PAMELA A. BIANCAMANO v. JEFFREY P. BIANCAMANO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2100-11T1

PAMELA A. BIANCAMANO,

Plaintiff-Respondent,

v.

JEFFREY P. BIANCAMANO,

Defendant-Appellant.

Telephonically Argued November 13, 2012 Decided November 30, 2012

 

Before Judges Parrillo and Sabatino.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1000-10.

 

Brian D. Winters argued the cause for appellant (Keith, Winters & Wenning, attorneys; Mr. Winters, on the brief).

 

Andrea Beth White argued the cause for respondent (Tonneman, Vuotto, Enis & White, attorneys; Ms. White, of counsel; Carrie A. Lumi, on the brief).

PER CURIAM

Defendant Jeffrey Biancamano appeals from the November 21, 2011 order of the Family Part substantially modifying his parenting time as originally agreed to in a consent order of October 2, 2008, embodied in a final judgment of divorce (FJD). For the following reasons, we reverse the modification order and remand for further proceedings.

Defendant and plaintiff Pamela Biancamano were married on May 24, 2003 and divorced six years later on July 24, 2009, in North Carolina, where they resided during their marriage. They have two children, A.B., born in November 2003, and P.J., born in June 2005. Since October 2005, plaintiff and the children have resided in New Jersey while defendant continues to live in North Carolina.

In anticipation of their divorce, the parties entered into a "permanent consent order on child custody," which was domesticated in New Jersey on April 19, 2010. The agreement provided for residential custody of the children with plaintiff. Defendant, on the other hand, was allowed liberal visitation:

The Defendant shall exercise visitation with the minor children for one weekend per month in New Jersey. In the event said month contains a teacher's workday or other day that the minor children are out of school, the Defendant shall have that long weekend. In the event there is not a long weekend in a particular month, Defendant shall exercise visitation with the minor children in New Jersey from the time school is released on Friday until 5:00 p.m. on the following Sunday.

 

Defendant was also entitled to visitation on the Thanksgiving and Christmas holidays and, during the summer, three weeks immediately following the last day of school and three weeks before Labor Day. The parties were equally responsible for transporting the children by meeting at a designated halfway point.

Both parties acknowledged in the consent order their children's significant food allergies and pledged to comply with all dietary and nutritional requirements. They were required to communicate with each other and to "make any long-term . . . decisions on behalf of [the] minor children jointly after considering" each other's position. Both parents were to have access to all school, counseling and medical records pertaining to their children.

As recognized in the consent order, both children have medical conditions and, as a result, are on a steady regimen of vitamins and supplements. P.J. has severe eczema that results in painful flare-ups, and chronic diarrhea. Dr. Karen Harum, a neuro-developmental pediatrician in North Carolina, and the children's dietary physician while they resided in that State, diagnosed P.J. with severe allergic reactions to most foods. In fact, Dr. Harum prescribed epinephrine pens for both children in case of extreme allergic reaction. In addition, P.J. remains on a highly controlled "rotation diet."1

In addition to dietary restrictions, A.B. also suffers from sensory dysfunction disorder (SDD), also known as sensory integration disorder (SID), a neuro-developmental condition rendering her unable to process and control her emotions, for which she undergoes specialized therapy treatment. Dr. Richard Reutter, who evaluated A.B., also recommended close monitoring and a "highly structured, consistently applied behavior modification program which emphasizes positive reinforcement."

According to plaintiff, defendant has not had extended parenting time with his children since their July 24, 2009 divorce, by his own volition. Nevertheless, on April 27, 2011, defendant moved to enforce litigant's rights to allow visitation with his children as provided in the consent order, internet communication over Skype, and access to their health and school records. Plaintiff opposed the motion and cross-moved to substantially restrict defendant's parenting time schedule and condition its resumption upon approval by Dr. Harum and A.B.'s therapist, due to changed circumstances resulting from the children's allegedly deteriorating health conditions.

In support of her cross-motion, plaintiff alleged that P.J. has had a number of severe eczema reactions to food allergens, which were fed to him by defendant while in defendant's care, and that defendant has failed to treat P.J.'s reactions properly or give him his vitamins and supplements. On this score, plaintiff offered the certification of Dr. Maria Micale, who evaluated P.J.'s condition and determined that P.J. "needs to be managed on a daily basis with application of the appropriate creams and emollients and with food allergen avoidance." Dr. Micale examined P.J. on two occasions after he had been in defendant's care and found he had a severe eczema reaction, concluding that these reactions were from "exposure to allergens while under his father's care and stopping of his skin care maintenance plan."

As for A.B., plaintiff further contended that defendant refuses to acknowledge and tailor his conduct to meet the child's pervasive needs and, as such, A.B. has been severely distraught after visiting with defendant and no longer wishes to visit with him. As noted, Dr. Reutter evaluated A.B. and recommended therapy and a "highly structured behavior modification program."

In response, defendant denied plaintiff's allegations and claims he is fully aware of the children's dietary needs and abides by their dietary regimen. He stated that he has not been provided with the children's updated medical records and disputes Dr. Micale's opinion that P.J.'s reactions were due to exposure to allergens under defendant's care, claiming that Dr. Micale was simply relying upon plaintiff's accusations. According to defendant, P.J. arrives for visitation with extremely irritated skin and defendant believes the amount of medication given to both children is too excessive.

As to A.B., defendant asserted that she is "always stronger and happier after she has spent time with me." Defendant asserted that he tries to support her so that her special needs do not define her, whereas plaintiff is far too controlling, overbearing and manipulative, and wrongly focuses on A.B.'s shortcomings, therefore stifling her development. According to defendant, plaintiff refuses to allow A.B. to "relax and be normal," whereas A.B. enjoys her time with defendant and his family members.

On the basis of the conflicting certifications alone, and without oral argument or an evidentiary hearing, the motion judge granted defendant very limited relief in the way of telephone and Skype communication on Sunday evenings, but otherwise substantially restricted and conditioned his parenting time in accordance with plaintiff's requests, as follows:

a. The defendant shall consult with and be evaluated by Dr. Harum of the Clinic for Special Children . . . Wilmington, North Carolina.

 

b. Upon receipt of a written positive report from Dr. Harum providing that the defendant understands and appreciates the parties' children's medical conditions and dietary and health needs, the defendant shall be entitled to overnight parenting time with the parties' son P.J., once a month from Friday at 3:30 p.m. until Sunday at 5:00 p.m. The defendant shall notify the plaintiff at least three (3) weeks in advance of his selected weekend.

 

c. As to summer parenting time with P.J., contingent upon the report from Dr. Harum, the defendant shall have one (1) week of overnight parenting time with P.J.

 

d. In addition to the report from Dr. Harum, the defendant's overnight parenting time with the parties' daughter, A.B., shall commence only after receipt of a report from A.B.'s therapist providing that A.B. is emotionally prepared for overnight parenting time with the defendant. Upon receipt of a written positive report from A.B.'s therapist, the defendant shall be entitled to overnight parenting time with A.B. at the same time as parenting time with P.J.

 

e. Until such time that A.B. is prepared for overnight visitation with the defendant, the defendant shall be entitled to parenting time with A.B. from 11:00 a.m. until 5:00 p.m. on the Sunday of the weekend of parenting time with P.J.

 

f. As to summer parenting time with A.B., contingent upon the report from Dr. Harum, the defendant may exercise daytime parenting time with A.B. during the defendant's week of parenting time with P.J. In the event that A.B.'s therapist provides that she is prepared for overnight parenting with the defendant, the defendant may have overnight summer parenting time with A.B. at the same time as summer parenting time with P.J.

 

g. Until further Order of the Court or agreement between the parties, the defendant's parenting time with the parties' children shall take place in New Jersey or at his mother's home in Glen Cove, Long Island, New York.

 

h. At all times, the parties shall comply with the Permanent Consent Order on Child Custody, the four (4) page attachment now included with that Order, and the recommendations of Dr. Harum and A.B.'s therapist.

 

The motion judge reasoned thusly:

The Court is satisfied that there is a sufficient "change in circumstances" to warrant some modification of the defendant's parenting time schedule with the parties' children. At the time of the entry of the Consent Order, the parties were aware of, and made provision for, the children's significant health issues. The plaintiff has certified that the children's health conditions, and in particular, [A.B.'s] health conditions, have worsened. She has expressed concerns regarding the defendant's understanding of the children's health conditions. Thus, the plaintiff's application for the addition of contingencies prior to continued parenting time is hereby granted.

 

On appeal, defendant primarily maintains that the motion court erred in substantially curtailing his parenting time based simply on conflicting proofs, without benefit of a plenary hearing, to which he was entitled. Defendant also claims that by conditioning restoration of his parenting time upon the approval of outside professionals, the court wrongly delegated its judicial responsibility to resolve family disputes. We agree with both of these arguments.

Scheduling parenting time based upon a determination of children's best interests is a matter of sound judicial discretion. See Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 157 (App. Div.), certif. denied, 178 N.J. 34 (2003). Reviewing courts generally give deference to both the exercise of discretion and the fact-finding of Family Part judges. Ibid. Because of their special jurisdiction and expertise in family matters, the findings of Family Part judges are "binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-13 (1998).

By the same token, we are not bound by a trial court's construction of legal principles, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); In re Adoption of a Child by P.S., 315 N.J. Super. 91, 107 (App. Div. 1998); or its application of the law to the facts, Cobo v. Market Transition Facility, 293 N.J. Super. 374, 383 (App. Div. 1996). Moreover, in the exercise of the trial court's discretion, any error may be reversed if the resultant ruling goes so "wide of the mark" that it "cannot stand." Yueh v. Yueh, 329 N.J. Super. 447, 461 (App. Div. 2000); Ratner v. General Motors Corp., 241 N.J. Super. 197, 202 (App. Div. 1990). We conclude this to be the case here.

Parental rights to custody and visitation are held "in high esteem" and are guaranteed judicial protection. Wilke v. Culp, 196 N.J. Super. 487, 496 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985). New Jersey courts are committed to the principle that "children of separated parents should be imbued with love and respect for both parents, and where children are in [the] custody of one parent, the court should endeavor to effect this facet of the children's welfare by conferring reasonable rights of visitation on the other parent." Ibid.

Given the significance of the parental rights involved, it is well-settled that issues of child custody and parenting time should not be decided on the basis of materially conflicting affidavits alone, nor upon an inadequate record. Mackowski v. Mackowski, 317 N.J. Super. 8, 11-12 (App. Div. 1998); Fusco v. Fusco, 186 N.J. Super. 321, 327 (App. Div. 1992); Wagner v. Wagner, 165 N.J. Super. 553, 555 (App. Div. 1979), certif. denied, 85 N.J. 93 (1980). While not necessitated in every contested matrimonial proceeding, Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976), a plenary hearing is required when the "submissions show there is a genuine and substantial factual dispute regarding the welfare of the children, and the trial judge determines that a plenary hearing is necessary to resolve the factual dispute." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007).

In Wagner, supra, the mother had custody of the two children and unilaterally enrolled the two children in Hebrew school, which required their attendance on Saturday mornings. The father previously had visitation rights for every other weekend, from Friday afternoon to Sunday evening. 165 N.J. Super. at 555. The trial court's order modified the original visitation order, stating that when Hebrew school is in session, the father's visitation begins on Saturday upon the completion of Hebrew School. Id. at 554. This resulted in the effective loss of Saturdays as visitation days because of travel. Id. at 556.

We reversed and remanded for the "purpose of ascertaining through a plenary hearing whether the visitation problem created by the timing of the religious training may not be resolved." Id. at 557-58. Even though the father may have waived a plenary hearing, we stated that "the matter of visitation is so important, especially during the formative years of a child, that if a plenary hearing will better enable a court to fashion a plan of visitation more commensurate with a child's welfare, nonetheless it should require it." Id. at 555. We stressed that parental visitation is extremely beneficial, finding that "[t]he advantages of continuous contact, love and affection between children and their estranged parents, particularly with the parent not having custody, cannot be emphasized too strongly." Id. at 557. Accordingly, we ordered a plenary hearing so that alternatives could be explored to embrace the benefits of both the father's visitation and the children's religious education. Id. at 557.

In Fusco, supra, the parties divorced and custody of their child remained with the mother subject to defendant's visitation rights. Soon after the divorce, the father was arrested for murder and sentenced to prison. 186 N.J. Super. at 322. The father moved for a visitation order requiring the five-year-old child be brought to prison on a periodic basis. Id. at 323. Based on documentary submissions of psychiatrists and family members, the court entered an order granting defendant bi-weekly visitation. Id. at 323-25. The court held no oral argument, took no testimony, and gave no findings of fact. Id. at 325.

We reversed and remanded for a plenary hearing because of the extreme circumstances surrounding the father and the vulnerability of the child. Id. at 326-27. We stated:

This visitation decision obviously should not have been made on the basis of filed documents consisting of self-serving certifications by the parties, conflicting psychiatric reports, and an unseemly and irrelevant barrage of attorney certifications and inadmissible expressions of community sentiment. That it was so made without an evidential basis, without examination and cross-examination of lay and expert witnesses, and without a statement of reasons is untenable in the extreme.

 

[Id. at 327.]

 

And in Mackowski, supra, the father moved to transfer custody of their daughter from the mother because the child wished to live with him. 317 N.J. Super. at 9. The motion judge denied the application without making any findings of fact or conclusions of law. Id. at 10. We reversed, citing Rule 5:8-62, finding that a plenary hearing is required when custody is a genuine and substantial issue. Id. at 11-12.

Here, the motion judge significantly altered defendant's parenting time from that agreed upon in the October 2, 2008 consent order. More significant, defendant's visitation with both children hinged on approval from Dr. Harum, a North Carolina physician who had not treated the children for three years. Parenting time with A.B. further depended on a report from her therapist stating that she is emotionally prepared for overnight parenting. Until such approval from A.B.'s therapist, defendant's parenting time with A.B. was limited to six hours on the Sunday of the weekend of parenting time with P.J. Lastly, defendant's parenting time had to take place in New Jersey or at his mother's home in Long Island.3

These substantial parenting time restrictions were imposed based solely on conflicting certifications that contained disputed facts, accusations, and allegations. Moreover, the court did not discuss any of the proffered proofs, much less make explicit findings of fact or conclusions of law. Rather, the court merely stated that "plaintiff has certified" that the children's health conditions have worsened, implicitly accepting plaintiff's representations while disregarding defendant's.

The trial court's substantial modification of parenting time based upon competing paper submissions was inappropriate. There were genuine and material factual disputes as to the welfare of the children requiring a plenary hearing to resolve so important a parental right as visitation. We accordingly reverse the order of November 21, 2011 and remand for a plenary hearing.

We would be remiss if we did not address defendant's collateral claim that the court did not fulfill its responsibility and instead entrusted the parenting time determination to others. We find merit in this contention.

In P.T. v. M.S., 325 N.J. Super. 193, 200-01 (App. Div. 1999), the dispute between the parties, who divorced in 1995, involved allegations of sexual abuse by the father against the child. The divorce judgment awarded the mother sole custody and provided for efforts at reunification between the father and the child. Id. at 204. The reunification process was not successful, and as a result, the trial judge issued an order, without the aid of a plenary hearing, providing that a family therapist would supervise individual therapy for the parties and their child and could appoint "outside therapists" as well. Id. at 204. That therapist was given "sole authority" and "sole control" over the process, including "complete discretion to determine when the process had advanced to the point where reunification sessions" could occur. Id. at 204-05. The therapist's decisions and recommendations were not to be reviewed by the court and she would not be called as a witness in any proceeding. Id. at 205. The parties were ordered to comply with all the decisions made by the therapist. Ibid. Subsequent decisions by the court relied heavily on the therapist's recommendations.

We found that this was too broad of a delegation of authority to the therapist. Ibid. We stated:

The burden of decision-making in the face of . . . conflict is one of the heaviest any judge faces. There being no litmus test for truth, we understand the temptation to place too much reliance upon experts. . . . Nevertheless, we cannot allow experts to shoulder excess responsibility or authority, nor trial judges to cede their responsibility and authority. The court must not abdicate its decision-making role to an expert.

 

[Id. at 216.]

 

In Parish v. Parish, 412 N.J. Super. 39, 44 (2010), the father sought to enforce litigant's rights to compel the mother to comply with court-ordered parenting time. The judge did not review the merits of the motion, instead directing the parties to present their dispute to a parenting coordinator. Id. at 45-46. We found that the Family Part judge improperly abdicated her authority to the parenting coordinator. Id. at 52-55. Defining the role of Family Part judges, we stated:

Additionally, we take issue with the motion judge's suggestion that "parenting time and/or custody issues often do not raise issues justifying emergent and immediate relief" and that deferral of these matters to a parenting coordinator is defensible to conserve "[j]udicial time and energ[y]" (emphasis added). More than financial contests, custody and parenting time disputes trigger the need for a family judge, acting as parents patriae, to prevent harm and protect the best interests of children. In fact, interference with custody and parenting time may immediately and irreparably impact the best interests of a child and often represent classic cases necessitating court review.

 

. . . .

 

We recognize matrimonial matters are susceptible to multiple motion filings, each met by a cross-motion, centering on similar general themes of enforcement of custody or support orders. Further, we are mindful of the great expense of time, money, and emotion associated with family court motion practice and the constant demands for intervention placed upon our Family Part judges. However, even repetitive motions for enforcement, when premised upon a demonstration of a party's failure to comply with court orders, cannot be automatically deemed a burden on the judicial process and deferred to a parenting coordinator.

 

[Id. at 52-53 (citations omitted).]

 

We added:

We do not comment on the merits of the parties' claims regarding telephone time and adoption of a weekend parenting schedule, except to note court review of the alleged violations of prior orders is not obviated by the parties' agreement to utilize a parenting coordinator. See, e.g., P.T. v. M.S., [supra, at 216] ("The court must not abdicate its decision-making role to an expert.").

 

[Id. at 60.]

 

These holdings have direct application here. Clearly, the decision as to recommencement of defendant's visitation with his children was ceded to the outside experts. As noted, defendant's parenting time with P.J. was conditioned on a positive report from the children's former pediatrician, Dr. Harum. Defendant's parenting time with A.B. was further dependent on a positive report from both the pediatrician and A.B.'s therapist. The judge gave no specifics or parameters to guide these professionals in their evaluations. In so conditioning defendant's parenting time, the court improperly delegated its functions.4 Although we appreciate the important insight that qualified experts can provide to Family Part judges and do not intend to discourage the presentation and solicitation of such advice, the court must be cautious to appropriately limit the role of such experts so as not to infringe on the judicial responsibility for ultimate decision making.

R

eversed and remanded for further proceedings consistent with this opinion.

1 A rotation diet requires approximately three months free of any allergies, followed by an introduction of one small amount of a food allergen.

2 R. 5:8-6 states in part: "Where the court finds that the custody of children is a genuine and substantial issue, the court shall set a hearing date no later than six months after the last responsive pleading."

3 In reducing the summer parenting time to one week, the court did state that it was not enforcing the six week requirement for that summer: "As the defendant has not exercised any extended parenting time with the children and the summer is nearing conclusion, it is not in the children's best interests to spend six (6) weeks with the defendant during the summer."

4 We leave for the trial court's consideration defendant's related contention that the court order violated professional ethics codes by requiring the treating therapist to act as the parenting time evaluator. See N.J.A.C. 13:42-12.3.