Gac v. Gac

• Decision Date: 21 May 2002
• Citation: 796 A.2d 951,351 N.J. Super. 54
• Parties: Gaynell GAC (a/k/a Gaynell Ciccarelli), Plaintiff-Respondent, v. Paul Ludwig GAC, Defendant-Appellant.
• Court: New Jersey Superior Court

796 A.2d 951

351 N.J. Super. 54

Gaynell GAC (a/k/a Gaynell Ciccarelli), Plaintiff-Respondent, v. Paul Ludwig GAC, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Submitted May 8, 2002.

Decided May 21, 2002.

Antholis & Courtney, attorneys for appellant (William J. Courtney, Flemington, of counsel and on the brief).

Sonageri & Fallon, attorneys for respondent (Gerard C. Fallon, Hackensack, on the brief).

Before Judges BAIME, AXELRAD and BILDER.

The opinion of the court was delivered by BAIME, P.J.A.D.

Defendant appeals from a post-divorce judgment order requiring him retroactively to pay fifty percent of his daughter's tuition loans which she incurred while obtaining an undergraduate degree at Quinnipiac College. He argues that the Family Part judge failed to consider and weigh the factors described in Newburgh v. Arrigo, 88 N.J. 529, 443 A.2d 1031 (1982). We reverse the order entered and remand for further proceedings.

I.

The parties were married in 1971. Two children were born of the marriage, Justin and Alyssa. Justin was eight and Alyssa was five when the parties separated in 1983. The parties were divorced in 1987. While the judgment required defendant to pay $225 per month in child support, it was silent concerning the obligations of the parties toward the college expenses of the children.

It is undisputed that the marriage was a stormy one. During the divorce proceedings, the Family Part ordered Dr. Mathias Hagovsky to perform a psychological evaluation of the family. Plaintiff recounted in her interview with Hagovsky that the marriage was punctuated by defendant's abusive and threatening acts. She asserted that defendant "physically abused her in [the presence] of the children." This allegation was corroborated by Justin who told Hagovsky that he "had seen violence and bitter exchanges between his parents." Hagovsky found that Justin was "traumatized" by these experiences, "convinced that his father would not change," and felt "no safety in contact with [defendant]," fearing that defendant "could hurt someone." Alyssa harbored similar feelings toward defendant. While convinced that her mother "want[ed] her to [visit] with [defendant]," she felt "nervous" about that prospect and "despite her best intentions," was unable "to tell her father how she really felt." Defendant admitted to Hagovsky that he "ha[d] a terrible temper in the past which affect[ed] his wife and children." While "frustrated" by his children's negative feelings toward him, defendant conceded that "there was a good deal of rage and face-to-face screaming to which the children were often exposed."

These experiences had a profound effect on the parties and both children. Dr. Hagovsky observed:

Essentially, both children and their mother have allied themselves in a very effective manner against the father to the point where considerable fear and trauma exists even at the possibility of contact between them. At the moment, this fear is real to the children and to Mrs. Gac as well, and is unlikely to be effectively assuaged even with direct, psychotherapeutic intervention.

In effect, these three have divested themselves emotionally from their husband and father to the point where productive contact is literally impossible. As a result, it is the examiner's impression that to force the issue of contact would be counter-productive and perhaps even destructive to the well being of these children. In their view, seeing their father is an unpleasant, even traumatic resurrection of bad experiences and is to be avoided at all costs. Therefore, the examiner recommends to the court and to Mr. Gac that he refrain from demanding visitation time with the children. It would be in their best interests to publicly make such a statement on the record emphasizing that to do so would be accomplished only by virtue of what is in their best interests and not by dint of his own lack of interest in seeing them.

Formal statements of availability at any time should they wish access should be made including an opportunity for him to write or perhaps even call on special occasions; a chance to send occasional gifts to the children should also be made available. Emphasis should be placed on Mr. Gac's development of this "one way" relationship until such times as the children develop their own need to respond to him.

The Family Part followed Hagovsky's recommendation and did not order visitation between defendant and the children. Although defendant sought to develop a relationship with the children, these efforts proved wholly unavailing. Defendant followed the advice of Dr. Hagovsky and pursued the "one way" relationship recommended, but neither Justin nor Alyssa ever responded. To the contrary, at age sixteen Alyssa made it clear that she did not consider defendant to be her father and she did not want to see him. She reiterated that sentiment at age twenty-two. Even when she attended the funeral of defendant's mother, Alyssa did not utter a word to him. She also stated that she did not "feel comfortable" receiving letters from defendant.

During the period between 1987 and 1994 defendant sent postcards, packages, holiday cards, and monthly or bi-weekly letters to the children. He did not telephone the children, because he was told that they did not want to speak with him. With the exception of returning the written cards and letters to defendant with a note, which read: "we don't want to hear from you. We don't want anything to do with you," Alyssa did not respond to her father's communications. These communications stopped in 1994 when Alyssa moved with her maternal grandparents and plaintiff to Vermont. Plaintiff did not provide defendant with her telephone number or address when she moved with the children.

In 1994, when Justin was nineteen and Alyssa was sixteen, defendant moved to reduce temporarily his child support payments, because he was unemployed and his unemployment benefits were about to expire. He also sought to establish family mediation, and to require plaintiff to send monthly reports and photographs of the children. At that time, Alyssa sent a letter to the court stating:

I was told about the situation concerning [defendant]. I would like to say a few things to you to impress my feelings about having you set up visitation with my father. I do not feel, under any circumstances that I should be forced to visit [him]. I use the word "forced" because visiting [defendant] would be against my wishes. He has never been a father to me, and for him to say he wants to start now is not only pitiful, but insulting. The only father figure in my life is my grandfather he gives me more love and support, and is more of a father to me than [defendant]. I hope you understand what I am saying and how I feel.

On August 5, 1994, the Family Part judge denied, without prejudice, defendant's motion for family mediation. The judge granted defendant's request for monthly reports, which were to begin on September 1, 1994. Additionally, the judge reserved decision on defendant's motion to reduce child support until documents were received and the court could conduct a Lepis¹ hearing. The court did not conduct that hearing because defendant subsequently obtained employment.

Defendant continued to make the $225 monthly child support payments until May 2000. On July 11, 2000, after Alyssa graduated college, defendant filed a motion to terminate his child support obligations for both children. At that time, Justin was twenty-five years old and Alyssa was twenty-two years old. Plaintiff opposed that motion and cross-moved for reimbursement of Alyssa's college tuition.² The record does not reveal whether the court heard arguments on that motion.

On August 25, 2000, the Family Part entered an order terminating defendant's child support obligations as of July 11, 2000. The judge also ordered that defendant pay fifty percent of the loans Alyssa incurred pursuing her undergraduate degree. The order required plaintiff to provide proof of Alyssa's loans, excluding those from family members. The record does not reveal whether a statement of reasons accompanied that order. Nor does the order state whether the judge placed his reasons on the record.

Thereafter, plaintiff submitted a statement to the Family Part indicating the principal amount of Alyssa's non-family member student loans as $62,818 with interest of $7912. On October 2, 2000, the judge entered an order requiring defendant to pay $35,000 of Alyssa's student loans. The judge also ordered the matter stayed while the parties pursued further discovery. The preprinted language of the order states that the court conducted a hearing, but the record does not indicate whether the parties actually appeared. Also, neither the record nor the order reveals whether a statement of reasons accompanied the October 5, 2000 order. To the contrary, the record discloses that hearings were conducted on December 21, 2000 and May 2, 2001, after the court entered the order requiring defendant to reimburse his estranged daughter for her college tuition.

Much of the hearings that were ultimately conducted were devoted to defendant's claim that he has been totally rejected by both Justin and Alyssa. That fact is not in dispute. Alyssa explained that she wanted nothing to do with defendant. She testified that her "earliest memories [were] of [her] father and mother fighting." She recalled a great deal of "violence." Alyssa recounted that Justin was "very protective of [her] and [would] take [her] to places in the house where [she] could not see or hear the fighting." Alyssa vividly remembered her "father pulling [her] mother's hair and screaming [at her]." She "observed" several incidents in which her mother was "screaming in pain."

At the hearing, defendant testified as to his social and financial status. Defendant remarried in 1989. A daughter was born, who was six years old at the time of the hearings. D...