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Vitale v. Barone

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Dec 21, 2016
DOCKET NO. A-0988-15T2 (App. Div. Dec. 21, 2016)

Opinion

DOCKET NO. A-0988-15T2

12-21-2016

JAMES VITALE, Plaintiff-Respondent, v. TRACY BARONE, Defendant-Appellant.

DeNoia, Tambasco & Germann, attorneys for appellant (G. John Germann, on the brief). Williams Law Group, L.L.C., attorneys for respondent (Allison C. Williams, of counsel and on the brief; Victoria D. Miranda, on the brief).


RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Yannotti and Fasciale. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FD-15-0768-13. DeNoia, Tambasco & Germann, attorneys for appellant (G. John Germann, on the brief). Williams Law Group, L.L.C., attorneys for respondent (Allison C. Williams, of counsel and on the brief; Victoria D. Miranda, on the brief). PER CURIAM

Defendant appeals from a September 17, 2015 order denying her motion seeking resumption of joint legal custody of her three children. She also appeals from an October 21, 2015 order denying her request for a plenary hearing. We reverse without prejudice the order denying resumption of joint legal custody, remand, and direct the judge to conduct a plenary hearing.

The children were born in 2003, 2006, and 2010. The September 17, 2015 order also provided other relief. --------

In February 2013, the parties entered into a consent order agreeing to joint legal and shared residential custody of the children. In January 2014, the judge granted sole legal and physical custody of the children to plaintiff. The court did so because the youngest daughter had alleged her maternal grandmother had sexually abused her.

In March 2014, the judge allowed defendant liberal telephone contact with the children, and court-supervised parenting time. In November 2014, the judge granted defendant supervised visitation on weekends. In January 2015, the court suspended defendant's supervised visitation on weekends and ordered reunification therapy between the children and their therapist.

In July 2015, the judge temporarily suspended the reunification therapy based on testimony from the children's therapist. The judge ordered that the children undergo independent therapy, and indicated that reunification therapy would resume when the children were more prepared for the process of reunification. Thus, after the temporary suspension of reunification therapy, there was no final determination on defendant's request to resume joint legal custody. Such a determination was in part subject to the children undergoing individual therapy sessions.

In October 2015, the judge denied defendant's request for a plenary hearing. She concluded that defendant failed to demonstrate a prima facie case warranting a plenary hearing for reinstatement of joint legal custody. The judge stated that defendant repeatedly "failed to establish a change in circumstances or that it is in the best interest of the children for this [c]ourt to award her custody[.]"

On appeal, defendant argues the judge erred by failing to conduct a plenary hearing. She maintains that such a hearing was necessary to resolve the outstanding custody issues, including her request to remove the therapist. In defendant's view, the court did not enter a final custody order because the judge temporarily ordered the commencement of individual therapy sessions before reunification therapy could be resumed. And by declining to conduct the hearing, defendant contends the court deprived her of the opportunity to prove she was entitled to a resumption of joint legal custody.

The parties do not dispute the correctness of the temporary change of the original custody arrangement. Whether to continue modification of the parties' original custody consent order, however, is dependent on further findings of fact and conclusions of law. Such additional findings and conclusions would include, at a minimum, consideration of the benefits of the individual and reunification therapy.

Although the judge found that defendant has not shown a change of circumstances warranting a plenary hearing, such a prima facie proffer was premature to alter what was supposed to be a temporary custody arrangement. On this record, it is clear that the parties disagree factually on whether the children would benefit from continued therapy, and what impact such counseling would have on whether to resume joint legal custody. On remand and given the nature of the parties' disputed factual contentions regarding the best interests of the children, we direct the judge to conduct the hearing and make all appropriate findings of fact and conclusions of law as to resumption of joint legal custody related issues. We leave the details of the plenary proceeding and related issues to the discretion of the judge.

Finally, we reject defendant's assertion that the court erred by failing to remove the therapist from all involvement in this case. Defendant argues that the therapist is partial to plaintiff and should be excluded from further involvement because he failed to consult with her. Defendant may challenge the therapist's purported impartiality on remand.

Reversed and remanded for further proceedings consistent with this opinion. There is sufficient evidence in the record to maintain the status quo pending the plenary hearing. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION


Summaries of

Vitale v. Barone

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Dec 21, 2016
DOCKET NO. A-0988-15T2 (App. Div. Dec. 21, 2016)
Case details for

Vitale v. Barone

Case Details

Full title:JAMES VITALE, Plaintiff-Respondent, v. TRACY BARONE, Defendant-Appellant.

Court:SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Dec 21, 2016

Citations

DOCKET NO. A-0988-15T2 (App. Div. Dec. 21, 2016)