Wilke v. Culp

• Decision Date: 22 October 1984
• Parties: Larry A. WILKE, Plaintiff-Appellant, v. Sharon M. Wilke CULP, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 487

196 N.J.Super. 487

483 A.2d 420

Larry A. WILKE, Plaintiff-Appellant, v. Sharon M. Wilke CULP, Defendant-Respondent.

Superior Court of New Jersey,

Appellate Division.

Argued Oct. 2, 1984.

Decided Oct. 22, 1984.

Stephen C. Carton, Asbury Park, argued the cause for plaintiff-appellant (Carton, Nary, Witt & Arvanitis, Asbury Park, attorneys).

Lawrence D. Kantor, Keyport, argued the cause for defendant-respondent (Kantor, Kantor & Kusic, Keyport, attorneys).

Sidney I. Sawyer, Hazlet, argued the cause on behalf of Todd Wilke (Sawyer, Gale & Doyle, Hazlet, attorneys; Mary Ellen Doyle, Hazlet, on the brief).

Before Judges MICHELS and PETRELLA.

The opinion of the court was delivered by

PETRELLA, J.A.D.

Plaintiff Larry A. Wilke appeals from the denial of his 1983 application for visitation with his son born of his marriage to defendant, Sharon Wilke Culp. He had also sought a mediation process to assist implementation of visitation.

On this appeal plaintiff contends that: (1) the trial court's order denying him visitation was in effect an unconstitutional termination of his parental rights; (2) the judge erred by relying solely on the child's preference not to see him in terminating his right to visitation; (3) the judge failed to make proper independent findings of fact as to the best interests of the child; and (4) the judge erred in failing to hold a plenary hearing which would have given the court a basis to evaluate all the issues concerning his visitation request.

The affidavits submitted in connection with the proceedings below contain certain background facts. During the marriage of the parties, a son, Todd Wilke was born on January 12, 1968. Thereafter, on March 24, 1971 the parties were divorced in the state of Indiana. In that proceeding defendant was given custody of Todd Wilke. Plaintiff was granted certain visitation rights. On July 3, 1971 defendant married her present husband, John F. Culp III. Thereafter the Culps relocated to Fort Lee, New Jersey with Todd Wilke. They now reside in Monmouth County.

According to plaintiff, "in the middle of 1971" he experienced difficulties visiting with his son because defendant and her husband intentionally attempted to thwart his efforts at contacting Todd by phone or by written communication. Plaintiff alleges that during this time period defendant and her husband pursued a "cruel and vicious systematic plan" to keep him out of their lives and Todd's life. Plaintiff asserts that they did so by telling Todd malicious things about him so that Todd would reject him, by punishing Todd physically if he kissed, touched or played with or accepted anything from plaintiff and by telling Todd exaggerated stories of physical abuse by plaintiff against defendant. All of this plaintiff claimed was aimed at brainwashing his son into refusing visits.

Defendant denied that she refused plaintiff visitation, and points to a January 28, 1972 letter from her new husband to plaintiff referring plaintiff to their lawyer as their attempt at cooperation in arranging visitation.

In any event, on plaintiff's application an order was entered in Indiana on October 21, 1971 allowing him visitation rights in New Jersey, as well as periods of temporary custody. Plaintiff Wilke thereafter relocated to Florida where he presently resides.

Because of difficulties plaintiff encountered in enforcing his visitation rights, he instituted suit in New Jersey in the Chancery Division (Matrimonial), in Bergen County late in 1972 and obtained a January 29, 1973 order granting him visitation rights on January 31, February 11 and February 21, 1973. On February 27, 1973 plaintiff obtained an order permitting him supervised visitation each Sunday from 2 to 4 p.m. at the Bergen County Children's Welfare Home, known as the "Conklin Home." A March 5, 1973 affidavit from the then superintendent of the Conklin Home stated that when Mr. Culp began bringing Todd to the Conklin Home pursuant to the court order, problems started with Wilke's visitation with his son. The superintendent noted that prior to this time the child had gotten along very well with his father. The boy was then terrified and expressed great fear at being left at the Conklin Home. When this developed John Culp was made a party defendant and the order further required that defendant bring the child to a court designated psychiatrist for an examination. This was done after some delay. One of the reasons the judge ordered a psychiatric examination in 1973 was because "the child expressed fear of his father."

Three psychiatric examinations were conducted and corresponding reports complied. These reports generally indicated that the boy's fear of his natural father and unwillingness to visit with him had been increasing and that this was largely due to what the defendant and her husband had been telling the child. The reports also substantiate the plaintiff's allegations that his son was repeatedly told by the child's mother that plaintiff had injured her. The report of April 5, 1973, based on an examination conducted when Todd was five years old, stated:

When the examiner asked about Larry Wilke, Todd became uneasy and hesitant but did not appear frightened. He said, 'The other one is Wilke, he is not my daddy. Mommy does not like Wilke because he pushed her against a stove a long time ago. At that time I was a little baby. Mommy told me about it. Wilke dragged us into Court. Mommy is afraid of him because he hurt her when I was a little kid. Mommy said she does not want me to play with Mr. Wilke. He wanted to put me in Conklin Home and make me sleep there. He tried to take me away. He almost took me in his hands and took me out of the door. I didn't see it. My daddy [Culp] told me he does not like Mr. Wilke.'

Plaintiff's affidavit did contain an admission that he had on one occasion pushed defendant up against a stove during an argument and that this occurred in the child's presence. He also admitted slapping defendant on two occasions, conduct which he claims was intended to bring her to her senses in order to awaken her from a drunken state.

In the report of April 15 the psychiatrist concluded that Todd was unwilling to see his father "not because of any direct negative experience with Larry Wilke, but because of his mother's and stepfather's (especially his mother's) fears and comments in reference to Mr. Wilke." The doctor noted the significant impact that a custodial parent can have in coloring the feelings of a young child toward a separated or divorced parent. His opinion was that "if Todd was permitted visits with his natural father, a good relationship would probably be formed between them." He stressed that for this to succeed, antagonistic feelings should not be shown either verbally or by the attitudes of the adults involved.

The second report dated July 25, 1973, showed that Todd feared that Wilke was going to take him away. The psychiatrist recommended counseling to Mr. and Mrs. Culp. The doctor stated: "It is my opinion, that Todd's negative feelings toward his natural father stem almost entirely from his mother and possibly from Mr. Culp." He declined to say whether this was intentional on their part. The doctor's third visit with the child was on March 13, 1974 about one year after the first visit, and apparently at the request of the Culps. At that time the child was six years of age and was exhibiting even more negative feelings towards his father and was more alienated from him than on the prior consultations. Because these negative feelings had worsened, the doctor recommended severing plaintiff's visitation rights and stated in his report to the court:

In my opinion, the present findings and the current situation is such that Todd's best interests would be served if his relationship with Mr. Wilke were severed. I believe that at this stage of Todd's development proposed visits would heighten his negative feelings towards his natural father, would increase his resistance and conflicts and would probably be detrimental to his emotional well being and development.

The court accepted that recommendation and entered an April 1, 1974 order suspending plaintiff's visitation rights until the further order of the court. On February 10, 1975 an amending order terminated his visitation rights. No appeal was taken from either order. However, matters involving custody and visitation are generally not considered to be final. As stated in Borys v. Borys, 76 N.J. 103, 111, 386 A.2d 366 (1978): "Finality has little meaning, however, in the context of child custody adjudication." We consider this principle equally applicable to visitation. On June 24, 1974 an order had been entered requiring the Culps to pay plaintiff's counsel fees of $2,500 and expenses of $200. This was in part because the trial judge "concluded that she [Mrs. Culp] had done all possible to undermine any relationship that could exist between father and son."

In 1977 John Culp made an application to have Todd Wilke's name changed to Culp. ^* Plaintiff objected and that application was denied in Monmouth County where defendant then resided with Todd and three children of her marriage to Culp.

In September 1983 plaintiff filed a motion in the Superior Court, Chancery Division for an order permitting him to visit with his son, and seeking mediation to assist in implementing such visitation. The judge heard oral argument on October 21, 1983 based on the papers filed in connection with the motion and conducted an in camera interview of Todd who was then 15 years old. No testimony was taken of any party and the judge did not order a current probation report or any kind of psychological examination. It was not until January 19, 1984 that the judge in an oral decision denied plaintiff's applications. An order was entered on March 8, 1984 and plaintiff appealed the denial of visitation with his son.

Plaintiff's son Todd will be 17 on January 12,...