MELANIE TAFARO, n/k/a MELANIE MILLER v. STEPHEN TAFARO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1189-05T11189-05T1

MELANIE TAFARO, n/k/a

MELANIE MILLER,

Plaintiff-Respondent,

v.

STEPHEN TAFARO,

Defendant-Appellant.

 

Submitted: June 5, 2006 - Decided August 16, 2006

Before Judges A. A. Rodr guez and Fall.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket Number FM-109-190-02.

Jeffrey L. Weinstein, attorney for appellant.

No brief was filed by respondent.

PER CURIAM

In this post-judgment matrimonial matter, defendant Stephen Tafaro appeals from an order entered in the Family Part on September 16, 2005, requiring him to pay plaintiff Melanie Tafaro, now known as Melanie Miller, $921.10 for the costs of the parent coordinator and $598.85 for the costs of the children's counseling; denying his request for a $246 credit toward his child support payments; denying his request to relieve Dr. Campagna as the parent coordinator; and denying, without prejudice, defendant's request to vacate certain provisions of an amended domestic violence final restraining order that had been entered on July 14, 2005. The following factual and procedural history is relevant to our consideration of the issues presented on appeal.

The parties were married on April 25, 1987, and were divorced on June 1, 2004. They have two children together: Andrew, born on May 13, 1989; and Emily, born on October 27, 1990. Plaintiff had also filed a domestic violence complaint against defendant under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, docket number FV-10-212-01, in which a final restraining order (FRO) was issued against defendant on March 22, 2001, and remains in effect.

The final judgment of divorce incorporates the parties' property settlement agreement. The parties agreed to share joint legal custody of the children, with "some aspects of the joint custodial arrangement" to be resolved by a third-party parenting coordinator. Pursuant to their agreement, if the parties were unable to reach an agreement on parenting time issues, the parent coordinator was "empowered to submit recommendations to the court[.]" If either party could not agree to those recommendations, that party may apply to the court by motion, "and the court will then resolve the issue, considering but not being bound by the coordinator's recommendations."

The parties agreed not to use the child support guidelines in determining support, and defendant agreed to pay plaintiff child support in the amount of $485 per week based on his average annual gross income of $264,784, and plaintiff's annual gross income of $63,856. Pursuant to their agreement, defendant was to pay 71% of the uninsured medical expenses of the children, with plaintiff paying 29%. They agreed that

[u]ninsured medical expense shall be interpreted broadly to include preventive, diagnostic, and therapeutic medicine, inpatient and outpatient surgery, prescription drug, eyeglass or contact lenses, physical therapy, psychological or psychiatric or substance abuse treatment, and any other health-related care. . . .

[Emphasis added.]

Defendant also agreed to pay plaintiff the sum of $485 in limited duration alimony for a period of seven years.

On August 9, 2004, an order was entered appointing John W. Thatcher, Esq. as the parent coordinator in this matter, with the parties to equally share his fees. Unfortunately, the parties encountered significant difficulties concerning parenting-time issues, resulting in issuance of an order to show cause on October 5, 2004, suspending defendant's parenting time with the children after the trial court received a letter from the parent coordinator outlining the problems he had encountered in dealing with defendant. After conducting a hearing November 3, 2004, concerning the issues presented by the order to show cause, the Family Part issued an order on November 4, 2004, curtailing and limiting defendant's parenting time, and providing for a therapeutic approach in reestablishing defendant's relationship with the children.

Upon application by defendant to modify the November 4, 2004 order, the Family Part entered an order on March 16, 2005, denying his motion. However, the motion judge replaced Mr. Thatcher as parent coordinator with Dr. William Campagna, a psychologist. The March 16 order also denied defendant's request for a credit against his child support obligation; directed plaintiff to arrange for immediate and ongoing weekly psychological counseling for the children; and ordered defendant to reimburse plaintiff $312.15 based on her overpayment of the bill of the parent coordinator.

In a recent unpublished opinion, we affirmed the March 16, 2005 order. Tafaro v. Tafaro, A-4402-04T1 (App. Div. July 13, 2006).

Following the court's entry of the March 16, 2005 order, plaintiff filed a motion seeking enforcement of various monetary provisions contained in prior orders entered by the court. On July 13, 2005, the court entered an order that provided, as follows:

1. The court previously ordered the defendant to work with the new court-appointed parent coordinator, Dr. William Campagna, Ph.D., following the request by the previous parent coordinator to be relieved. Dr. Campagna has been given full authority to work with all members of the family which includes his authority to facilitate reintegration of the family and re-institute parenting to the degree possible. Pending a reintegration through the services of the parent coordinator, parenting time is to remain as the initiation of the children as previously ordered. As it appears that the defendant currently refuses the services of the parent coordinator, parenting shall remain at the status quo. The parent coordinator remains available and any changes to the court's previous Orders as to parenting will only follow from the court upon the recommendations of the parent coordinator.

2. The defendant has refused to pay plaintiff the sum of $921.10, representing the defendant's unpaid cost-share of unreimbursed medical expenses and his unpaid cost-share from the previous parent coordinator. Judgment is hereby entered against the defendant and in favor of the plaintiff in the amount of $921.10.

3. The defendant has failed to comply with this court's Order as to medical and psychological counseling. The court finds that the withdrawal of yet another therapist is harmful to the children. Therefore the plaintiff's Restraining Order will be amended to add the children's therapist, Ruth Altamura Roll, LPC, or any other therapist that the plaintiff chooses, within its ambit. A revised Restraining Order to that effect will issue under Docket number FV-10-212-01.

[4.] All requested relief not granted is hereby deemed denied without prejudice.

[5.] All previous orders will continue in full force and effect except to the extent modified by this Order.

In accordance with the July 13, 2005 order, an amended FRO was entered in the domestic violence action on July 14, 2005, continuing the restraints against defendant; adding a restraint against defendant from contacting the children's therapist; conforming the custodial and parenting time provisions to those entered in the post-judgment matrimonial action; and specifically permitting the parties to have written contact with each other by facsimile transmission, as well as contact during mediation.

By letter to plaintiff dated August 18, 2005, defendant informed her that he did not consider the children's counseling with therapist Ruth Altamura Roll, LPC, to be a covered medical expense and declined to pay his share of her bill. He contended that Ms. Roll was not a healthcare provider, and that the children "have not been diagnosed with any specific mental illness that requires treatment."

On or about August 22, 2005, defendant filed a motion in the Family Part, seeking an order removing Dr. Campagna as the parent coordinator; vacating the judgment against him of $921.10 as contained in the July 13, 2005 order; crediting his child support account in the amount of $246, representing counseling expenses that were not his responsibility to pay; and revision of the amended FRO to eliminate the restraints preventing him from contacting Ms. Roll.

In his moving certification, defendant argued that "[s]ince the terms for the use of a Parent Coordinator were carried out to their fullest meaning, there is no legal reason to assign another Parent Coordinator at this time." Defendant also contended that he should not be responsible for payment of unreimbursed healthcare expenses of the children until plaintiff consults with him concerning their medical and healthcare issues. Defendant further objected to the counseling bills of Ms. Roll, contending these are not medical bills; that Ms. Roll is not a physician nor is she providing medical care to the children; and that there is no documentation from a mental health specialist stating the children suffer from mental illness. Defendant sought a credit against his child support obligation of $246.05, representing amounts he paid for Ms. Roll's services.

Defendant also disputed that he owed Mr. Thatcher any sums, stating that the Family Part had no jurisdiction to require that amount to be paid, because the issue of such payment was a matter that should be resolved in small claims court.

Defendant further claimed that the placement of Ms. Roll on the domestic violence amended FRO was unwarranted in the absence of expert testimony, and was illegal because the restraining order was designed to protect plaintiff, not the children. He also asserted that the placement of Ms. Roll as a protected person on the restraining order violated his joint custodial rights to consult with persons regarding the children's health, education and welfare.

In reply, plaintiff filed a cross-motion, seeking enforcement of prior court orders concerning payment of unreimbursed counseling and medical expenses for the children. In her supporting certification, plaintiff noted that the March 16, 2005 order specifically required her to arrange for psychological counseling for the children regardless of insurance coverage, which counseling was not to be terminated except by order of the court. Plaintiff stated that the children had been undergoing counseling with Ms. Roll since March 21, 2005, "except for a brief period when Ms. Roll terminated counseling due to defendant's constant harassment of her." Plaintiff certified that after providing defendant with counseling bills from Ms. Roll, with his 71% portion amounting to $1,153.50, defendant refused to pay, informing her this was an "educational expense" for which he was not obligated. Plaintiff sought an order requiring defendant to pay $1,581.20, representing his 71% share.

Additional papers were filed by each party in support of their respective positions. The motions were argued in the Family Part on September 16, 2005. During his argument, defendant also accused the motion judge of being biased and prejudiced against him. On September 16, 2005, the motion judge issued an order, supported by a statement of reasons, that provided, as follows:

1. Defendant is in violation of this Court's Order of July 16, 2005 for failing to pay $921.10 to Plaintiff; Judgment having been previously entered in this amount. Plaintiff may execute on this Judgment;

2. Defendant shall pay Plaintiff $598.85 no later than September 30, 2005 for the medical expense of the minor children's counseling. If Defendant fails to pay this sum, Judgment will be entered for $598.85 on submission of Certification by Plaintiff;

3. Defendant's request to apply a $246.00 credit toward his child support payments is denied;

4. Defendant's request to relieve Dr. Campagna as parent coordinator is denied;

5. Defendant's request to amend the restraining order is denied without prejudice;

6. All requested relief not granted is hereby deemed denied without prejudice.

7. All previous orders will continue in full force and effect except to the extent modified by this Order.

In his statement of reasons, the motion judge found that defendant had failed to comply with the terms of the July 13, 2005 order concerning payment of his share of the costs of the parent coordinator. Noting that a judgment had been previously entered in plaintiff's favor against defendant for that amount, the judge permitted plaintiff to execute on that judgment. The judge also found that the final judgment required defendant to pay 71% of the counseling expenses of the children, that his share thereof was $844.90, and that he had paid $246.50 toward that amount, leaving a balance due and owing of $589.90. The judge also concluded defendant had submitted insufficient evidence to establish a basis for a credit toward his child support.

On appeal, defendant presents the following arguments for our consideration:

POINT I

THE TRIAL JUDGE IMPROPERLY ORDERED DEFENDANT TO PAY THE COUNSELING EXPENSES FOR THE CHILDREN'S THERAPIST BECAUSE SHE IS NOT A PSYCHOLOGIST, THE CHILDREN HAD NO MEDICAL DIAGNOSIS, THEREBY NOT QUALIFYING AS A MEDICAL EXPENSE UNDER THE PROPERTY SETTLEMENT AGREEMENT, AND PLAINTIFF HAS VIOLATED DEFENDANT'S JOINT CUSTODY RIGHTS.

POINT II

THE TRIAL JUDGE HAD NO JURISDICTION TO AMEND THE RESTRAINING ORDER TO INCLUDE THE CHILDREN'S THERAPIST AND FUTURE THERAPISTS.

POINT III

THE PARENT COORDINATOR SHOULD BE RELIEVED AND DEFENDANT SHOULD NOT BE REQUIRED TO PAY FOR SUCH SERVICES.

POINT IV

UPON REMAND, THE MATTER SHOULD BE ASSIGNED TO A DIFFERENT JUDGE.

After analyzing the record in the light of the written and oral arguments advanced by the parties, we conclude that the issues presented by defendant are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). We find no misapplication of discretion by the motion judge in reaching the conclusions embodied in the September 16, 2005 order.

Defendant's contention that he should not be responsible for his 71% share of the counseling expenses of the children because Ms. Roll is not a psychologist or physician, and because there has been no medical diagnosis, is disingenuous. Viewing the protracted and acrimonious nature of the ongoing litigation between these parties, as focused on the children and their relationship with their parents, it would be myopic to conclude that these children have not been subjected to significant stress, trauma, and turmoil that warranted professional intervention. Moreover, paragraph 10 of the parties' property settlement agreement specifically provides that the terminology "uninsured medical expenses" is to be "interpreted broadly" to include not only psychological or psychiatric treatment, but "any other healthy related care." Certainly, the services of Ms. Roll, as found by the judge, fall within this broad definition of unreimbursed expenses of the children.

We further note defendant's assertion that Ms. Roll does not perform her duties under the supervision of a psychologist is inaccurate. Ms. Roll is a licensed, certified social worker. The billing statements issued by Ms. Roll, as contained in the record on appeal, clearly reflect that Ms. Roll's supervising psychologist is Dr. Virginia Klein, a licensed psychologist. Those billing statements also reflect that the children have, in fact, been diagnosed as suffering from a Dysthymic Disorder, which, according to the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), constitutes chronic depression. See http://psychcentral.com/disorders/dsmcodes.htm.

We also find no misapplication of discretion by the motion judge in amending the domestic violence FRO to encompass Ms. Roll or any other therapist of the children within its protection. The record on appeal amply demonstrates that defendant's repeated contacts with the children's therapists have resulted in those therapists withdrawing from providing services to the children. In fact, until the amended FRO was entered, Ms. Roll had stopped providing counseling services to the children due to the nature of defendant's contacts with her.

Defendant's contention that the domestic violence restraining order was intended to protect only plaintiff, not the children, is simply incorrect. N.J.S.A. 2C:25-29b(3) specifically permits the court to enter such order as is necessary to "protect the safety and well-being of the plaintiff and minor children[.]" (Emphasis added). Defendant's argument that the court lacked jurisdiction to amend the domestic violence order to prohibit defendant from contacting the therapist because the therapist does not fall within the definition of "victim" contained in N.J.S.A. 2C:25-19d, misses the point. The prohibition against contacting the therapist was designed to protect the children.

We also conclude that the judge did not misapply his discretion in denying defendant's application to remove the parent coordinator. The parties had agreed to the appointment of a parent coordinator. As we have noted, a domestic violence order had also been entered against defendant, which limited the ability of the parties to effectively communicate on issues concerning the children, thereby heightening the need for an intermediary. Moreover, our review of the record discloses that by its various orders issued over the last almost two years, the Family Part has been attempting to establish a therapeutic and professional approach to the parent-children relationships that focuses on the best interests of the children through the appointment of a parent coordinator, and by providing for counseling. Unfortunately, defendant has misinterpreted this approach as an attack on his parental rights. We urge him to focus on the best interests of the children by working together with the parenting coordinator, other professionals, and the plaintiff toward the reestablishment of a healthy and wholesome relationship with his children.

Finally, we find no basis in this record that would support defendant's contention that the motion judge should be disqualified from this matter.

Affirmed.

 

We note this provision appears to violate the prohibition contained in N.J.S.A. 2C:25-29a that where a FRO has been entered, "no party shall be ordered to participate in mediation on the issue of custody or parenting time."

In DSM-IV nomenclature, a diagnosis of 300.4, which appears in the billing statements, is a Dysthymic Disorder.

(continued)

(continued)

15

A-1189-05T1

 

August 16, 2006