Mishlen v. Mishlen
| Decision Date | 05 December 1997 |
| Citation | 305 N.J.Super. 643,702 A.2d 1384 |
| Parties | Robert MISHLEN, Plaintiff-Respondent, v. Kathleen MISHLEN, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Elliot H. Gourvitz, Springfield, for appellant.
Gary E. Fox, Ocean, for respondent.
Before Judges STERN, KLEINER and KIMMELMAN.
The opinion of the court was delivered by
STERN, J.A.D.
Defendant Kathleen Mishlen appeals from portions of a "Dual Judgment of Divorce," entered on December 10, 1996 following a six-day trial, which (1) awarded her $332 per week in child support for the parties' two children, (2) provided her with six months of rehabilitative alimony in the amount of $125 per week, (3) required that she "not expose the two minor children of the marriage to William Baldridge at any time or place, consistent with a Pendente Lite Consent Retraining Order" and (4) required that each party "pay their own respective counsel fees." The pendente lite consent order of October 18, 1993 has not been included in the record, but it is undisputed that it provided that the Mishlen children "shall not be in the presence of Mr. Baldridge at any time." Although in her trial testimony she disavowed any plan to marry Baldridge, in her brief on this appeal defendant asserts that Baldridge is her "paramour and the individual she intends to marry."
Defendant argues:
POINT I THE COURT FAILED TO MAKE CONCLUSIONS OF LAW IN REGARD TO RESTRAINING THE APPELLANT FROM EXPOSING THE CHILDREN FROM MR. BALDRIDGE.
POINT II THE COURT'S DECISION TO FORBID THE APPELLANT FROM EXPOSING THE CHILDREN TO MR. BALDRIDGE IS UNCONSTITUTIONAL AS IT IMPINGES UPON APPELLANT'S RIGHT TO MARRY MR. BALDRIDGE.
POINT III THE COURT'S USE OF ITS "PARENS PATRIAE" RESPONSIBILITY IN THE WITHIN MATTER IS MISPLACED AND CONSTITUTES REVERSIBLE ERROR.
POINT IV WHAT THE RESPONDENT DID, IN ACTUALITY WAS RESTRAIN MR. BALDRIDGE FROM BEING IN THE PRESENCE OF THE TWO MINOR CHILDREN, AND THIS CONSTITUTES REVERSIBLE ERROR.
POINT V THE RESPONDENT DID NOT PROVE, AND DID NOT EVEN ALLEGE, THAT MR. BALDRIDGE HAD IN ANY WAY BEEN A DANGER TO THE TWO MINOR CHILDREN.
POINT VI THE COURT ERRED BY NOT IMPOSING A LESS SEVERE RESTRICTION UPON THE APPELLANT THAN RESTRAINTS AGAINST HER FROM EXPOSING THE CHILDREN TO MR. BALDRIDGE IN ANY MANNER.
POINT VII THE COURT ERRED IN REGARD TO BOTH THE AMOUNT OF AND THE DURATION OF REHABILITATIVE ALIMONY.
POINT VIII THE COURT ABUSED ITS DISCRETION IN NOT AWARDING COUNSEL FEES TO THE APPELLANT.
Our careful review of the record leads us to conclude that these contentions are without merit and require only the following discussion. R. 2:11-3(e)(1)(A)(E).
The trial testimony revealed instances of abusive conduct by Baldridge against the children of two of his prior wives, and there is sufficient evidence in the record to support the trial judge's finding that the Mishlen children "would be in danger with Mr. Baldridge." See Rova Farms Resort Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84, 323 A.2d 495 (1974). Defendant's contention that there was no proof that Baldridge "acted in an inappropriate way to the two children of [the Mishlen] marriage" is irrelevant to the ultimate issue of their safety, as there was proof of a pattern of abuse of children with whom he previously lived. Moreover, the children need not become a member of Baldridge's household or become "victim[s] of domestic violence" so that a domestic violence restraining order can be obtained. See N.J.S.A. 2C:25-19(d). A restraining order can be obtained as part of the matrimonial proceedings relating to the custody of the children. Cf. N.B. v. T.B., 297 N.J.Super. 35, 42, 687 A.2d 766 (App.Div.1997) (). As the Supreme Court recently said in Kinsella v. Kinsella, 150 N.J. 276, 317-18, 696 A.2d 556 (1997):
Of course, the primary and overarching consideration [in making a custody decision] is the best interest of the child. See Fantony, supra, 21 N.J. at 536 ("Our law in a cause involving the custody of a child is that the paramount consideration is the safety, happiness, physical, mental and moral welfare of a child"). The best-interest analysis is an additional requirement "superimposed upon an analysis of the statutory scheme." Moreover, that analysis requires the court to consider any and all material evidence....
The "best-interest-of-the-child" standard is more than a statement of the primary criterion for decision or the factors to be considered; it is an expression of the court's special responsibility to safeguard the interests of the child at the center of a custody dispute because the child cannot be presumed to be protected by the adversarial process.
[Id. at 317-18, 696 A.2d 556 (internal citations omitted).]
Defendant argues that by restraining her from exposing the children to Mr. Baldridge, the Family Part judge essentially infringed upon her constitutional right to marry Mr. Baldridge. While defendant testified at the trial that she had no present "plans to marry Mr. Baldridge" at the time, we address the issue in light of her testimony that she wanted to "establish a normal relationship" with Baldridge and her children together, and then decide about her future with Baldridge in that context.
In Zablocki v. Redhail, 434 U.S. 374, 383, 98 S.Ct. 673, 679, 54 L.Ed.2d 618, 628 (1978), the United States Supreme Court declared that "the right to marry is of fundamental importance," giving rise to the right of privacy protected by the Fourteenth Amendment's Due Process clause. See also, e.g., Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). The Zablocki decision concerned a Wisconsin statute which required court approval of a marriage by a parent with a prior support obligation. The Court concluded that the statute was unconstitutional because it "unnecessarily impinge[d] on the right to marry" and "significantly interfere[d] with the exercise of a fundamental right" without being "closely tailored to effectuate" the legitimate state interests of counselling the parent of "the necessity of fulfilling his prior support obligations" and of protecting "the welfare of the out-of-custody children." Id. at 388, 98 S.Ct. at 682, 54 L.Ed.2d at 631-32. Significantly, the Court found that the Wisconsin statute "interfer[ed] directly and substantially with the right to marry." Id. at 387, 98 S.Ct. at 681, 54 L.Ed.2d at 631; id. at 391, 98 S.Ct. at 683, 54 L.Ed.2d at 634 (Burger, C.J., concurring) () 1
Neither Zablocki nor any case brought to our attention suggests that a parent could not be required to make an election between (1) being the principal custodial parent with restrictions related to the custody, (2) marrying a spouse of choice and living with him or her away from the children, or (3) marrying and living part-time with each. . Here, the order does not "directly" interfere with defendant's right to marry. Defendant is free to marry anyone she chooses, including Baldridge.
Our courts have recognized that the "best interests" of the children can be made paramount to other fundamental rights. See Holder v. Polanski, 111 N.J. 344, 350-51, 544 A.2d 852 (1988) (). See, generally, Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (); 2 see also Rinier v. State, 273 N.J.Super. 135, 142, 641 A.2d 276 (App.Div.), certif. denied, 138 N.J. 269, 649 A.2d 1288 (1994), cert. denied, 514 U.S. 1016, 115 S.Ct. 1358, 131 L.Ed.2d 216 (1995) ().
We add that because defendant had no "plans to marry Mr. Baldridge" at the time of trial, the effect of the judgment provision prohibiting defendant from having contact with Baldridge in the presence of her children can again be analyzed should her plans change. Post-trial developments, such as whether Baldridge elected to undergo counselling or a parenting skills course, may have impact on the proper restrictions or limitations ordered with respect to custody at that time. 3...
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