NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1476-05T1

ELISA MARIA GONZALEZ,

Plaintiff-Respondent,

v.

JOHN R. SHEARING,

Defendant-Appellant.

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Submitted September 24, 2007 Decided

Before Judges Graves and Alvarez

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Union

County, Docket Nos. FM-20-01613-01 and FV-

20-002134-1E.

John R. Shearing, appellant pro se.

Nemergut & Duff, attorneys for respondent

(Howard Duff, on the brief).

PER CURIAM

Defendant John R. Shearing, pro se, appeals from a divorce

judgment which comprehensively addressed parenting issues,

equitable distribution, alimony and child support. He raises

the following points:

November 7, 2007

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POINT I

THE PLAINTIFF HAS UNCLEAN HANDS.

POINT II

THE PLAINTIFF'S MARRIAGE TO ME IS NULL AND

VOID BECAUSE SHE WAS KNOWINGLY MARRIED TO

ANOTHER MAN WHEN SHE TOOK HER VOWS WITH ME.

SHE IS THEREFORE NOT ENTITLED TO THE

BENEFITS OF DIVORCE.

POINT III

THE TRIAL COURT ERRED BY HINDERING

EXPLORATION OF FACTS THAT WENT TO THE

ESSENCE OF THE CONFLICTING CLAIMS BEFORE THE

COURT.

POINT IV

THE TRIAL COURT ERRED BY ALLOWING THE

PLAINTIFF TO GIVE FALSE AND EVASIVE

TESTIMONY WITHOUT DRAWING A NEGATIVE

INFERENCE AGAINST THE PLAINTIFF.

POINT V

MY CHILD WAS EXPLOITED DURING THE TRIAL, HIS

NEEDS WERE IGNORED, AND THE JUDGE

MISREPRESENTED WHAT MY CHILD SAID.

We affirm, for the reasons expressed by Judge Brock in her

detailed and thorough opinion issued after thirteen days of

trial. "Because of the family courts' special jurisdiction and

expertise in family matters, appellate courts should accord

deference to family court factfinding." Cesare v. Cesare, 154

N.J. 394, 413 (1998). In this case, the family court's findings

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are supported by substantial, credible evidence and the

conclusions drawn therefrom are consistent with controlling

legal principles.

But for the question of the validity of the marriage

itself, and a brief comment as to visitation, we will not

address defendant's contentions. They are without sufficient

merit to warrant extended discussion in a written opinion. R.

2:11-3(e)(1)(E).

The parties began to live together in September 1995 or

1996; they married January 31, 1997. Defendant was anxious to

marry plaintiff, Elisa Gonzalez; he repeatedly proposed. With

the assistance of an attorney, she obtained an annulment in

Guatemala of her 1992 marriage to XXXX XXXXXXXXXX. The

annulment is dated January 1, 1996, and it is undisputed that

plaintiff believes in its legitimacy. It is unclear from the

record when defendant learned of the prior marriage and the

annulment. Plaintiff filed for divorce on April 17, 2001.

While the present matter was pending, defendant charged

plaintiff in municipal court with bigamy. She was acquitted.

When the divorce proceedings commenced, defendant's father was

appointed to act as his guardian ad litem. Defendant's initial

answer, drafted by an attorney and filed on his behalf by the

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guardian ad litem, admits the existence of a valid marriage.

Thereafter, defendant acted pro se.

Plaintiff successfully pursued a personal injury action

against defendant based on domestic violence. On one occasion

"defendant 'forcibly kidnapped' their son, who was four years

old at the time, from plaintiff's custody." Gonzalez v.

Shearing, No. A-6160-04 (App. Div. Feb. 28, 2007) (slip op. at

2). Defendant has a significant psychiatric history and, after

the kidnapping attempt, was institutionalized in at least one

mental hospital. Although the record is somewhat unclear, it

appears defendant was committed for at least three months.

During the divorce trial, Judge Brock interviewed the

parties' eight-year-old son at defendant's urging. The child

said he would like to do his homework every day with his father

and see him every weekend. However, defendant admitted on the

record that he did not call his own expert as a witness because

the expert would have recommended against unsupervised

visitation. Defendant also testified he was living in his van,

and the vehicle was in danger of being repossessed.1 The trial

court awarded custody to plaintiff, and supervised visitation on

alternate weekends and holidays to defendant.

1 Defendant's handwritten certified statement in support of

motion for leave to proceed as an indigent indicates he was

homeless and living "in the woods" when the appeal was filed.

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Defendant believes that his son's wish to see him daily

should be honored. That wish alone, however, does not warrant

modification of Judge Brock's order in light of defendant's past

history and current circumstances. Defendant is not currently

receiving psychiatric treatment and has previously attempted to

abduct his son. In addition, the wishes of a young child are

not determinative of visitation. Wilke v. Culp, 196 N.J. Super.

487, 498 (App. Div. 1984) (citing Palermo v. Palermo, 164 N.J.

Super. 492 (App. Div. 1978); Lavene v. Lavene, 148 N.J. Super.

267, 271 (App. Div.), certif. denied, 75 N.J. 28 (1977)),

certif. denied, 99 N.J. 243 (1985). The conclusions of trial

judges regarding child custody and visitation "are entitled to

great weight and will not be lightly disturbed on appeal."

DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976)

(citing Sheehan v. Sheehan, 51 N.J. Super. 276, 295 (App. Div.),

certif. denied, 28 N.J. 147 (1958)); see also Abouzahr v.

Matera-Abouzahr, 361 N.J. Super. 135, 157 (App. Div.), certif.

denied, 178 N.J. 34 (2003). Judge Brock fashioned a fair and

reasonable visitation schedule which balanced defendant's

difficult circumstances with the loving relationship he enjoys

with his son.

Defendant also contends that his wife was still married to

another when she married him, and that "she is therefore not

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entitled to the benefits of divorce." At trial, defendant

introduced into evidence a photocopy of the annulment written in

Spanish, along with an English translation. The only other

evidence defendant proffered as to the merits of the decree was

his own conclusion that it was merely a complaint for annulment

and not an actual judgment. The plaintiff testified the

document annulled her marriage toXXXXXXXXXX.

The second of two marriages is presumptively valid.

Newburgh v. Arrigo, 88 N.J. 529, 538 (1982). "The presumption

of validity" may be overcome "by clear and convincing evidence

that (1) there was a prior marriage, (2) the prior marriage was

valid, and (3) the prior marriage was not terminated by death or

divorce before the latest marriage." Ibid. As Judge Brock was

aware, plaintiff testified during the bigamy proceeding that

XXXXXXXXXX had divorced her, was remarried and had children.

During the divorce trial, defendant attempted to present

XXXXXXXXXX as a witness, but since he had not supplied the name

in discovery, he was not permitted to call him at that point.

The court indicated he could do so at a later time, but he did

not. Plaintiff indicated she was not sure the papers defendant

presented to the court were the complete set she obtained from

the Guatemalan attorney. Defendant's proofs fell far short of

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the clear and convincing evidence needed to prove the invalidity

of the annulment decree.

Even if defendant had proved that the annulment was legally

insufficient, it would not shield him from his financial

obligations as he is estopped from repudiating the marriage

under the principle of quasi-estoppel. As set forth in Heuer v.

Heuer, 152 N.J. 226, 240 (1998): "a party who did not know of a

spouse's prior marriage and divorce, or one who knew about it

but played no role in obtaining the prior divorce, may

nonetheless be estopped from denying the validity of a current

marriage." The factors to be considered are: "(1) the length

of time parties were married, (2) the acts undertaken by the

parties that indicate they held themselves out as husband and

wife, and (3) the good faith of the party who procured the first

divorce." Id. at 240-41. This marriage was brief, although the

parties lived together before it took place, and may have been

living together when the annulment was obtained. The parties

have a child, jointly purchased a marital home, and in every

respect held themselves out as husband and wife. Defendant does

not dispute that plaintiff at least believed the annulment was

legitimate. Defendant's current position is entirely

inconsistent with his prior indifference to the merits of the

annulment. He wants his marriage declared a nullity for the

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sole purpose of inflicting economic damage upon plaintiff. When

the facts are considered in light of the Heuer analysis, it is

clear he is estopped from challenging the validity of his

marriage to plaintiff.

Therefore, we affirm.