EMILIO ANELLO, JR v. DANIELLE P. FIORINA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

EMILIO ANELLO, JR.

Plaintiff-Appellant,

v.

DANIELLE P. FIORINA,

Defendant-Respondent.

___________________________

April 21, 2015

Submitted September 8, 2014 Decided

Before Judges Simonelli and Leone.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FD-14-0558-09.

Murphy & Cistaro, LLC, attorneys for appellant (Patricia J. Cistaro, on the briefs).

Law Office of Janet L. Porro, attorneys for defendant (Janet L. Porro and Janet S. Del Gaizo, on the brief).

PER CURIAM

In this non-dissolution matter, plaintiff Emilio Anello, Jr. (Emilio)1 appeals from the June 5, 2013 Family Part order, which established a holiday parenting time schedule with his son, Louis.2 Emilio also appeals from the September 6, 2013 order, which denied his motion for reconsideration. For the following reasons, we affirm.

This case has an extremely disturbing history. Emilio and defendant Danielle P. Fiorina (Danielle) began a romantic relationship in 2006, but never married. Their relationship ended before Louis was born in 2008. It is abundantly clear from the record that since the time of their breakup, the parties' relationship has been tumultuous and vitriolic. Their current inability to come to any agreement on custody and parenting time, and their constant fighting over the smallest details, including who will cut Louis's hair and fingernails, has put the child in the middle of a constant battle between two adults who have repeatedly used the judicial system as the vehicle for expression of their dysfunction.

The parties' interaction with the court system began shortly after Louis's birth. Even before haling each other into court, the parties' relationship had hit rock bottom. They communicated almost exclusively by e-mail or text messages, most of which were laden with palpable acrimony. Those communications reflect their regular and bitter disputes over parenting time, which continue in this appeal.

By way of background, in a December 2008 agreement signed by Emilio, Danielle and their respective attorneys, the parties agreed to joint legal custody of Louis with Danielle as the parent of primary residence (PPR). The agreement also established Emilio's parenting time schedule and child support obligation, among other things.

In June 2009, Emilio filed a non-dissolution complaint against Danielle. In a September 24, 2009 consent order, the parties again agreed to have joint legal custody with Danielle as the PPR. The consent order also established Emilio's parenting time schedule, including a holiday schedule.

On October 30, 2009, Danielle filed a motion for an increase in child support and to compel Emilio to dress and return Louis to her in appropriate clothing. Emilio filed a cross-motion for joint residential and legal custody, or, alternatively, an increase in parenting time, including all holidays and Louis's birthday. He asserted that he should be granted all holidays and Louis's birthday because Danielle was a Jehovah's Witness who did not celebrate these events. Danielle opposed an increase in Emilio's parenting time and asserted the parties had agreed to share parenting time on the holidays, with Emilio having Halloween and overnights on Thanksgiving, Christmas Eve and New Year's Eve.

Prior to the disposition of the motion and cross-motion, Danielle filed an order to show cause to enjoin Emilio's parenting time pending a risk assessment and best interests evaluation. In an April 23, 2010 order, the trial judge, who presided over every matter in this contentious case, ordered the parties to attend a custody and psychological evaluation with Mathias R. Hagovsky, Ph.D.

Thereafter, in a June 9, 2010 order and written opinion, the judge rejected Emilio's cross-motion for joint legal and residential custody and enforced the custody provision of the September 24, 2009 consent order. The judge also decreased Emilio's parenting time and rejected his request for all holidays and Louis's birthday. The judge focused on Louis's best interests and concluded as follows

In this case, a fair reading and understanding of the nature of the parties' relationship and their inability to cooperate or communicate because of the acute level of their conflict makes the consent order entered on September 24, 2009 that established a parenting schedule difficult for the parties to work under. The current parenting time schedule requires too much interaction between the parties in which they are unable to exercise an appropriate amount of cooperation with one another to make the parenting time arrangement work in the best interest[s] of the child. [Emilio] fails to show how having an increased visitation schedule would be in accordance with the child's best interests.

[(Emphasis added).]

Over the next twenty months, the judge had to resolve numerous motions concerning disputes over virtually every aspect of Louis's life and Emilio's alleged violation of the parenting time orders. In the meantime, Dr. Hagovsky issued a comprehensive report of the results of the custody and psychological evaluations. The doctor emphasized "that the parties appear unable to communicate effectively . . . on almost any issue relative to [Louis's] well-being" and that "there is literally no area of this child's experience and the requirements of co-parenting that has not resulted in some degree of conflict." The doctor also found no support for a substantial increase in Emilio's parenting time, concluding that an increase "might be even disruptive to [Louis] who is accustomed to the current schedule. It would also likely increase the degree of cooperation and co-parenting required between [Danielle] and [Emilio] which does not appear likely at the present time." Dr. Hagovsky made several recommendations, including that the judge set a specific holiday and vacation schedule "to avert ambiguity."

Sometime thereafter, Danielle filed a motion to hold Emilio in violation of litigant's rights for interfering with her parenting time. In a November 14, 2011 order, the judge held Emilio in violation of litigant's rights, finding that he "purposely ignored [c]ourt [o]rders and infringed upon [Danielle's] parenting time. Moreover, [Emilio's] behavior reflect[ed] a pattern of habitual lateness with regard to both pick-up and drop-off of [Louis], probably to irritate [Danielle]." Emphasizing that the parties continued to have "an acutely difficult time getting along," the judge ordered them to work with a parent coordinator.

Unfortunately, the well-experienced parent coordinator could not quell the parties' hostility toward one another. She reported to the judge that "[t]his has been the most contentious case [she has] experienced in [her] professional life" and that the "repetitiveness of the parties' inability to co-parent without conflict has remained essentially unabated." She recommended the appointment of a mediator or arbitrator "to help guide and direct the child rearing process." She also recommended that "damage to the child be minimized by a change in the parenting schedule such that the number of exchanges required are less frequent."3

In an August 18, 2012 consent order, the parties resolved some of the parenting time issues and agreed that Emilio would cut Louis's hair and Danielle would cut his nails. That consent order was short-lived, however, because on January 12, 2013, Danielle filed a motion to hold Emilio in violation of litigant's rights for violating her parenting time. She sought an automatic forfeiture of Emilio's next-scheduled parenting time for future violations. In addition, because Emilio refused to return Louis during her scheduled holiday parenting time, she also sought parenting time on all holidays. She certified that Emilio continued to infringe upon her parenting time and refused to abide by the holiday parenting time schedule to which they had voluntarily agreed. She noted that although she did not celebrate certain holidays for religious reasons, she did not work those days, could "spend quality time" with Louis, and they both could spend time with family members who celebrate holidays.

Emilio filed a cross-motion to hold Danielle in violation of litigant's rights for violating the August 18, 2012 order by cutting Louis's hair. He again sought an increase in parenting time and parenting time on all holidays and Louis's birthday.

The judge conducted a hearing on May 2 and May 9, 2013, at which both parties testified under oath. Neither party objected to this procedure. Danielle admitted that she cut Louis's hair once, but explained that Emilio did not cut the child's hair for two months despite her repeated requests, and Louis asked her to cut his hair because it was in his eyes and schoolmates were "calling him a girl."

Danielle also testified that as a practicing Jehovah's Witness, her "religious beliefs and convictions . . . incline [her] away from honoring or celebrating anything that [is] not explicitly identified in the Bible[.]" However, this did not preclude her from "having a family gathering or meal" on such days, because "everyone shuts down on these days and [she's] able to have uninterrupted time with" Louis.

Regarding religious holidays, Danielle testified that her father and members of Louis's paternal family visit Louis either on Christmas Eve or Christmas Day.4 As for Easter, she testified that

all the holidays are the same to me. They're . . . where I don't work, I have time at home, with [Louis], . . . other family members, my father, [Louis'] paternal grandparents, anyone can come visit, because they're not working as well. So they're able to come over and spend time together on these holidays. . . . they celebrate. I don't prevent them from celebrating. They do what they do. If they want to come in and wish my son a . . . happy Easter, that's what they do. I don't prevent that. . . . They have given him Easter baskets . . . they're allowed to give him what they want to give [him]. I don't interfere with what they want to do.

In terms of secular federal holidays, such as Memorial Day, President's Day, Independence Day and Labor Day, Danielle testified that they are

pretty much all the same . . . but it's an opportunity where I spend time, I don't have to work. [Louis] gets to spend time with other people . . . in his close family that do not work, and are around. My father, his paternal grandparents, cousins. . . . We . . . have something to eat at my house or we would go out to eat.

Danielle then acknowledged that she would not attend a Memorial Day service or a fireworks show on the Fourth of July, as she did not "celebrate it [and t]hat would be a part of celebrating it." She also would not celebrate Thanksgiving, but would "either eat at [her] house or go out. . . . it's really just the same. [Louis is] not in school, he gets to spend time with family."

Following the hearing, the parties agreed to reserve decision on Emilio's request for increased parenting time pending an updated evaluation by Dr. Hagovsky. Regarding a holiday parenting-time schedule, the parties agreed to each submit a proposed schedule and let the judge set the schedule. In addition, following the hearing, Emilio submitted a thirty-seven paragraph supplemental certification along with twenty-one additional exhibits, which further clarified his position on the holiday parenting time issue, among other things.

In a June 5, 2013 order, the judge established a detailed holiday parenting time schedule, granting Emilio every Memorial Day weekend, Halloween, Veteran's Day, Christmas Eve to Christmas Morning, Father's Day and Emilio's birthday, and granting Danielle every Labor Day weekend, Christmas Day, Mother's Day and her birthday. The judge split July 4th, President's Day, Easter, Columbus Day, Thanksgiving Day, New Year's Eve and New Year's Day and Louis's birthday.

The order did not address Emilio's request to hold Danielle in violation of litigant's rights. As a result, in two subsequent letters to the judge, Emilio's attorney asked the judge to render a decision based on the "extensive testimony" taken on May 2 and 9, 2013, including Danielle's admission that she had cut Louis's hair. Emilio did not appeal. Instead, on June 25, 2013, he filed a motion for reconsideration of the June 5, 2013 order.

In a September 6, 2013 order and written opinion, the judge declined to reconsider the holiday parenting time schedule, finding that Emilio merely disagreed with the decision and was attempting a "second bite at the apple" to "once more air [his] position[] and re-litigate issues already decided." The judge reconsidered, and rejected, Emilio's request to hold Danielle in violation of litigant's rights, finding that both parties had been non-compliant with various court orders.

On October 21, 2013, exactly forty-five days after entry of the September 6, 2013 order, Emilio filed a pro se notice of appeal from the June 5, and September 6, 2013 orders. He is now represented by counsel, who filed a merits brief and appendix on his behalf. On appeal, Emilio raises the following contentions

I. THE TRIAL COURT[']S FINDINGS WERE NOT SUPPORTED BY ADEQUATE, SUBSTANTIAL AND CREDIBLE EVIDENCE.

II. THE TRIAL COURT['S] DECISION VIOLATES PLAINTIFF-APPELLANT'S FUNDAMENTAL AND CONSTITUTIONAL RIGHTS.

III. IN THE EVENT THIS COURT CANNOT REVERSE THE DECISION WITHOUT FURTHER FINDINGS, THE CASE SHOULD BE REMANDED FOR A FORMAL PLENARY HEARING.

IV. DEFENDANT-RESPONDENT SHOULD BE HELD IN VIOLATION OF LITIGANT'S RIGHTS FOR HER ADMITTED VIOLATION OF THE COURT'S ORDER.

We decline to address the contention in Point II of Emilio's merits brief. He did not raise this issue before the judge, and it is not jurisdictional in nature nor does it substantially implicate the public interest. Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997).

We have considered the contentions in Points III and IV of Emilio's merits brief in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we make the following brief comments.

The judge presided over this matter since its inception in 2009, and was intricately familiar with the parties and issues, including the holiday parenting time issue, which was presented more than once. The judge heard "extensive testimony" from the parties and received certifications, briefs and arguments. The judge had more than ample evidence on which to render a decision on holiday parenting time, and Emilio fails to show what further evidence another hearing would reveal. Accordingly, we focus on the contention in Point I.

Emilio argues that the June 5, 2013 order must be reversed for lack of factual findings and reasons for the holiday parenting time schedule, as required by Rule 1:7-4. He also argues that the judge's decision is inconsistent with Danielle's testimony that she does not celebrate holidays.

Although the June 5, 2013 order stated it was entered "for reasons set forth on the record," the judge gave no oral opinion. While that is regrettable, it is merely a basis for criticism, not reversal. The rationale for the order is clearly discernible from the record. The judge granted Emilio every Memorial Day weekend, Halloween, and Veteran's Day presumably because Danielle does not celebrate these holidays. Presumably as a balance, the judge granted Danielle every Labor Day weekend. The judge split the remaining secular and non-secular holidays and Louis's birthday.

We are satisfied that the record as a whole adequately supports the judge's decision and discern no reason to disturb the judge's proper exercise of discretion in selecting an appropriate remedy. See Milne v. Goldenberg, 428 N.J. Super. 184, 198-99 (App. Div. 2012). In our view, Louis's best interest can only be fostered by spending time with each of his parents on their designated holidays and his birthday. See Finamore v. Aronson, 382 N.J. Super. 514, 523 (App. Div. 2006). The record contains no evidence to the contrary.

Unfortunately, we cannot complete our tasks as appellate judges without noting Emilio's disregard of our Rules of appellate practice. Rule 2:4-1(a) requires appeals to be filed within forty-five days of the entry of a final judgment. Rule 2:4-4(a) permits one thirty-day extension for good cause in the absence of prejudice. The thirty-day extension cannot be enlarged. See R. 1:3-4(b); Cabrera v. Tronolone, 205 N.J. Super. 268, 271 (App. Div. 1985), certif. denied, 103 N.J. 493 (1986). Reading both Rules together, the outer limit for filing an appeal is seventy-five days from entry of the final judgment. The filing of a motion for reconsideration tolls the time for an appeal, and the remaining time to appeal runs from the date of the entry of an order disposing of the motion. R. 2:4-3(e).

In this case, Emilio initially had until July 20, 2013 to file an appeal from the June 5, 2013 order. The filing of his motion for reconsideration twenty days later on June 25, 2013 tolled the filing period, leaving twenty-five days after entry of the September 6, 2013 order, or October 1, 2013, to file an appeal from the June 5 order. Emilio did not timely file the appeal, nor did he file a motion for leave to extend the time to file, as required by Rule 2:4-4. However, because Danielle has not shown any prejudice, we exercise our discretion to grant a one-time thirty-day extension for good cause pursuant to Rule 2:4-4(a).

In addition to the above, there are several deficiencies in Emilio's merits brief: (1) he failed to indicate that the argument raised in Point II was not raised below, as required by Rule 2:6-2(a)(1); (2) the statement of the procedural history is deficient under Rule 2:6-2(a)(3); and (3) the statement of facts fails to incorporate "all pertinent evidence" and is not in the form of a "narrative chronological summary" as required by Rule 2:6-2(a)(4).5

Emilio's appendix is also deficient. It is replete with documents with no filing dates, contains duplicative documents, missing documents and out-of-order pages, and it fails to include parts of the record that are required by Rule 2:5-4(a) and Rule 2:6-1(a)(1)(I) and (b). In addition, Emilio failed to redact sensitive and confidential information and file a separate confidential appendix under seal. R. 1:38-3(d)(3), (13); R. 1:38-7(a) and (b); R. 2:5-4; R. 2:6-1(a)(3).

While ordinarily we would dismiss an appeal for these glaring deficiencies, we, instead, make these comments to guide the parties in the event of any future appeal.

Affirmed.

1 We use the parties' first names for ease of reference. We mean no disrespect in so doing.

2 We use a fictitious name for the child in order to protect his identity.

3 The record reveals that some of the exchanges involved police intervention.

4 The record indicates that Emilio is estranged from his family. Presumably, therefore, Louis does not see his paternal family relatives during Emilio's holiday parenting time.

5 Similarly, Danielle's statement of facts is in no way concise and presents ad hominem attacks and unnecessary tangential arguments in violation of Rule 2:6-2(a)(4).