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Superior Court of New Jersey

Appellate Division

DOCKET NO. A‑4789-99T1

William M. Plaintiff / Appellant v. M-Theresa M. Defendant / Respondent

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Civil Action On Appeal from A Final Order of the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County Sat below: Hon. Alan J. Pogarsky

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Appellant's Brief and Appendix

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The Law Office of

David Perry Davis

31 Jefferson Plaza

Princeton, NJ 08540

(732) 274-9444

Attorney for plaintiff

David Perry Davis, Esq.

On the Brief

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Table of Contents

Cover Page.................................................. i

Table of Contents.......................................... ii

Table of Authorities...................................... iii

Table of Contents to Appendix.............................. iv

Index to Transcripts...................................... xiv

Procedural History.......................................... 1

Statement of Facts.......................................... 6

Legal Argument

I.THE TRIAL COURT ERRED BY VACATING ITS PRIOR ORDERS THAT A PLENARY HEARING WOULD FOLLOW THE COMPLETION OF THE EXPERT REPORT AS TO THE ABUSE ALLEGATIONS MADE AGAINST PLAINTIFF............ 6

II.THE TRIAL COURT ERRED BY CONTINUING THE RESTRAINTS ON PLAINTIFF'S PARENTING TIME IN THE ABSENCE OF ANY FINDING WARRANTING SUCH RESTRICTIONS........................................... 10

III.THIS COURT SHOULD REVERSE THE REMAINDER OF THE TRIAL COURT'S MAY 5, 2000 ORDER.......................................... 13

IV.ON REMAND, THIS MATTER SHOULD BE HEARD BY A DIFFERENT JUDGE 15

Conclusion................................................. 16

Table of Authorities

Federal Caselaw

Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) 9, 11

Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944)........................................................ 9, 11

Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925).................................................. 9, 11

Troxel v. Granville, _____ U.S. _____,

120 S.Ct. 2054 (2000)................................... 9, 11

New Jersey Caselaw

Brill v. The Guardian Life Ins. Co. of America, 142 N.J. 520 (1995) 6

Cesare v. Cesare, 154 N.J. 394 (1998)....................... 6

In re D.C., 146 N.J. 31 (1996).............................. 6

In re Baby M., 109 N.J. 396, (1988), reversing 217 N.J. Super. 313, (Ch. Div. 1987)................................................. 15

In re Registrant G.B., 147 N.J. 62 (1996)................... 6

Matter of Guardianship of J.C., 129 N.J. 1 (1992)........... 6

Pascale v. Pascale, 113 N.J. 20 (1988)...................... 6

Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474 (1974) 6

New Jersey Division of Youth and Family Services. v. A.W., 103 N.J. 591 (1986)..................................................... 15

State v. Clowney, 299 N.J. Super. 1 (App.Div.), certif. denied, 151 N.J. 77 (1997) ................................................ 7

Watkins v. Nelson, 163 N.J. 235 (2000).............. 9, 11, 16

Carmichael v. Bryan, 310 N.J. Super. 34 (App.Div.1998)..... 15

Gallo v. Gallo, 66 N.J. Super. 1 (App.Div.1961)............. 6

J.L. v. J.F., 317 N.J. Super. 418 (App. Div. 1999)......... 15

P.T., A.T. and H.T. v.M.S., 325 N.J. Super. 193, 222 (App. Div. 1999) 6, 15

Ridley v. Dennison, 298 N.J. Super. 373 (App. Div. 1997)... 14

Shaw v. Shaw, 138 N.J. Super. 436 (App. Div. 1976).......... 6

State v. Spencer, 319 N.J. Super. 284 (App. Div 1999)....... 7

Tancredi v. Tancredi, 101 N.J. Super. 259 (App. Div. 1968).. 6

New Jersey Court Rules

R. 1:12‑1(f)............................................... 15

New Jersey Rules of Evidence

N.J.R.E. 705................................................ 7

Table of Contents to Appendix

	VOLUME I
Pa	DESCRIPTION
1-3	Order to show cause (December 9, 1999)
4-8	Certification of Defendant in support of Order to Show Cause (December 7, 1999)
9-14	Amended Final Dual Judgement Of Divorce
15	Notice of Litigants / Statement of Residence
16-17	Defendant's exhibit / alleged discussion with child
18-25	Certification of Plaintiff in opposition to Order to Show Cause (December 14, 1999)
26-33	Reply Certification of Defendant
34-35	Order (December 22, 1999) requiring evaluation, compelling parenting time to be supervised "pending further proceedings" and for other relief
36-38	Plaintiff's Notice of Motion to set date for hearing and to have hearing address appropriate sanctions against defendant for having made false allegations of sexual abuse and for other relief
39-46	Certification in support of motion / March 30, 2000
47-64	Plaintiff's exhibit A/ Custody Evaluation (December 30 1997)
65-66	Plaintiff's exhibit B/ Order - December 22, 1999 (duplicate of 34-35a)
67-75	Plaintiff's exhibit C/ Gordon Report (January 21, 2000)
76-77	Plaintiff's exhibit D/ Gordon Report (January 23, 1998)
78	Plaintiff's exhibit E/ Letter from Division of Youth and Family Services (March 2, 2000)
79	Answering Certification of Defendant (April 21, 2000)
92-95	Order: Prevention of Domestic Violence Act (May 20, 1997) Defendant's Certification Exhibit A
96-102	Certification of Defendant (September 18, 1997) Defendant's Certification Exhibit B
103-104	Order (September 22, 1997) regarding parenting time Defendant's Certification Exhibit C
105-111	Evaluation Letter 2 / December 1998 from Dr Steven Glass, MD Defendant's Certification Exhibit D
112-129	Custody Evaluation Defendant's Certification Exhibit E
130-141	Amended Final Dual Judgement of Divorce Defendant's Certification Exhibit F
142	Hand Written, alleged discussion with child Defendant's Certification Exhibit G
143	Hand Written Notes of defendant Defendant's Certification Exhibit H
144-145	Hand Written Notes of defendant Defendant's Certification Exhibit I
146	Hand Written Notes of defendant Defendant's Certification Exhibit J
147	Hand Written Notes of defendant Defendant's Certification Exhibit K
148-149	Hand Written Notes of defendant Defendant's Certification Exhibit L
150-151	Order / December 22, 1999
152 159	Dr. Alan Gordon Evaluation / Exhibit N
160	Letter to Theresa M. / Exhibit O
170-190	Bell Atlantic Phone Charges (November 14, 1998-January 14, 1999) Exhibit P
191-196	Reply Certification / Proof of Service (April 27, 2000)
197-199	Order: May 5, 2000: Sua sponte vacating prior orders and denying plenary hearing, and for other relief
200	Letter to court regarding adjournment of motion, 4/5/00
201	Letter to court regarding scheduling of motion, 4/10/00

Index to Transcripts

Transcript Designation	Description
1T	Hearing - Order to Show Cause 12/22/1999
2T	Oral argument: Motion, 5/5/2000

Procedural History

This is an appeal from an Order entered in a post-judgement matrimonial action on May 5, 2000.

On December 9, 1999 defendant filed an application for an Order to Show Cause with temporary restraints (1a, 4a‑8a). The Court signed the Order to Show Cause the same date (1a-3a).

Plaintiff filed a response certification on December 14 (18A-25a). Defendant's prior counsel executed a substitution of attorney on February 9, 2000.

On March 30, 2000, plaintiff filed a motion returnable April 14 (36a-38a). Defendant requested the motion be adjourned, stating it was not served on her within the time period permitted by the Court Rules. Defendant requested a 28 return on the motion. Plaintiff acknowledged that the motion had been served one day out of time, but requested that the Court set the motion down for a 16 day return (200a). Family Part motions are heard every Friday in Mercer County. By letter dated April 10, 2000, the Court adjourned the motion until May 5, 2000 (201a).

On April 21, 2000, defendant filed an "answering certification (79a).

On May 1, 2000, plaintiff filed a reply certification (191a). On May 5, 2000, the trial Court issued the Order now under appeal (198a-199a).

On May 10, 2000, the Notice of Appeal was filed. On May 10, an application for emergent relief was denied.

Statement of Facts

On December 9, 1999 defendant filed an application for an Order to Show Cause (1a) alleging plaintiff Bill M. had sexually abused his six year old daughter, Natasha M. (4a‑8a). The Court responded correctly to the allegation. The Order to Show Cause was granted, temporary restraints were entered and the Court scheduled an evaluation by Dr. Alan Gordon. Dr. Gordon had previously conducted a custody and parenting time evaluation during the parties' contentious divorce and had issued both a custody evaluation (47a-64a) and a supplemental report when plaintiff sought increased parenting time (76a-77a). He had previously noted the intense conflict and acrimony between the parties (63a). The December 9, 1999 allegations were also referred to the Division of Youth and Family Services (hereinafter DYFS) for investigation.

The Court stated in its December 9 Order that the "the restraints contained herein shall continue until the court receives Dr. Gordon's report, at which time the court shall set the matter down for hearing." (2a at ¶ 4).

Plaintiff filed a response certification on December 14 denying the allegations and alleging that same were made maliciously with full knowledge they were false (18a-25a). Plaintiff pointed out that it defied reason that he would abuse his daughter in this manner considering the he had been dragged into Court repeatedly on various allegations since the time of the parties separation and that their daughter was highly verbal and obviously would talk about abuse. He also pointed out that defendant had repeatedly made similar allegations, all of which had all been discredited by the prior judge assigned to the case (18a-23a).[1]

Defendant filed a Reply Certification on December 20 (26a-33a) insisting the allegations were made in good faith. On December 22, 1999, the trial Court entered an Order on the return date of the Order to Show Cause compelling plaintiff's contact with his daughter to be held in a public place and to be supervised by his defendant's mother (84a-85a).

The Court again specifically stated in its December 22 Order that the "the Court shall scheduled further proceedings in this matter upon receipt of Dr. Gordon's report."

Dr. Gordon issued his report on January 21, 2000 (67a-75a). The report indicated that the child displayed "none" of the psychological symptoms of a child sexual abuse survivor and that "confirmation of such allegations has to be made through observation of children's behavior and/or physical evidence. Neither of these is evident in this situation." (74a). There is no indication in the report that Dr. Gordon credited the sexual abuse allegations (67a-75a) and the above statements indicate that he did not find that sexual abuse had occurred (74a).

In discussing plaintiff's allegation that "the child was fed the statements by her mother and grandmother" Dr. Gordon stated "at the present time, neither can proven or disproved" (74a). The report ends with Dr. Gordon offering to the trial Court that he would "expand on any of the views presented" if requested to do so by the Court.

On March 2, 2000, DYFS issued a report exonerating plaintiff by stating "[t ]he Division conducted its required investigation and determined that the allegation was unfounded." (78a). Plaintiff certified that he had met with Norma Solis, the assigned DYFS worker. When plaintiff asked Ms. Solis whether "she believed that the allegations had been invented by defendant," Ms. Solis responded "yes." (42a).

On March 30, 2000, plaintiff filed a motion returnable April 14 requesting, inter alia, that the plenary hearing be immediately scheduled and that, upon the return date, various sanctions be imposed upon defendant for knowingly making false allegations of child sexual abuse (36a-37a). Plaintiff enclosed a copy of the DYFS letter (78a) and Dr. Gordon's report (67a-75a) as well as recounting the conversation he had with Ms. Solis (42a). Further, he explained and documented that defendant had a long history of making false allegations against him dating back to at least 1997 (96a-102a). She had in the past succeeded in having his parenting time temporarily supervised until Dr. Gordon conducted an evaluation (40a), but each time Dr. Gordon had recommended the lifting of the supervision requirement (63a). No allegations were ever credited by a trial Court.

In response to plaintiff's motion, defendant filed a certification (79a) and enclosed a different letter from DYFS stating that no further services would be provided by the Division "because you have demonstrated the ability to cooperate with recommended services without DYFS intervention" (160a). She did not oppose plaintiff's request that a plenary hearing be scheduled. In fact, in reference to Dr. Gordon, defendant stated that he "has not yet testified to this Court, nor has he been cross-examined." (86a at ¶25), and that the plenary hearing "will determine the facts" (86a at ¶26).

On May 1, 2000, plaintiff filed a reply certification again denying the allegations and pointing to various inconsistencies in defendant's allegations and her certification (191a).

On May 5, 2000, the trial Court heard oral argument and issued an Order sua sponte vacating all its priors Orders that a plenary hearing would be scheduled after the evaluations were completed. The Court indicated that it would not consider the DYFS' workers statements as they constituted inadmissible hearsay, would not open the DYFS files, and would not open the files of the Prosecutor's Office nor the Ewing Township Police Department. The Court ordered, relying solely on Dr. Gordon's ambiguous and hotly disputed report (2T 6-14 to 6-19), that supervised visitation would continue without any indication of when or if the supervision would be lifted. The Court also denied plaintiff's application to change the supervisor to his parents.

I.THE TRIAL COURT ERRED BY VACATING ITS PRIOR ORDERS THAT A PLENARY HEARING WOULD FOLLOW THE COMPLETION OF THE EXPERT REPORT AS TO THE ABUSE ALLEGATIONS MADE AGAINST PLAINTIFF

The general rule is that findings of a trial Court are binding on appeal when supported by adequate, substantial and credible evidence. Pascale v. Pascale, 113 N.J. 20, 33, (1988) (quoting Gallo v. Gallo, 66 N.J.Super. 1, 5, (App.Div.1961)), Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). It is not the role of the Appellate Division to re‑weigh the factual determinations of the trial court, which alone has the opportunity to view the demeanor of and judge the credibility of witnesses. Cesare v. Cesare, 154 N.J. 394, 416 (1998).

However, a trial Court may decide issues on a motion and without holding a plenary hearing only when to do so does not require the resolution of a question of material fact. See, e.g., Tancredi v. Tancredi, 101 N.J.Super. 259 (App. Div. 1968), Shaw v. Shaw, 138 N.J.Super. 436 (App.Div.1976). See also Brill v. The Guardian Life Ins. Co. of America, 142 N.J. 520 (1995).

The issue of whether plaintiff abused his daughter and, alternatively, whether defendant knowingly made false allegations and "fed statements" to the child is a material fact question warranting a hearing. P.T., A.T. and H.T. v.M.S., 325 N.J.Super. 193 (App. Div. 1999), Matter of Guardianship of J.C., 129 N.J. 1, 22, (1992), In re Registrant G.B., 147 N.J. 62, 87 (1996), In re D.C., 146 N.J. 31, 59, (1996). The trial Court's ruling to the contrary was plain error mandating reversal.

The trial Court stated that it was basing its decision to vacate the Orders calling for a plenary hearing based on Dr. Gordon's report. (2T 17-25 to 18-6).

Expert reports are hearsay and generally are not admissible. Hill v. Cochran, 175 N.J.Super. 542, 546‑47 (App.Div.1980). For several reasons, Dr. Gordon's report was inadmissible hearsay that could not be relied on the justify the trial Court's decision.