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NOT FOR PUBLICATION WITHOUT THE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-4402-04T14402-04T1

MELANIE TAFARO, n/k/a

MELANIE MILLER,

Plaintiff-Respondent,

v.

STEPHEN TAFARO,

Defendant-Appellant.

 

Argued: April 3, 2006 - Decided July 13, 2006

Before Judges Fall, C.S. Fisher and Miniman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket Number FM-10-339-03.

Jeffrey L. Weinstein argued the cause for appellant.

Neil S. Braun argued the cause for respondent (Gomperts & Braun, attorneys; Mr. Braun, of counsel, and Priscilla A.J. Miller, on the brief).

PER CURIAM

In this post-judgment matrimonial matter, defendant Stephen Tafaro appeals from an order entered in the Family Part on March 16, 2005, denying his application for reconsideration or modification of an order issued on November 4, 2004, concerning parenting-time issues.

Defendant and plaintiff Melanie Tafaro, now known as Melanie Miller, were married on April 25, 1987, and were divorced on June 1, 2004. They have two children: Andrew, born on May 23, 1989; and Emily, born on October 27, 1990.

The property settlement agreement entered into by the parties provides that they were to share joint legal custody of the children, but that "some aspects of the joint custodial arrangement" were to be resolved by a parenting coordinator

who will be empowered to submit recommendations to the court if the parties do not agree to the recommendation. The children will actively participate in the resolution of issues as the coordinator deems appropriate. If either party does not agree to the coordinator's recommendation, he or she may apply to the court by a motion, and the court will then resolve the issue, considering but not being bound by the coordinator's recommendations.

On August 9, 2004, an order was entered appointing John W. Thatcher, Esq. as the "parent coordinator" in this matter. The order entered appears to be a "form" or "standard" order, tailored to this case. According to that order, the role of the parent coordinator is to "serve in a directive role to resolve all conflicts related to parenting issues." All communications among the parties, their lawyers and the parenting coordinator were "not deemed confidential, but rather shall be admissible in evidence[.]" The parent coordinator was to make recommendations to the parties and their attorneys directly, which recommendations were to accompany any application to the court by either party. In performance of his functions, the parent coordinator was authorized to have contact with any third parties, including the children, therapists, physicians, childcare providers, teacher and family members.

The parent coordinator was given a broad scope of topics on which he was able to make recommendations, and the parties were to equally share his fees. A retainer "in an amount to be determined by the Parent Coordinator" was to be equally shared by the parties. Any testimony by the parent coordinator was to "be deemed expert testimony, and paid accordingly." Additionally:

The Parent Coordinator may withdraw from service at any time, upon ten days notice to the parties and the Court, if s/he determines resignation to be in the best interests of the children or s/he is unable to serve out the term. If any party believes that there exists a grievance with the Parent Coordinator that cannot be resolved, that party may bring a motion to have the Parent Coordinator relieved, provided that the party has first met and conferred with the Parent Coordinator in an effort to resolve the grievance.

On plaintiff's application, and after conducting a hearing in the presence of both parties, the Family Part entered an order to show cause on October 5, 2004, suspending any and all parenting time by defendant with the children until further order of the court. Additional requests for relief sought by plaintiff, including a transfer of custody, termination of defendant's parenting time until professional help was obtained in accordance with the recommendation of the parent coordinator, modification of defendant's child support obligation, and payment of counsel fees and costs, were made returnable on October 29, 2004.

In her supporting certification plaintiff contended, inter alia, that "[t]he children are frightened of defendant and have been terrorized." Plaintiff also attached a detailed report from the parent coordinator, addressed to the court, dated October 5, 2004. In his report, the parent coordinator states that he had met with both parties on September 14, 2004, and with the children on September 24, 2004, and reviewed correspondence from defendant to plaintiff and reports from Dr. Donald J. Franklin, a psychologist.

The letter of the parent coordinator to the court stated, in pertinent part:

Although my time with the parties and the parties' children has been limited, I believe the Court must be made aware of the recent suicide threat made by the parties' son.

I do not have any confidence that I can be of any assistance to the parties going forward. I believe this to be true for no other reason than Dr. Tafaro has no interest in listening to me or listening to any of my suggestions. . .

Dr. Tafaro will not take any responsibility whatsoever for what has transpired with the marital/family problems. He blames lawyers, the court system, the judges, etc. He has done nothing to contribute to this problem and, in fact, will tell you that it is he who has been harmed, that his rights have been trampled on and destroyed. His children will tell you a different story. . . I specifically asked the children what type of parenting schedule they would like with their father. They indicated to me a minimal schedule, with the right to cancel if they decided they did not want to go. Clearly, these children love their father and want a loving parental relationship with him. However, based upon his current conduct and how he acts toward them presently, they do not want to be with him. They claim it is "frightening having to deal with him." They are angry with him for "acting like a two year old." Andrew describes his father as not being able to control his anger and/or temper and indicates that his father will not admit to having a problem. The adjective that was stated the most times during my discussion with the children was "stressful." It is obvious that these children are the victims of a long and bitter divorce, and the stress has not ended for them since the parties' divorce. In fact, it has probably gotten worse. The children describe holidays as a "nightmare."

Dr. Tafaro explained to me that he should have custody of the children exactly 50% of the time. He feels he should be consulted on all decisions that relate to his children, even what their mother serves them for dinner during her parenting time. . .

In attempting to talk with Dr. Tafaro in as meaningful a way as possible, he is uninterested in hearing what I have to say. In his mind, his "rights" are paramount and he is basically inflexible as to any suggestion from me. He has made it clear that his rights are more important than what may be in the best interests of his children.

* * * *

According to the children, they are being manipulated and terrorized during parenting time visitation with Dr. Tafaro. They are clearly uncomfortable there. They do not want to be there. Under these circumstances, I do not believe the children should be subjected to their father's brutality. In my opinion, it is absolutely not in their best interest, and at the same time could lead to frightening circumstances. I do not believe Andrew's threat of suicide was gratuitous. It must be taken seriously. I believe that joint custody should be terminated and that Ms. Miller be given full custody of the children on a temporary basis, pending further order of the Court. Parenting time/visitation with Dr. Tafaro should be suspended and should only occur in the future under supervision. I believe it is clear that Dr. Tafaro needs psychological help and that the privileges of parenting should not be reinstated until Dr. Tafaro has proven his ability to the Court through a professional.

Defendant filed a responding certification dated October 21, 2004, denying the allegations contained in the certification of plaintiff and the report of the parent coordinator. He contended that the current situation was the fault of others, stating "that the Plaintiff and Judge Herr have screwed this case up from the start and there has never been any effort made by the Plaintiff, the Court or the children to correct this matter[;]" that "[t]he volatility and fighting started on Sunday evening September 19th when my son decided he was going to forego using his table manners and eat like a barbarian[;]" that "[t]he Holland Township Police Department feels that children have the right to ignore court orders and refuse to place them in the custody of the visiting parent[;]" that "[i]t is obvious to me that the Plaintiff and Mr. Thatcher collaborated together and violated the Court's Order appointing him Parent Coordinator[;]" and "[a]s I have told the court and Dr. Franklin, individual psychological counseling at this time is a waste of time and money."

Following a hearing on the return date of the order to show cause in the Family Part on November 3, 2004, the judge issued an order, supported by a statement of reasons, directing that "[d]efendant's parenting time shall occur at the initiation of the children rather than on a schedule set by the court[;]" that plaintiff will "have final authority in decisions regarding schooling, medical/psychological needs and other major decisions affecting the children[,]" but shall notify and make best efforts to confer with defendant in such decision; that "[a]ny counseling is to be done either by a psychologist or a psychiatrist[,]" with defendant having no direct contact with the person selected by plaintiff; that "[d]efendant is encouraged to review and follow Dr. Franklin's recommendations as to counseling[;]" and that "[e]ither party may at any time move for modification of this order."

On February 4, 2005, defendant filed and served a motion for modification of the custody and parenting time arrangement and to enforce litigant's rights. Specifically, defendant sought an order finding the parent coordinator to be in contempt of court; finding plaintiff to be in contempt of court; finding that plaintiff's counsel Neil Braun, Esq. had committed perjury; seeking a reprimand of plaintiff's counsel Priscilla Miller, Esq. for directing and encouraging plaintiff to disobey court orders; modifying the November 4, 2004 order to provide him fixed parenting time with the children, removing all restrictions on his joint custody rights, directing family counseling, and recognizing that Andrew's suicide threat was never serious and that plaintiff had deceived the court concerning same; crediting him $300.18 against his support account for monies due him from the sale of the former marital domicile; and requiring the motion judge to explain his actions.

Argument on defendant's motion was conducted in the Family Part on March 4, 2005, and the judge reserved decision. On March 16, 2005, the judge issued an order, accompanied by a statement of reasons, that denied defendant's request to modify the November 4, 2004 order; denied his requests to reprimand plaintiff's attorneys; dismissed defendant's charges against the parent coordinator, but relieved the Parent Coordinator of his duties; appointed Dr. William Campagna, a psychologist, to serve as parent coordinator and directed both parties to contact Dr. Campagna; denied defendant's request for a credit against child support; directed plaintiff to arrange for immediate and ongoing weekly psychological counseling for both children; and directed defendant to reimburse plaintiff $312.15 based on her overpayment of the parent coordinator's bill.

Defendant's application to this court for emergent relief and a stay of the Family Part's March 16, 2005 order was denied. On appeal, defendant presents the following arguments for our consideration:

POINT I

THIS MATTER MUST BE REMANDED BECAUSE THE COURT BELOW TERMINATED DEFENDANT'S VISITATION WITHOUT CONDUCTING A TESTIMONIAL HEARING.

POINT II

THIS MATTER MUST BE REMANDED BECAUSE THE COURT BELOW GAVE UNDUE WEIGHT TO THE CHILDREN'S PREFERENCES IN LEAVING VISITATION AT THEIR DISCRETION AND BY FAILING TO INTERVIEW THE CHILDREN.

POINT III

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), and we affirm substantially for the reasons articulated by the motion judge in his statement of reasons appended to the March 16, 2005 order. We add the following.

Custody and parenting time disputes are among the most volatile in our court system. As our esteemed colleague Judge Howard Kestin wisely stated more than a decade ago:

We urge the parties to understand that courts in any jurisdiction are poor places to resolve such fundamental relational problems as child custody. Rules of law and procedural strictures are no substitute for personal choice in so intensely personal an issue. Parents who have divorced are frequently unable to communicate constructively on issues of importance; so they look to the legal system to resolve their problems. But no stranger in a judicial robe, however able and well motivated he or she may be, is equipped to make a decision as valid as the parents working together might make.

Both [parties] must come to understand that security, peace of mind and stability are every child's right. Their inability to deal constructively with each other deprives their [children] of [their] due, which is within their power to give. Professed love is no substitute where it results in turmoil and uncertainty for the [children] who [are] pulled in opposite directions by [their] parents. [These children] will receive what [they] desperately need[] in this regard only if both parents are genuinely prepared to subordinate their individual needs to the best interests of the [children] and begin to communicate with each other solely for the benefit of the [children]. We urge the parties to make an effort to resolve this matter between themselves with professional assistance. Otherwise, there is a substantial risk that they will doom their [children] to a future of conflict, sadness and certain psychological harm.

[Tahan v. Duquette, 259 N.J. Super. 328, 336 (App. Div. 1992).]

The greatest attribute of parents who solely act in the best interests of their children is an ability to put aside their personal feelings or agenda and place the interest of the children ahead of their own. Here, most unfortunately for these children, their parents have very different views on issues pertaining to their health, safety, education and welfare. In effect, both parties recognized their inability to deal with each other in a normal, healthy manner when they specifically agreed to the appointment of a parent coordinator in their property settlement agreement.

Our review of the record discloses no misapplication of discretion by the motion judge in attempting to effectuate the intent of the parties' agreement to participate in a joint custodial relationship with their children, guided by the assistance of a parent coordinator. Unfortunately, it cannot be said that this effort has been successful. However, everything in this record points to the conduct and rigidity of defendant as the most significant reason for this lack of success.

We also find no misapplication of discretion by the judge in declining to interview the children, as the record discloses that such an interview would continue to place the children in the middle of parental warfare. In the volatile circumstances of this case, the parent coordinator or other mental health professional is in the best position to speak with the children to discern their preferences and best interests and report same to the court.

Unfortunately, children are the ultimate victims of an inability of a parent to recognize that continued turmoil can only adversely affect the children and the parent-child relationship, which is one of the sociological and psychological foundations of our society. We urge defendant to put aside his personal differences and preferences, and that the parties work together to minimize the negative and concentrate on assuring these children a good, healthy relationship with both parents. The motion judge recognized that a change of the parent coordinator may assist the parties in that regard by the appointment of not only a different person but a mental health provider, who presumptively possesses the requisite training and understanding in the area of parent-child relationships and dynamics to effectuate that goal.

If this latest effort is unsuccessful, perhaps the appointment of a guardian ad litem pursuant to the authority contained in R. 5:8B may be necessary to properly protect these children and provide further guidance to the court; we hope that will not become necessary. If the court's efforts are unsuccessful, upon further application, we recognize that a plenary hearing may be necessary at some point to provide the court with a proper evidentiary basis to formulate a more long-range parent-child relationship that will serve the best interests of the children.

Indeed, reexamination of the nature of the custodial relationship may be necessary at some point if the volatility continues. See Nufrio v. Nufrio, 341 N.J. Super. 548, 555 (App. Div. 2001) (noting that joint custodial relationships should be reserved to circumstances where it is likely to foster the best interests of children and that a "joint custody label" should not serve "as a disguised attempt to harass [each other] through repeated applications to the court[]"); accord Mamolen v. Mamolen, 346 N.J. Super. 493, 502 (App. Div. 2002) (quoting Nufrio, supra, 341 N.J. Super. at 550, and noting that the prime criteria for creation of a joint custodial relationship centers on the ability of parents to agree, communicate and cooperate in matters relating to the health, safety and welfare of their children).

Here, we urge both parties to adhere to the precepts and principles discussed herein and exert good faith efforts to act in the best interest of their children by doing everything they can to assure these children a healthy relationship with each parent. The trial court has provided a roadmap that has the potential to lead to that result. If the parents choose not to chart that course or, for some reason, are unable to do so, we are confident that, upon further application, the Family Part will exert its best efforts to balance the competing interests of the parties, conduct a full hearing, and ultimately act in what it finds to be the best interests of the children. See Cesare v. Cesare, 154 N.J. 394, 413 (1998) (recognizing the "special jurisdiction and expertise [of the Family Part] in family matters[]").

Affirmed.

 

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A-4402-04T1

July 13, 2006