LAURA MOFFITT v. GUY MOFFITT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6204-03T26204-03T2

LAURA MOFFITT,

Plaintiff-Appellant,

v.

GUY MOFFITT,

Defendant-Respondent.

 

Submitted October 12, 2005 - Decided

Before Judges Conley, Winkelstein and Francis.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FM-02-1882-02.

Sunshine, Atkins, Minassian & Tafuri, attorneys for appellant (Jay R. Atkins and Kristen Capogrosso, on the brief).

Marcus, Brody, Ford, Kessler & Sahner, attorneys for respondent (Todd M. Sahner, of counsel and on the brief).

PER CURIAM

Plaintiff-wife in this post-judgment matrimonial case appeals from an order of the Chancery Division, Family Part, denying her application for enforcement of various provisions of the divorce judgment. The order granted defendant-husband's cross-motion in which he sought an order barring her from bringing an application before the court on any issue that had previously been determined and awarding him counsel fees of $3,000. On appeal, plaintiff contends:

POINT I

THE TRIAL COURT IMPROPERLY MODIFIED THE PARTIES' FINAL JUDGMENT OF DIVORCE REGARDING TUTORING AND SPECIAL EDUCATIONAL REQUIREMENTS FOR GRANT MOFFITT.

POINT II

THE TRIAL COURT IMPROPERLY MODIFIED THE PARTIES' FINAL JUDGMENT OF DIVORCE REGARDING TUTORING FOR MELANIE BY DISREGARDING DEFENDANT'S OBLIGATION TO PAY FOR TUTORING FOR MELANIE WHICH DEFENDANT APPROVED.

POINT III

THE TRIAL COURT IMPROPERLY MODIFIED THE PARTIES' FINAL JUDGMENT OF DIVORCE BY DECLINING TO REQUIRE DEFENDANT TO PAY MEDICAL EXPENSES FOR THE PARTIES' SON FOR WHICH DEFENDANT WAS CLEARLY RESPONSIBLE.

POINT IV

THE TRIAL COURT IMPROPERLY GAVE DEFENDANT A VETO POWER OVER PLAINTIFF AND THE CHILDREN SPENDING SUMMERS IN TANNERSVILLE, NEW YORK.

POINT V

THE TRIAL COURT IMPROPERLY REQUIRED PLAINTIFF TO OBTAIN APPROVAL FOR FUTURE APPLICATIONS.

POINT VI

THE TRIAL JUDGE IMPROPERLY SANCTIONED PLAINTIFF THROUGH AN AWARD OF COUNSEL FEES.

We have considered the issues raised by plaintiff regarding tutoring and special education requirements for Grant Moffitt, defendant's obligation to pay for math tutoring for Melanie Moffitt, and defendant's obligation to pay medical expenses for Grant Moffitt and conclude that the disputed facts require a plenary hearing. We further conclude that the trial court exceeded its discretion in restraining plaintiff's ability to file future actions.

Judgment of Divorce was entered on May 29, 2003, which dissolved the fifteen-and-a-half year marriage, and incorporated their agreement with respect to settling all of the financial consequences of the marriage and divorce as well as matters relating to custody of their two children. The divorce judgment provided for Cynthia Johnson to serve as the "monitor concerning all children issues" and for the parties to "attempt to resolve all issues concerning the children with the monitor prior to making application to the Court." The divorce judgment also provided for Dr. Jane Healy to evaluate the special education needs of the infant child, Grant Moffitt.

In July 2003, plaintiff filed a motion to vacate the divorce judgment, which was denied and is not presently before us on appeal. In December 2003, defendant filed a motion for post-judgment relief, and plaintiff filed a cross-motion; the court granted in part and denied in part the relief requested by both parties. This also is not presently before us on appeal.

Each of the parties perceived that the other failed to comply with some of their obligations as set forth in the divorce judgment. In April 2004, plaintiff moved and defendant cross-moved for enforcement relief. Plaintiff raised eleven items and defendant raised ten. A detailed order was entered on June 4, 2004 granting a portion of the relief requested. The motion judge also filed a letter of explanation in August 2004. In that motion, plaintiff sought an order compelling defendant "to pay his one-half share of Grant's participation in social skills group and occupational therapy" as recommended by Dr. Healy, and compelling defendant "to pay his one-half share of Grant's summer tutoring costs." The court denied this application reasoning that plaintiff had not presented these issues to Cynthia Johnson for consideration. Regarding Grant's tutoring, paragraph 4 of the divorce judgment gave exclusive, binding authority to Dr. Healy as to "what level of tutoring that Grant may need." Thus, Dr. Healy's authority exceeded that of merely making recommendations regarding Grant's needs.

Plaintiff argues that the decision of the court amounts to an improper modification of the divorce judgment. Defendant argues that the court addressed this issue during the February 20, 2004 hearing and expressly instructed plaintiff to "wait until the child finishes this school year, send the reports over to Cynthia Johnson, to Dr. Healy, let them confer with each other to decide whether there should be any special social training." We are convinced that the record supports defendant's argument, and makes it clear that the court intended for Cynthia Johnson and Dr. Healy to work in concert. Plaintiff's application was premature in that the school year had not ended and the issue had not been reviewed with Cynthia Johnson.

Plaintiff sought an order compelling defendant to pay his one-half share of the cost of a math tutor for Melanie. This request was denied based on the court's rationale that the matter had not been discussed with Cynthia Johnson and defendant. Melanie was having difficulty with algebra, and it is undisputed that the parties discussed the matter with Cynthia Johnson in mediation. However, defendant contends in his opposing certification that it was only "briefly" discussed and that he was never involved in the decision-making process. Plaintiff asserts that defendant was provided with multiple copies of warning notices issued by the school and a copy of Melanie's report card. Plaintiff contends that the trial court improperly modified the final Judgment of Divorce regarding tutoring for Melanie by disregarding defendant's obligation to pay for tutoring defendant had approved. At the time of the June 7, 2004 decision, the court did not have available for its consideration the June 9, 2004 letter which, in contrast to defendant's assertion, set forth, "Mrs. Moffitt did not override any recommendations. Melanie was placed in her classes based on teacher recommendations." Based on these disputed facts, this issue requires a credibility finding and plenary hearing.

The Judgment of Divorce ordered defendant to maintain medical insurance for the children and ordered plaintiff to bear the cost of the first $750.00 per child per year of all medical, dental, and healthcare related bills not covered by defendant's health insurance. Plaintiff sought an order directing defendant to pay the $2,940.00 balance of Grant's orthodontist invoice. The court denied this request based on its finding that an agreement existed between plaintiff, defendant, and the orthodontist that provided that payments would include a $1,100.00 down payment followed by monthly payments of $150.00. Following oral argument, the court concluded that plaintiff "attempted to unilaterally renegotiate the terms of the payment schedule with Dr. Martin in an attempt to force Husband to pay the entire remaining balance before the end of the calendar year, thereby saving Wife from having to pay the first $750.00 in 2005." Plaintiff contends that defendant entered into a unilateral agreement with the orthodontist for payments to be spread over a period of months, and since plaintiff was responsible for the first $750.00 of medical and dental bills each year, the payment arrangement subverted the intent of the divorce judgment, as plaintiff could theoretically pay $750.00 each year until the entire bill has been paid. This issue requires an interpretation of the divorce judgment and a determination of credibility regarding the payment arrangements with the orthodontist as determined by plenary hearing.

Plaintiff contends that the court improperly gave defendant a veto power over plaintiff and the children spending time in Tannersville, New York. In its order of June 4, 2004, the court ordered that the children shall not be taken to Tannersville for the summer without the trip being incorporated "into a plan arrived at through consultation with Cynthia Johnson and with the consent of defendant." Plaintiff contends that defendant's consent amounts to a power of veto. We disagree. As with all issues concerning the children, if the same cannot be resolved with the assistance of Cynthia Johnson and the parties' consent, the remedy is to make application to the court.

Plaintiff contends that the trial court erred by requiring plaintiff to obtain approval for future actions. The reasons set forth by the court in the August 2004 letter of explanation for imposing the restraint on plaintiff's ability to file future motions included a finding of bad faith on the part of plaintiff in filing a motion to vacate the divorce judgment only two months after entry of the judgment. Accordingly, plaintiff was assessed counsel fees. The court relied on Kozak v.Kozak, 280 N.J. Super. 272 (Ch. Div. 1994), certif. denied, 151 N.J. 73 (1997). In Kozak, the plaintiff filed numerous motions many of which were directed at the court, including motions requesting that the judge and defendant undergo psychiatric evaluations and that the court hold hearings as to the fitness of the defendant and defense counsel, all of which were unsupported by "any recent or relevant allegations." Id. at 275. Judge Page reviewed all of the motions and concluded that the plaintiff was attempting "to use the motion practice for improper purposes and other personal reasons." Ibid. "The use of motions and in-court proceedings, letters and other memoranda presented to the court in an effort to intimidate judges or improperly influence the decision making process cannot be tolerated." Id. at 276. The Kozak court noted that the plaintiff often brought his own audience to the court and would "make comments, gestures, and remarks to his audience." Ibid. Clearly, the facts here are distinguished.

The appropriate remedy under these circumstances is the awarding of counsel fees, which were awarded to defendant in the December 7, 2004 order. We affirm the awarding of counsel fees for the reasons set forth in the trial court's comprehensive December 7, 2004 written decision.

We remand this matter to the trial court for plenary hearing on points I, II and III of plaintiff's brief and reverse on point V. Affirmed in all other respects.

 

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9

A-006204-03T2

May 23, 2006