H.C.F. VS. J.T.B. (FV-14-1099-15, MORRIS COUNTY AND STATEWIDE)(RECORD IMPOUNDED)
A-5618-14T3
| N.J. Super. Ct. App. Div. | Sep 7, 2017Background
- Parties: M.S. (plaintiff, mother, moved to U.S. in 2007) and J.S. (defendant, father, lives in England); two daughters (now 17 and 15).
- 2010: Defendant convicted of two financial frauds, served prison time; a final restraining order (FRO) issued December 1, 2010, barridding contact with plaintiff and children.
- 2012: Amended order permitted limited contact and ordered therapeutic reunification via Skype; Dr. Paul Dasher appointed reunification therapist and supervised Skype sessions began.
- 2014–2015: One Skype session was recorded by defendant without consent; he agreed not to record further sessions. Dr. Dasher recommended in-person contact when safe; no in-person visits occurred.
- Family Part judges repeatedly ordered defendant to produce detailed records about his convictions, sentence, and visa application; plaintiff sought further disclosures and fees were awarded over time.
- May 28, 2015 order (appealed): suspended the Skype reunification process (contact limited to letters), directed adverse inference against defendant for future parenting-time determinations, denied following Dr. Dasher's recommendations, awarded plaintiff $4,124 counsel fees and imposed a $10,000 penalty; no findings of fact or legal conclusions were given.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of orders requiring disclosure of conviction, parole, and visa materials | Disclosure necessary to build trust and assess credibility | Orders lacked legal basis and relevance to parenting time; intrusive and unsupported | Reversed: disclosure orders vacated for lack of findings and demonstrated relevance; continued FRO/notice requirement remains if travel occurs |
| Suspension/termination of therapeutic reunification (Skype) | Suspension justified by defendant's unauthorized recording and children's expressed discomfort | Recording was addressed (defendant agreed not to record); suspension effectively terminated reunification without explanation | Reversed: suspension/termination was unsupported and an abuse of discretion; reunification should resume under Dr. Dasher's supervision |
| Imposition of an adverse inference re: future parenting time | Plaintiff sought preemptive sanction to affect future parenting determinations | No basis for a preemptive adverse inference; no spoliation findings or legal foundation | Reversed: adverse inference improperly imposed without explanation or precedent |
| Counsel fees and $10,000 monetary sanction for discovery noncompliance | Sanctions justified by defendant's alleged chronic noncompliance | Defendant provided many documents; no findings supported imposition; procedural safeguards and rule-based analysis not followed | Reversed: fees and sanction vacated for lack of findings, Rule 5:3-5(c) analysis, and disproportionality; further fees not ordered |
Key Cases Cited
- Clark v. Clark, 429 N.J. Super. 61 (App. Div.) (standard for deference to Family Part factual findings)
- Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366 (1995) (appellate review standard for legal conclusions)
- Curtis v. Finneran, 83 N.J. 563 (1980) (duty to make findings of fact and conclusions of law for appealable written orders)
- Kenwood Assocs. v. Bd. of Adj. Englewood, 141 N.J. Super. 1 (App. Div.) (importance of findings in written orders)
- S.M. v. K.M., 433 N.J. Super. 552 (App. Div.) (parents retain right to reunification therapy/visitation despite serious misconduct)
- City of Long Branch v. Liu, 203 N.J. 464 (2010) (fact-finder not bound to accept expert opinion)
- Rosenblit v. Zimmerman, 166 N.J. 391 (2001) (use of adverse inference doctrine, typically for spoliation)
- State v. Clawans, 38 N.J. 162 (1962) (adverse inference for defendant's failure to call available witnesses in criminal context)
- Ridley v. Dennison, 298 N.J. Super. 373 (App. Div.) (sanctions must not be overwhelmingly punitive; procedures and safeguards required)
- Johnson v. Johnson, 390 N.J. Super. 269 (App. Div.) (recusal/transfer considerations when judge's view may impede impartial resolution)
- Carmichael v. Brian, 310 N.J. Super. 34 (App. Div.) (similar concerns about judge's continued involvement when bias or fixation is perceived)
Outcome: The Appellate Division reversed the May 28, 2015 order in full, vacating the disclosure requirements, the suspension of reunification, the adverse inference, and the monetary sanctions; the case is remanded for continuation of therapeutic reunification under a different judge and for Dr. Dasher to restart the process.