ANNE TOMMASO v. JOSEPH TOPOLSKI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2020-05T12020-05T1

ANNE TOMMASO,

Plaintiff-Respondent,

v.

JOSEPH TOPOLSKI,

Defendant-Appellant.

________________________________

 

Submitted August 15, 2006 - Decided August 24, 2006

Before Judges Parrillo and Sabatino.

On appeal from the Superior Court of New Jersey,

Chancery Division, Essex County, Docket No.

FM-07-1093-01.

Joel S. Ziegler, attorney for appellant.

Anne Tommaso, respondent pro se.

PER CURIAM

Defendant, Joseph Topolski, appeals from a December 13, 2005 post-judgment order granting, in part, the cross-motion of plaintiff, Anne Tommaso, to enforce certain provisions of the parties' property settlement agreement (PSA). We affirm.

The parties were married on September 17, 1988 and have three children: K.T., born May 22, 1992; S.T., born September 26, 1993; and M.T., born August 23, 1995. Two of the children have been classified as educationally disabled. Plaintiff filed a divorce complaint on November 8, 2000. A consent order of October 3, 2001 gave the parties joint legal and residential custody, an arrangement that was continued in the parties' PSA executed on June 23, 2005, which was incorporated into their dual judgment of divorce entered that same date.

For purposes here relevant, the parties jointly agreed to refinance the existing mortgage on the former marital residence, which remained the home of plaintiff after the divorce, and memorialized their agreement in the PSA. Specifically, paragraph 32 of the PSA provides:

The parties agree to refinance the existing mortgage(s) on the former marital residence, presently held by Citibank. In connection with said refinance, an additional $50,000[.00] shall be financed, with each party receiving $25,000[.00] of said amount. It is anticipated therefore that the amount of the mortgage after refinancing shall be approximately $150,000[.00]. During the period of the wife's exclusive use and possession of the property, the parties shall be equally responsible for one-half of said mortgage payment. Pending the refinance, the parties shall be equally responsible for the home equity loan of $50,000[.00]. Husband shall reimburse the wife $103.25 representing her payment of the home equity loan in the amount of $206.50 per the court's order of January 31, 2005.

The parties also agreed to use the services of a "parent coordinator" to help mediate disputes over parenting time, and selected a family law attorney, Jamie Von Ellen, as their mutual choice. Paragraph 5 of the PSA embodied their agreement and provides:

The parties shall utilize a parent coordinator. The parent coordinator shall be an independent professional to be selected by the Court; namely Jamie Von Ellen, Esq. Attached as Exhibit A is an article defining the role of the parent coordinator. The parent coordinator shall be authorize[d] to mediate any disputes as to parenting time and shall be authorized to make recommendations as to the parenting time (including modification of the existing parenting plan or any parenting plan thereafter) as well as the parties' and/or children's continued attendance at therapy. The parties agree that any coordinator retained in this matter shall be provided with the evaluations prepared by the parties' respective experts in these divorce proceedings, namely Dr. Matthias Hagovsky and Dr. Judith Grief.

Less than two months after entry of the final judgment of divorce, defendant filed a motion seeking to transfer the parties' children from parochial to public school. Plaintiff cross-moved to enforce various provisions of the PSA including these requiring joint refinancing and utilization of a parent coordinator. According to plaintiff's certification, defendant had deliberately failed to cooperate with the refinancing of the existing mortgage encumbering the former marital residence, resulting in plaintiff being solely responsible for the interim mortgage payments. Plaintiff had also certified that defendant refused to execute the parent coordinator agreement even though the terms of that agreement are those contemplated by the PSA.

After a hearing on these motions, the Family Part judge denied defendant's request to change the educational arrangement and granted in part plaintiff's application to enforce litigant's rights and compel compliance with the PSA. Specifically, the court appointed an attorney to represent both parties in connection with the refinance, and authorized her to execute any documents necessary to complete the transaction in the event that either party refused to do so:

The Court hereby authorizes [the court appointed attorney], by this Order, to sign any documents required for purposes of effectuating and completing the finance of the parties' former marital residence if either party refuses to cooperate with same.

The court also ordered enforcement of the "parent coordinator" provision of the PSA, specifically ruling:

Unless the parties agree otherwise by November 10, 2005, the Court-appointed Parent Coordinator, Jamie Von Ellen, Esq., will proceed and both parties are to take immediate steps as requested and required by Ms. Von Ellen to permit her to begin her work.

The court's rulings were memorialized in an order dated December 13, 2005, the "form and content" of which defendant's counsel consented to.

On appeal from these portions of the court's December 13, 2005 order granting plaintiff relief and enforcing the refinancing and "parent coordinator" provisions of the PSA, defendant raises the following issues:

I. The trial judge abused his discretion in ordering a second refinance within a year.

II. The parental coordinator's prepared agreement is inconsistent with the property settlement agreement as well as the intention of the parties as expressed therein.

IIA. The parental coordinator agreement is overreaching since the parties have not had difficulty with parenting time issues since joint residential custody commenced September 2001.

III. The Judge erred when he failed to consider appellant's reply brief in response to respondent's cross-motion, denying appellant due process and his day in court.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel and plaintiff pro se, and are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) & (E). Suffice it to say, defendant has failed to demonstrate any changed circumstances - much less substantial ones - in the two months since execution of the PSA to justify departure from the clear, unambiguous and counseled provisions thereof. Moreover, as to the refinancing, the transaction has already occurred and we, therefore, consider the issue not only meritless, but moot. As regards the parental coordinator, there is no discernable difference between the agreement defendant was asked to sign and the PSA, since the scope of the coordinator's involvement framed in the former mirrors that contemplated in the latter. And finally, defendant's reply certification is not only untimely, Rule 1:6-3(a); Rule 5:5-4(c), but signed by counsel who presumably is in no position to certify to facts not within his personal knowledge. R. 1:6-6.

Affirmed.

 

The closing on the refinancing loan actually took place on December 22, 2005. In defendant's absence, the court-appointed attorney executed the necessary documents in order to accomplish the refinance.

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A-2020-05T1

 

August 24, 2006