Kagel testified that, unsolicited, [the child] stated he wanted to stop his visits with his father, evidencing perhaps parental alienation or coaching. In addition, Dr. Kagel found it significant that, when asked, plaintiff could not say anything positive about the defendant. This is completely consistent with what I observed of the plaintiff during her testimony and what I infer from the evidence presented in this case.

Dr. Kagel believed the defendant minimizes and plaintiff maximizes the issues regarding defendant's parenting of [his son and step-son]. And that's important, because Dr. Kagel, in this way, was not necessarily complimentary to the defendant, he was willing to express an opinion that was not necessarily in the defendant's interest, something that I found to be consistent, completely consistent with my observations of defendant's testimony. He tends to, yes, intellectualize and overestimate his ability and minimize his negative encounters with the children. On the other hand, as I will discuss later, plaintiff clearly maximizes these issues. Dr. Kagel believes that Mr. Lathrop is better able to express his feelings and emotions and is better at parenting as a result of his treatment.

I accepted those opinions. . . .

. . . .

In sum, I am left with the following. There is no evidence establishing defendant is a sexual threat to [his son], in fact, the evidence is to the contrary. There is evidence . . . that establishes defendant's parenting issues. Mr. Lathrop suffers from ADHD, inattentive type, which is treated with medication. Mr. Lathrop is not antisocial, he is impulsive, easily frustrated and may react spontaneously and without sufficient insight or empathy. He can be narcissistic, childlike and egocentric, but is not malevolent, cunning and calculating. In short, the most significant risk to [the child] . . . based upon the totality of the credible evidence, is that, as Dr. Musetto said, he may be impulsive, easily frustrated and react angrily.

In addition, it is clear that the defendant desires to have a relationship with his son and plaintiff seeks to prevent, as much [as] possible, a [father-son] relationship . . . . The refusal of plaintiff to communicate . . . with defendant will inhibit any future progress. The record causes me to conclude that there should be unsupervised parenting visits . . . in accordance with Judge Schuck's September 23, 2005 order, the structure of which I will adopt, because we are starting all over. We're gonna begin slow and we're gonna progress.

It is true that defendant is not currently under the care of a psychiatrist and that he is attending counseling sessions on a biweekly basis, rather than weekly. It's also true that there has been little, if any, communication between Dr. Kagel, Joseph and Atkins. And Dr. Kagel does not suggest that he is providing psychological counseling to deal with the issues raised by Drs. Atkins and Joseph; but I do not conclude that the terms in the consent order prohibit unsupervised parenting time in the absence of individual psychotherapy . . . exactly like that described by Drs. Atkins and Joseph, rather, it is clear that Dr. Kagel has been delving into parenting issues and learning defendant's individual psychological growth and insight into the functioning of a young child.

I read this and interpret it based upon the testimony, both expert and factual, to be precisely the kind of . . . counseling contemplated by the consent order. In this respect, I find there has been substantial compliance with the consent order, as per Judge Schuck. The lack of communication and cooperation by Dr. Kagel has been largely due to the conduct of the plaintiff.

And because I do not conclude that [the child] is at risk in defendant's care, I believe that unsupervised parenting time is appropriate, however, there should be the following conditions, consistent with my prior findings:

Mr. Lathrop should commence treatment with a psychologist, other than Dr. Kagel, who will provide parenting and individual counseling to the defendant.

Defendant shall consult with a psychiatrist for reevaluation and follow-up and the prescription of additional medication or treatment that's appropriate.

The parties shall engage in family counseling by a psychologist selected by agreement of the parties from the list provided by the [c]ourt and the parties shall cooperate with the family counselor in following hers or his recommendations to facilitate better cooperation and communication between the parties for the benefit of [their son].

Plaintiff shall advise defendant timely of any and all issues relating to the health, education and welfare of [the child].

The trial court's decision was memorialized in an order dated August 30, 2007.

The scope of our review is limited. A trial court's findings "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "[A]n appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 412 (alteration in original) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). In the present matter, deference is particularly appropriate because "the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997).

Based on our review of the record, we are satisfied that Judge Solomon correctly applied well-settled legal principles and his findings, including his credibility assessments, are amply supported by sufficient credible evidence in the record. Accordingly, we affirm substantially for the reasons stated by Judge Solomon in his comprehensive oral decision on August 30, 2007.

 
Affirmed.

(continued)

(continued)

15

A-0795-07T3

November 17, 2008