Opinion
DOCKET NO. A-2108-13T2
03-26-2015
ANGELA T. FERRIOLA, Plaintiff-Respondent, v. GUY W. CHIARULLI, Defendant-Appellant.
Morgenstern & Rochester, attorneys for appellant (Andrew L. Rochester, on the briefs). Archer & Greiner, attorneys for respondent (Kathleen P. Stockton, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Accurso. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FD-04-348-11. Morgenstern & Rochester, attorneys for appellant (Andrew L. Rochester, on the briefs). Archer & Greiner, attorneys for respondent (Kathleen P. Stockton, on the brief). PER CURIAM
Defendant Guy W. Chiarulli appeals from Family Part orders of October 3, 2013 and December 16, 2013 expanding plaintiff Angela T. Ferriola's parenting time and a January 23, 2014 order restoring to the parties' child two names included on her original birth certificate. Because we find defendant's arguments objecting to these orders to be utterly without merit, we affirm.
The parties are parents of a four-year-old girl. They were never married and their current relations are acrimonious. Both have seriously abused drugs or alcohol in the past. Their daughter tested positive for drugs at birth in July 2010 and suffered severe and extended withdrawal symptoms, resulting in a finding of abuse or neglect against plaintiff. Defendant has apparently been convicted of driving under the influence on at least four occasions, although the record is not clear on this point. He remains on the revoked list and lives with his parents.
At the conclusion of the abuse and neglect proceedings in April 2011, defendant was awarded sole legal and physical custody of the parties' daughter. Plaintiff was allowed weekly visitation, which was to be supervised until she completed drug treatment. Future custody and parenting time issues were to be addressed under a new FD docket number established for the purpose. See N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. I.S., 214 N.J. 8, 22-23 n.3, cert. denied, ___ U.S. ___, 134 S. Ct. 529, 187 L. Ed. 2d 380 (2013) (describing the various docket types in the Family Part).
Plaintiff completed parenting classes and began the drug treatment program recommended by the Division of Child Protection and Permanency in September 2011. At the end of 2011, she moved to have someone other than defendant supervise her parenting time, and Judge Famular began to oversee the matter. The judge denied plaintiff's request to change her supervisor and entered a comprehensive order allowing plaintiff two hours of weekly supervised parenting time.
After plaintiff successfully completed a year of drug treatment, she moved in November 2012 to end supervision of her parenting time. Judge Famular denied her request pending the results of a hair follicle test she ordered plaintiff to undergo. After reviewing the results and conducting a telephone conference with counsel for the parties, the judge entered an order in March 2013 for ten hours of weekly unsupervised parenting time and required plaintiff to submit medical records from the physician prescribing her methadone for in camera review. The order further provided that the court would "hold another telephone conference at the end of June 2013 to evaluate the parenting time and determine if parenting time should be expanded further, to include overnight parenting time for plaintiff." Finally, the order directed a home evaluation to be conducted of plaintiff's apartment prior to that conference and gave defendant the right to schedule plaintiff for another hair follicle test at his expense "so that the results can be received prior to the phone conference." Defendant did not appeal that order.
Included in the appendix is a letter from plaintiff's drug treatment program detailing her attendance over the course of a year, and noting she "has been compliant with her treatment," including regular submission to random drug and alcohol screens. The program reported that "[t]o date the only substances found in [plaintiff's urine drug screen] results are from her prescribed medications." Plaintiff continues to be maintained on methadone.
The telephone conference scheduled for the end of June did not occur until September. By that time, defendant had fired his counsel and was proceeding pro se. Accordingly, the telephone conference was conducted by the court with plaintiff's counsel and defendant. Defendant does not dispute that at the time of the conference the court had received a favorable home evaluation for plaintiff and another hair follicle test positive only for plaintiff's prescribed methadone. Having found plaintiff's unsupervised visitation to have proceeded successfully over the prior six months, and in receipt of plaintiff's medical records from the physician prescribing her methadone, the positive home evaluation and the negative hair follicle test, Judge Famular expanded plaintiff's visitation to include unsupervised overnights.
Plaintiff's counsel submitted an order under the five-day rule, R. 4:42-1(c), allowing plaintiff one overnight a week for the first two months and then going to every other weekend from Friday at 5:00 p.m. until Sunday at 6:00 p.m. and allowing an additional three hours of parenting time over the dinner hour on Mondays and Thursdays. The proposed order also provided an extended holiday schedule addressing parenting time. Defendant wrote to the court advising he had no objection to the unsupervised overnight schedule but noted specific objections to the holiday schedule. Plaintiff's counsel responded with a revised order again submitted under the five-day rule. Not receiving any objection from defendant within that period, the judge signed plaintiff's revised form of order on October 3, 2013 and sent it to the parties.
The order apparently crossed in the mail with defendant's letter to the court objecting to plaintiff's revised form of order. In his letter, defendant again reiterated that his only objection was to the holiday schedule and not plaintiff's expanded parenting time. A few weeks later, new counsel for defendant moved for reconsideration of the October 3 order contending it constituted a major modification of plaintiff's overnights that should not have occurred without a plenary hearing. Plaintiff cross-moved requesting nineteen items of relief including joint legal custody, an expansion of overnight parenting time, requiring defendant to share equally in transporting the child for parenting time and allowing plaintiff to have her family members assist with transportation and requiring a name change for the child.
The parties and their counsel appeared before the court on December 16. After allowing extended argument and addressing each issue the parties raised, Judge Famular entered an order the same day granting inter alia, defendant's request to reconsider the holiday schedule, allowing each party one week of vacation with the child during the months of June, July and August; requiring plaintiff to submit to random drug tests; denying plaintiff's request for joint legal custody, without prejudice; allowing plaintiff additional overnight parenting time on Mondays following defendant's weekend beginning in September 2014; expanding plaintiff's parenting time from four hours to five and one-half hours on Mondays and Thursdays; requiring defendant to pick up the child following plaintiff's weekend and allowing plaintiff's mother and sister to assist her in transporting the child for parenting time; and requiring submission of a separate name change order restoring to the child two names included on her original birth certificate.
Noting plaintiff's success in drug treatment and in managing responsibly each incremental step increasing her parenting time, the judge concluded that increased unsupervised parenting time with plaintiff was in the child's best interest, because she "is entitled to have two parents" involved in her life. Although providing for random drug tests, the judge noted several times her satisfaction with plaintiff's progress in drug treatment and the need "to get beyond what we've been dealing with for the past couple of years" as plaintiff "has been proving to [the court], anyway, that she's trying hard and that she's doing what she has to do." Notwithstanding that progress, the judge found plaintiff's request for joint legal custody premature, stating "[w]e're too new in the game here."
In response to defendant's objection that allowing plaintiff three weeks of unsupervised overnight visitation during the summer was too much too quick, the judge noted plaintiff would have had several months of unsupervised weekend overnights by the time that provision went into effect. The experience that interval would provide would allow defendant to bring to the court's attention any problem suggesting extended time with plaintiff would not be in the child's best interest.
Addressing plaintiff's request to expand her weekly overnights, the judge determined that allowing plaintiff a Monday overnight following defendant's weekends would add only two overnights a month but will allow plaintiff an opportunity every other week to take the child to school and see her teacher. The judge reasoned that delaying implementation of that provision would allow plaintiff another year "to prove herself and maintain the status quo."
The judge granted plaintiff's request to change the child's name to add plaintiff's last name as an additional middle name to allow the child to carry plaintiff's family name without supplanting or hyphenating her surname, which defendant changed to his own upon being granted sole legal custody. Finally, the judge denied defendant's request for a stay pending appeal, finding defendant
hasn't been able to prove to me that [plaintiff] had any problems on the methadone maintenance and that the child has been returned dirty, unfit, unkempt, that she's out of it when she comes back to pick up the child. In fact, [defendant] wants [plaintiff] to do all the driving, not even grandmom and aunt involved, wants her to do all the driving, which tells me that he must feel pretty confident to allow this lady to get behind the wheel and drive his child[.]
Defendant appeals arguing the trial court should not have expanded plaintiff's overnight parenting time or changed the child's name without a plenary hearing. Our review of the record convinces us that his arguments are not of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E).
Judge Famular has been carefully overseeing this matter for three of the four years of this child's life. Both parents are former substance abusers and each remains suspicious and critical of the other's continued sobriety. Defendant continues to harp on a drug test administered to plaintiff during the abuse and neglect proceeding (for which he has never produced any competent interpretation) while ignoring all of plaintiff's subsequent clean screens. Although advising the court on numerous occasions that he did not object to plaintiff's unsupervised overnights but only to the holiday schedule, defendant persists in challenging orders allowing plaintiff unsupervised overnights.
He also complains that the court changed the child's name without a plenary hearing while failing to acknowledge that the court only restored to the child two names included on her original birth certificate, which he changed without notice to plaintiff or securing court approval. The order plaintiff secured only allows the child's original middle name and plaintiff's surname to be added as middle names to the birth certificate. Plaintiff has acquiesced in defendant changing the child's surname to his own, although done without her knowledge or consent.
Judge Famular carefully explained her reasons for each item of relief she either granted or denied. She has pursued a deliberate and incremental approach of moving plaintiff from very limited supervised visitation to fuller participation in the child's life as plaintiff demonstrated her responsibility, consistent with the child's best interest. Defendant has given us no reason to second-guess the judge's carefully considered approach. See Hand v. Hand, 391 N.J. Super. 102, 111-12 (App. Div. 2007).
We affirm the orders under review substantially for the reasons expressed by Judge Famular in her rulings from the bench on December 16, 2013.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION