KARIN VALENTINE v. JOHN J. VALENTINE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2197-08T1

KARIN VALENTINE,

Plaintiff-Respondent,

v.

JOHN J. VALENTINE,

Defendant-Appellant.

________________________________

December 8, 2009

Submitted November 18, 2009 - Decided

Before Judges Sabatino and Lyons.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-83-03.

John J. Valentine, appellant pro se.

Scholl, Whittlesey & Gruenberg, LLC, attorneys for respondent (Franklin G. Whittlesey, of counsel and on the brief).

PER CURIAM

This is an appeal of a post-judgment order in a matrimonial case. Defendant, John J. Valentine ("the father"), seeks review of certain aspects of an order entered by the Family Part on November 17, 2008 regarding child support, parenting time conditions, counsel fees, and other miscellaneous issues.

We affirm the trial court's order, except insofar as it concerns the apparent dog allergies of the parties' seven-year-old son and the concomitant prohibition on the son having overnight stays with his father. We remand to the Family Part for further consideration of the nature and severity of the son's allergies, particularly in light of his treatment by his most recent allergy specialists.

I.

The pertinent facts are comprehensively set forth in the motion judge's memorandum decision dated November 14, 2008, which we substantially incorporate by reference. By way of summary, the parties were married in 2001 and had one child together, a son born in 2002. Within a year after his birth, the parties separated and a divorce action was brought by plaintiff Karin Valentine ("the mother"). Both parties retained counsel in the divorce litigation. As the result of negotiations, the parties agreed to the terms of a Property Settlement Agreement ("PSA"), which was incorporated into a Final Judgment of Divorce entered by the Family Part on May 27, 2003. Among other things, the PSA provided that the parties would share joint legal custody of the son, that the mother would be the parent of primary residence, and that the father would pay child support and have substantial parenting time.

The father remarried in August 2007. He moved into the residence of his new wife and her three children from a previous marriage. Three dogs live at the residence, having become pets of the stepchildren prior to the father's relocation there.

The father was employed through 2007, when he became disabled from a motor vehicle accident. He now collects Social Security and State pension benefits. The mother is employed full time. Her own mother, the child's maternal grandmother, has provided child care for the son while the mother is at work.

Disputes arose between the parties over a variety of post-judgment issues. These disputes led to a series of motions and cross-motions successively filed in the Family Part in 2007 and 2008.

The most recent motions and cross-motions, which resulted in the order now on appeal, were orally argued on November 14, 2008. The court granted the mother's motions in part and denied them in part. Likewise, the court granted the father's cross-motions in part and denied them in part. The motion judge issued a seventeen-paragraph order, prepared by the court itself, reflecting these dispositions, as well as a twelve-page, single-spaced memorandum opinion explaining the reasons for each of the dispositions.

II.

The father now appeals several aspects of the November 17, 2008 order. The mother has not filed a cross-appeal of any of the items on which she was unsuccessful.

Specifically, the father, who is now self-represented, argues that: (1) the court erred in ordering him to reimburse the mother for child care expenses claimed for the period from September 3, 2007 through April 25, 2008; (2) the mother failed to supply adequate proof of payment of the child care expenses; (3) the court erred in ordering the husband to cease making unilateral adjustments to the child care payments; (4) the mother has been in violation of his litigant's rights; (5) he is entitled to a credit for child care allegedly overpaid for past holidays and vacation time; (6) the court wrongfully denied his request to prohibit the maternal grandmother from attending the son's medical visits; (7) the court erred in declining his request to have the child examined by an allergist, Dr. Fox; (8) the court erred in denying his request for an order enjoining the mother from using inflammatory language in the son's presence; and (9) the court improperly awarded counsel fees to the mother and reciprocally erred in denying the father counsel fees.

In assessing these post-judgment matrimonial issues, we bear in mind that our scope of review is limited. Given the Family Part's special expertise, appellate courts must accord particular deference to the trial court's findings in family cases, and to the conclusions that logically flow from those findings. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). See also Pascale v. Pascale, 113 N.J. 20, 33 (1988). We will not disturb the trial court's findings unless they are demonstrated to lack support in the record with substantial, credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). We also must be deferential on matters of equity and discretion applied by a Family Part judge. See Martindell v. Martindell, 21 N.J. 341, 355 (1956) (noting the "wide discretion which our law rightly affords" to trial judges hearing family cases).

Measured by these standards, and having carefully reviewed the entire record supplied to us, we are satisfied that nearly all of the motion judge's rulings are amply supported by the proofs. They also reflect the sound exercise of judicial discretion in resolving the many persisting issues raised by these highly litigious former spouses. With the exception of the disposition of the issues relating to the son's dog allergies, we affirm the order appealed from, substantially for the reasons set forth in the judge's detailed written opinion of November 14, 2008.

In particular, we see no reason to disturb the motion judge's rulings on child support. Although we appreciate the father's desire to have the mother justify the child care expenses that he is obligated to subsidize, the checks and other documentation supplied by the mother to the motion judge reasonably suffice for that purpose. The minor discrepancies alleged by the father as to the precise number of days on which his former mother-in-law cared for her grandson, or needed to care for him, do not warrant further hearing. Likewise, we will not set aside the judge's discretionary rulings concerning the grandmother's attendance at the boy's medical visits, or with respect to the mother's alleged use of inflammatory language. We also are satisfied that the judge's award of counsel fees to the mother comported with the general factors set forth in Rule 5:3-5(c); see also Williams v. Williams, 59 N.J. 229, 233 (1971) (recognizing the latitude given to trial judges in awarding counsel fees in matrimonial actions).

III.

That all being said, we do have concerns about the resolution of the issues relating to the son's allergies and the continued prohibition of overnight parenting time at his father's residence. In general, the law recognizes the importance of a child developing and maintaining a close relationship with both of his parents. N.J.S.A. 9:2-4; McCown v. McCown, 277 N.J. Super. 213, 218 (App. Div. 1994). Overnight visits, particularly for a younger child, help fortify his bonds with the non-custodial parent. Such overnight stays at the non-custodial parent's home are not only significant for that parent, but also commonly beneficial for the child. The parent and child normally should be allowed to enjoy times sharing a meal at the kitchen table, curling up on the sofa together, or reading a bedtime story within the confines of the parent's own dwelling.

We also recognize that this relationship may be judicially altered to safeguard a child's physical health and well being, and to assure that the child receives good medical care. Wilke v. Culp, 196 N.J. Super. 487, 496 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985) (recognizing that custody and visitation "may be restricted, or even terminated, where the relation of one parent (or even both) with the child [could] cause emotional or physical harm to the child"). Indeed, the parties mutually recognized this imperative by including in their PSA a provision that assures medical coverage for their son. The PSA also gives both parents, who share joint legal custody, an equal voice in major medical decisions affecting the child. In the same vein, the PSA recited that "[e]ach parent shall be entitled to complete detailed information from any pediatrician, general physician, dentist, consultant or specialist attending the child or any reports rendered by such[.]"

We consider these general principles in turning to the specific issues implicated by the son's apparent allergy to dogs and its effect on the father's parenting time. The relevant chronology is as follows.

In the PSA, the parties agreed to work with a designated expert, Dr. Barbara Menzel, "to establish an enhanced parenting schedule to correspond with the minor child's maturation and growth." The parties specifically expected that by March 2003, the father's parenting time with the son would "expand on Sundays to a full afternoon and that parenting time can take place at the [f]ather's residence . . . [.]" The parties further agreed in the PSA to "work with Dr. Menzel with regard to the transition to overnight parenting time." (Emphasis added).

For the next three years, pursuant to the PSA, the father had parenting time with the son in the mother's home for two to three hours on Wednesdays after work and all day Sunday. Throughout this time, the parties consulted with Dr. Menzel, to gradually increase the father's parenting time. Eventually the father's parenting time was increased to overnight stays in his residence, which was then in Ocean Township, on alternating weekends.

On or about August 3, 2007, the father remarried. Thereafter, the father moved in with his new wife and her children from a previous marriage in their home in Cedar Knolls. The father's new stepchildren owned three dogs at their home. Shortly after the father's relocation, the mother refused to allow the son to resume any overnight parenting at the father's new home. She did so out of an expressed concern that the dogs would trigger an asthmatic attack in the son, who had previously been diagnosed with asthma and allergies.

In March 2007, the mother began to take the child to Summit Pediatric Pulmonology, LLC, ("Summit") for treatment of his asthma. The mother then shifted the child's care in July 2007 to James A. Fox, M.D., at Fox Skin and Allergy Associates, in Branchburg. According to the father, this change to Dr. Fox was made without his prior knowledge or consent.

In October 2007, the father filed a motion seeking various forms of relief. One of his requests was to have the court adjust the parenting schedule to allow him to have overnight parenting time with his son at his home in Cedar Knolls on alternate weekends. The father's motion also requested an order from the court to compel the mother to include him in all future medical decisions for the child.

In support of his initial request for overnight parenting time, the father presented an October 31, 2007 letter from Jeanne H. Horsey, CPNP, a certified pediatric nurse practitioner at Summit. Nurse Horsey stated that "[h]istorically most of [the son's asthma] episodes were triggered by colds and infections." Her letter continued:

It was not our impression that [the son] had chronic symptoms when exposed to dogs; and his symptoms were controlled with standard asthma therapy. In such cases we do not find it necessary to remove any pets from the environment. Such a maneuver does not usually result in a decrease in the frequency of exacerbations. In fact, the emotional distress caused by the removal of the pet (or in this case forced removal from the father's house) may trigger asthma.

The mother filed a cross-motion seeking to restrict the father's overnight parenting time because of the presence of dogs, a known allergen for the child, in his new household. In support of her cross-motion, the mother presented a letter from Julie Honey, MSN, CPNP, another certified pediatric nurse practitioner at Summit, in May 2007. The letter from Nurse Honey listed various allergy tests that had been performed on the child. She stated that the son's "[e]xposure to pets should be minimal, and [the son] should be on an antihistamine when being exposed to dogs or cats. Claritin, Zyrtec or Allegra can be taken prior to and during an exposure to animal dander." The test results attached to the letter detailed the child's allergy level to dog dander at IgE Class 2 and 3.40 kU/L.1

Upon considering these proofs in the fall of 2007, the Family Part judge who was then assigned to the case ruled that, given the child's documented allergies, overnight visitation in the father's new home would not be in the son's best interests. The judge invited the father's counsel to "get me something medically that supports your position then of course you're entitled to visitation overnight with the child. But I need to know that it's not medically contraindicated."

When the father's counsel pointed to the letters from the nurses at Summit, the judge responded that he believed that Dr. Fox, who was then the son's treating allergist, would provide a more persuasive opinion as to the appropriate level of allergen exposure. The judge encouraged the father to consult Dr. Fox, as "the person that understands the sensitivities and knows where [the son] is in the progression of his allergies to what he can tolerate and what he can't tolerate."

The court issued an order on November 9, 2007, directing, in relevant part, that the father "shall not have overnight parenting time with [the son] until the dogs are removed from [the father's] household and the home is professionally cleaned, or until [the father] receives a written statement from [the son's] allergist[,] Dr. Fox[,] stating that it is not adverse to [the son's] health for [him] to be in the home with dogs in the basement." The order also denied the father's request for increased parenting time and overnight visits in his home, until the father either removed the dogs or obtained clearance from the child's doctor to have the child in his home.

Thereafter, the father met with Dr. Fox. As a result of this consultation, Dr. Fox recommended that the son undergo an allergy test at the father's home over a weekend. The father alerted the mother to this recommendation in a letter. The mother replied by letter, expressing concern that the father had met with Dr. Fox outside of her presence but not addressing the allergy test that Dr. Fox had recommended.

The father scheduled the test for February 2, 2008 and notified the mother. On January 24, 2008 the mother responded, stating that she had learned about the test in a meeting with Dr. Fox and that she was now objecting to the test. The father then rescheduled the test for February 16, 2008. On February 12, 2008, the mother sent another letter to the father, objecting to the test and advising the father to simply get rid of the dogs at his home. The father then rescheduled the test a second time for March 29, 2008. He also filed a motion with the Family Part to compel the mother to consent to him taking the son for the weekend for the purpose of performing the test.

The prior judge heard the father's motion on March 20, 2008. The father relied upon a letter from Dr. Fox dated February 2, 2008, recommending that the son "undergo a challenge to determine whether exposure to dogs at his father's residence affects his asthma." Dr. Fox further recommended that the "[c]hallenge would include office visits with lung function testing before and after a weekend visit to his father's home. [The child] would remain on his current asthma medication (Flovent) during the weekend."

The judge was not persuaded by Dr. Fox's recommendation to proceed with the weekend test, concluding that it was not in the son's best interest. The judge suggested that the father obtain a letter from Dr. Fox stating that "it's not contrary to [the son's] health to be exposed to dogs, which is a known allergen to him[.]" If the doctor provided such written confirmation, then the court would allow the son to go to the father's residence. The judge required "a better explanation" from Dr. Fox "as to why he's ordering this test." He suggested to counsel to have Dr. Fox state "that it's his recommendation that this test be done because he thinks it's in the best interest of the child and explains . . . why that's true given [the son's] allergy."

The court entered an order on March 20, 2008, denying the father's request to compel the mother to consent to the pulmonary function test. In his accompanying written statement of reasons, the judge stated that, "[a]ll [the father] need[s to] obtain is a written statement by Dr. Fox stating that it will not be adverse to [the child's] health to be in the home where the dogs have been." As to the pulmonary function test, the judge stated that:

[a]lthough the court directed [the father] to get a written statement from Dr. Fox stating that it is not adverse to [the son's] health for [him] to be in the home where the dogs have been, this does not mean that [the son] should be subjected to tests that knowingly will subject him to ill health.

Instead, the judge directed the father to get a statement from Dr. Fox that the test was medically necessary. The judge instructed that "[t]here must be more than the bare statement as the doctor must explain the child's condition, his treatment history, what role the test contemplated plays in the overall treatment plan and the efficacy that the results of the tests to understanding the child's medical condition and future treatment."

The same day that the court issued its March 20, 2008 order directing the father to obtain an amplified statement from Dr. Fox, the mother unilaterally transferred the care of the son's allergies from Dr. Fox to the Children's Hospital of Philadelphia. This change was relayed to the father by way of a letter from Dr. Fox. In his letter, Dr. Fox indicated that the change of treating caregivers left him "unable to express any further opinion on this matter."

After learning that the mother had switched the care of the child from Dr. Fox to the Children's Hospital of Philadelphia, the father's attorney sent a letter to the treating allergist there, Jonathan Spergel, M.D., asking if he would write a letter addressing the testing issues that the court had suggested Dr. Fox to address more fully. When Dr. Spergel did not reply, the father filed another motion, urging the court to find the mother in violation of the court's earlier order by changing the child's care from Dr. Fox to the Children's Hospital of Philadelphia. In that same motion, the father requested, among other things, that an independent allergist be appointed by the court to evaluate the testing issues.

The mother filed a cross-motion, seeking, among other things, that the father be ordered to cease and desist from contacting the son's treating physicians.

Following oral argument, the court entered another order on July 11, 2008 accompanied by a written statement of reasons. Specifically, the court found the mother was in violation of the divorce judgment by switching the child's physician without consulting the father. The court ordered that the parties consult on all future medical decisions regarding the child and required that either party copy the other on any correspondence to the child's physicians within twenty-four hours of such correspondence. The court also ordered the mother to set up an appointment within thirty days of the order with the child's new treating physician at Children's Hospital, Dr. Spergel, for the purposes of determining the son's allergy levels. Additionally, the court established a summer parenting time schedule in which the father would have weekly physical custody of the son outside of the father's home, in an area that did not contain any known allergens for the child.

At some point in time after the June 11, 2008 motion, both parties were present at an appointment with Dr. Spergel to discuss the child's allergies. The mother took handwritten notes during the session, reflecting what she claims were Dr. Spergel's responses to various questions that she asked. However, Dr. Spergel never submitted anything to the court or to the parties that could be construed as a report on the child's allergies.

On October 3, 2008, the mother filed a motion seeking enforcement of unpaid child care expenses. The father filed a cross-motion requesting, among other things, that the court allow him to take the child to Dr. Fox to perform the recommended allergy test at the father's home. The motion and cross-motion were assigned to a different Family Part judge because the judge who originally had been handling the post-divorce issues up until that time had moved to a different vicinage.

Following oral argument, the new motion judge denied the father's request for relief concerning the allergy issues and parenting time. The judge perceived that, in the absence of a report from the child's current treating physician, there were no new developments that warranted a change in the status quo.

Despite this lengthy chronology, it is our sense that the issues concerning the son's allergies to dogs have not been fully or adequately developed in the trial court. Before overnight visits with the father at his dog-occupied household are precluded indefinitely, we believe with all due deference to the Family Part that the record should be developed more to ascertain the degree of the son's allergy condition and whether there are any feasible ways to allow the child to stay overnight at his father's home occasionally without causing him undue harm.

We are cognizant that the father's counsel was unsuccessful in persuading the son's present specialist at Children's Hospital, Dr. Spergel, to furnish a report on these unresolved matters to the court. However, it is unclear if Dr. Spergel would decline to provide such a report at the court's express request. If he did so decline, it is not certain if other specialists at the hospital could perform an appropriate evaluation at the court's request. The son's prior treating allergist, Dr. Fox, was seemingly willing to provide such written reports, and the court and the parties should not be evidentially disadvantaged by the change in physicians. Moreover, the child is older now than when these dog allergy issues first surfaced, and perhaps his level of tolerance has improved in the interim.

Consequently, we remand these allergy and parenting time issues to the Family Part for further exploration. In particular, the motion judge should order the parties, through their counsel, to request the son's treating physicians at Children's Hospital to provide a narrative report on the subject, including advice on whether or not additional testing would be informative and the degree such testing would be harmful, if at all, to the son. In making that request, counsel should make clear to the physicians that it is being made at the behest of the court. If the treating physicians still decline to provide their expertise to the court, the judge should consider appointing another expert, at the parties' expense, to advise the court accordingly. The court will maintain the discretion to conduct a plenary hearing on the subject, if warranted, and to consider any other relevant proofs.

Affirmed in part, and remanded in part. We do not retain jurisdiction.

1 IgE refers to the class of antibodies known as immunoglobulin E, an antibody in the blood that reacts to the presence of allergens. Stedman's Medical Dictionary 873, 881 (27th ed. 2000). The class structure ranges from 0 to 6 and refers to the level of allergen specific IgE antibody in the blood. An IgE Class 0 refers to absent or undetectable antibodies and a concentration of less than 0.35 kU/l (kilounits per liter). An IgE Class 6 refers to a very high level of antibodies and a concentration of more than 100 kU/l. A person with class 6 exposed to the associated allergen would have a severe allergic reaction. Stedman's, supra, 1523. IgE Class 2 is labeled as a "[m]oderate [l]evel" and a concentration of between 0.71 and 3.50 kU/l.