HEIDI JENSEN v. HANS BURKE JENSEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

HEIDI JENSEN,

Plaintiff-Respondent,

v.

HANS BURKE JENSEN,

Defendant-Appellant.

_______________________________________

July 9, 2015

Submitted March 18, 2015 Decided

Before Judges Ashrafi, Kennedy, and O'Connor.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-0115-10.

H. Burke Jensen, appellant pro se.

Jacobowitz & Defino, P.C., attorneys for respondent (Benjamin M. Hoffman, on the brief).

PER CURIAM

Defendant-husband Hans Burke Jensen appeals from a November 4, 2011 order of the Family Part ruling on post-divorce motions filed by both parties. We affirm.

Husband and plaintiff-wife Heidi Jensen were married in Hawaii in December 2007. At the time of the marriage, they were residents of the state of Washington. They did not live together for very long after the marriage. Within a few months, husband was called to active duty in the United States military and deployed overseas. Wife moved to New Jersey, where she gave birth to their son in July 2008.

Wife filed for divorce in New Jersey in July 2009. In 2010, husband moved to Pennsylvania to be closer to the child. The child was diagnosed with a hearing impairment, which eventually required the surgical placement of pressure equalizer tubes in his ears. He was also diagnosed with delayed communication skills, "severe phonological and articulation deficits." The child's inability to communicate caused him to become frustrated and to be difficult to control at times.

In the course of the divorce action, the parties participated in economic mediation with attorney Glynn J. Dwyer, Jr. In the mediation, both parties were represented by attorneys. On August 9, 2010, they entered into a Property Settlement Agreement (PSA) that was incorporated into their judgment of divorce of the same date. The PSA contained a mutual waiver of alimony and addressed equitable distribution of some personal property. The parties agreed to be solely responsible for their own personal financial needs.

Most of the PSA pertained to the child. The parties would have joint legal custody, with wife as the parent of primary residence. Husband would pay child support, including wife's work-related child care expenses. The PSA also contemplated future adjustments of child support in accordance with the rules of court. By handwritten addition, the PSA specifically required the parties to exchange 2010 tax returns by May 1, 2011, and also provided that if husband earns money in the military reserves, he is to notify wife within thirty days.

The PSA set forth husband's parenting time in detailed schedules of increasing time through several phases. It contained terms regarding communications between the parties about the child, in particular because of the child's medical and therapeutic needs. The PSA also provided: "The parties shall immediately engage the services of an appropriate mental health professional to evaluate and provide therapy/counseling services with emphasis on family counseling and reunification therapy with the intent of improving the parties' co-parenting relationship." The therapist was to be jointly selected from a list of potential therapists whose services were covered by at least one of husband's two health insurance plans.

At some point after the divorce, the parties met with a Pennsylvania psychologist, Robert Gordon, Ph.D., who was selected by husband. After a few sessions, wife became dissatisfied with Dr. Gordon because he allegedly told her he would refer them to another therapist but did not do so, and also because he allegedly refused to give her copies of the documents she completed at the beginning of their therapy sessions. According to husband, wife unilaterally stopped attending the therapy sessions. Subsequently, Dr. Gordon decided he would not continue as a therapist for the parties.

Despite the precision of many terms in the PSA pertaining to the child, the parties were soon disputing a number of issues, including parenting time, the manner of transporting the child the long distance between the parties' homes, the child's medical and psychological needs, and the family therapy that was interrupted when wife objected to Dr. Gordon. The parties agreed to meet again with mediator Dwyer. At a mediation session on March 28, 2011, the parties reached a supplemental agreement with the assistance of their attorneys.

The following day, March 29, 2011, Dwyer wrote a three-page letter to the attorneys setting down the terms of the parties' agreement. In nine numbered paragraphs, Dwyer detailed the terms of the agreement on the child's medical needs, parenting time, the selection of a parenting coordinator, insurance coverage, child care expenses, and child support. Soon after the mediation agreement, however, husband's attorney withdrew from representing him. Wife's attorney was not successful in obtaining husband's approval to have a consent order filed in accordance with the terms of the post-judgment settlement.

In August 2011, wife filed a motion to appoint a psychologist/parenting coordinator and for other relief. Husband filed a pro se cross-motion seeking the participation of Dr. Gordon in the court's analysis of the disputed issues and for other relief. The court heard argument and entered an order on November 4, 2011, granting in part and denying in part each party's applications.

On the major issues, the court granted wife's request and incorporated mediator Dwyer's letter of March 29, 2011, in the court's order as stating the terms of the parties' agreement regarding parenting and related issues. The court also granted wife's motion to compel husband to provide his 2010 tax returns and recent paystubs as required by the August 2010 PSA. The court denied wife's motion to alter the location that the parties would exchange the child for parenting time, and it denied husband's cross-motion for a change in parenting time from the terms of the PSA and also for "make-up" parenting time.

In this appeal, husband, who is still pro se, has filed a lengthy but largely incoherent brief in which he uses the following point headings to summarize his arguments

POINT I

MEDIATION PRIVILEGE: Mediation Privilege Breached & Ordered.

POINT II

EXPERT APPOINTMENT & TESTIMONY: Parens Patriae Expert Appointment & Testimony Ordered then Findings Not Ordered Released.

POINT III

COURT DELEGATION OF AUTHORITY & LICENSED DIAGNOSIS DISREGARD: Parens Patriae Court Responsibility Abdicated to Third Party also Disregarding Licensed Concluding Diagnosis of Mental Health Expert Certifying Parenting Coordinator as Not Working.

POINT IV

HEALTHY & SAFETY OF CHILD: Parens Patriae Safety & Health of Child Wanton Neglect.

POINT V

FINANCIAL PRIVACY: Relief for Unnecessary Exposure of Financial Information Denied and Wrongful Routine Long-term Exposure of Financial Privacy Ordered.

POINT VI

FAIR RIGHTS OF FREEDOM TO RELIGION & SPEECH: Association & Advertising under First Amendment Rights Allowed for Plaintiff Attorney but Restrained for Pro Se Defendant.

POINT VII

FRAUD UPON THE COURT: Professional Conduct Responsibility Omissions of Plaintiff Attorney Allowed to Stand Mute while Defendant Accused of Personal Attacks with Warning of Sanctions.

Husband's written arguments in support of each of these points are to some extent more comprehensible than the point headings, but still rambling and unhelpfully organized. They are laden with reflections and dissertations that range far beyond the record of the case and improperly recite many alleged facts that seem to be outside the record presented in the trial court. See R. 2:5-4(a); see also Scott v. Salerno, 297 N.J. Super. 437, 447 (App. Div.) ("appellate review is confined to the record made in the trial court, and appellate courts will not consider evidence submitted on appeal that was not in the record before the trial court") (citations omitted), certif. denied, 149 N.J. 409 (1997); Middle Dep't Inspection Agency v. Home Ins. Co., 154 N.J. Super. 49, 56 (1977) (contents of documentary material that was not presented to the trial court "are of no consequence on the merits of this appeal"), certif. denied, 76 N.J. 234 (1978).

We will address each of husband's points as best as we can understand them.1

Point I Mediator's March 29, 2011 Letter

Husband alleges error by the trial court in considering and incorporating into its November 4, 2011 order the March 29, 2011 letter from mediator Dwyer setting forth the terms of the parties' post-judgment agreement. Citing N.J.S.A. 2A:23C-4, he argues that the mediation privilege was breached. That statute provides that "a mediation communication is privileged . . . and shall not be subject to discovery or admissible in evidence in a proceeding . . . ."

At the time of the hearing on the motions, neither husband nor wife objected to the court's consideration of Dwyer's letter. No one invoked a privilege. See N.J.S.A. 2A:23C-4(b)(1)-(3). Husband contends he failed to object because he is an out-of-state pro se litigant and was not familiar with court procedures. We have held that pro se litigants are presumed to know and must follow the same laws and procedural rules as lawyers. Tuckey v. Harleysville Ins. Co., 236 N.J. Super. 221, 224 (App. Div. 1989).

Furthermore, Dwyer's letter did not contain privileged communications of the parties stating their positions for purposes of negotiations, or his own recommendations for resolution of the issues. Nor can we discern any confidential factual material in the letter. Rather, the letter states the terms that the mediator believed the parties had agreed upon orally during the mediation session.

The statute defines "mediation communication" as "a statement, whether verbal or nonverbal or in a record, that occurs during a mediation or is made for purposes of considering, conducting, participating in, initiating, continuing, or reconvening a mediation or retaining a mediator." N.J.S.A. 2A:23C-2. Dwyer's letter did not have any of the listed purposes but was intended to memorialize the parties' oral agreements.

The court asked husband whether he had agreed to the terms stated in Dwyer's letter, and he answered yes. It was husband's adoption in open court of the terms stated in the letter rather than the letter alone that prompted the court to incorporate its terms in the November 4, 2011 order. That is to say, the court did not use Dwyer's letter to resolve disputed issues between the parties regarding the terms of their oral agreement.

"New Jersey has long espoused a policy favoring the use of consensual agreements to resolve marital controversies." J.B. v. W.B., 215 N.J. 305, 326 (2013) (quoting Konzelman v. Konzelman, 158 N.J. 185, 193 (1999)). Settlement agreements in family court matters are enforceable "to the extent that they are just and equitable." Lepis v. Lepis, 83 N.J. 139, 146 (1980) (quoting Schlemm v. Schlemm, 31 N.J. 557, 581-82 (1960)). As in other contexts involving contracts, a court must enforce such an agreement as the parties intended, so long as it is not inequitable to do so. See Pacifico v. Pacifico, 190 N.J. 258, 266 (2007).

Husband argues that the oral agreement he reached during mediation was not binding. This argument turns on the fact that he did not subsequently agree to the terms of a proposed consent order prepared by wife's attorney based on Dwyer's letter. A consent order was never entered and was not the basis of the court's ruling. The court's November 4, 2011 order enforced the parties' oral agreement as conceded by husband.

"[W]here the parties agree upon the essential terms of asettlement, so that the mechanics can be 'fleshed out' in a writing to be thereafter executed, the settlement will be enforced notwithstanding the fact that the writing does not materialize because a party later reneges." Harrington v. Harrington, 281 N.J. Super. 39, 46 (App. Div.) (quoting Lahue v. Pio Costa, 263 N.J. Super. 575, 596 (App. Div.), certif. denied, 134 N.J. 477 (1993)), certif. denied, 142 N.J. 455 (1995).

Dwyer's March 29, 2011 letter, if correctly categorized as a "mediation communication," was a statement of the freely reached agreement of the parties. Husband did not dispute any term of the agreement stated in Dwyer's letter, and no privileges were asserted when the court heard the parties' motions. The court did not err in enforcing the oral agreement and utilizing Dwyer's letter to establish its terms.

Point II Dr. Gordon's Role

Husband argues that the trial court erred in not ordering that Dr. Gordon's expert report be obtained and used as evidence before ruling on the cross-motions. He adds that the judge should have personally spoken to Dr. Gordon on the telephone to hear his evaluation of wife. He contends further that a best interest evaluation on behalf of the child is mandated by wife's mental health status, the circumstances of the home she and the child share with wife's parents, and wife's alleged personal relationship with her attorney, which wife denied in a certification in opposition to husband's cross-motion. Husband requests that we exercise original jurisdiction, see R. 2:10-5, to "order the court rules . . . be applied to [] Gordon's findings . . . ."

Dr. Gordon was not presented as an expert witness by either party, and he was not a court appointed expert pursuant to Rule 5:3-3. Furthermore, he had decided not to continue therapy for the parties. The court does not compel professionals to become expert witnesses in litigation. Nor is this an appropriate matter for the exercise of original jurisdiction by this court. See Tomaino v. Burman, 364 N.J. Super. 224, 234-35 (App. Div. 2003) (Appellate courts may exercise original jurisdiction but "only with great frugality . . . ."), certif. denied, 179 N.J. 310 (2004).

Husband's request that the court speak with Dr. Gordon on the telephone displays a fundamental misunderstanding of how the court takes evidence in a contested matter. Judges do not take evidence privately over the telephone. See R. 1:2-1 (except as provided in the Rules of Court, proceedings are to be conducted in open court); R. 1:2-2 (record maintained of court proceedings).

Point III Parenting Coordinator and Parenting Time

Husband seems to argue against the appointment of a parenting coordinator for two reasons that the court abdicated its own responsibility to decide custody and parenting issues, see P.T. v. M.S., 325 N.J. Super. 193, 215 (App. Div. 1999), and there was no reason to conclude in this case that the services of a parenting coordinator would be effective in resolving the parties' disputes. He also requests that we, as an appellate court, order various evaluations of the child and an investigation into the circumstances of wife's home and the participation of wife's parents in caring for the child.

The trial court did not abdicate its responsibility to decide contested issues simply because it commented that "hopefully there will be no future pleadings" if the parties utilize the services of a parenting coordinator.

With respect to husband's doubts about the usefulness of a parenting coordinator, the agreement he reached in mediation included the appointment of a parenting coordinator. Mediator Dwyer's March 29, 2011 letter set forth specific terms of that agreement, the proposed parenting coordinator's role, and the procedures for resolving continuing disputes. The trial court did not abuse its discretion in enforcing the terms of the agreement as recited in Dwyer's letter. See Brown v. Brown, 348 N.J. Super. 466, 475 (App. Div.) (appellate court defers to rulings of Family Part that are supported by substantial credible evidence), certif. denied, 174 N.J. 193 (2002).

As to defendant's request that we order a best interest evaluation to protect the safety and welfare of the child, in particular, to investigate his allegations of child abuse and the role of wife's mother and stepfather in providing care for the child, we note that husband did not make this request to the trial court, and his bare allegations on appeal without supporting evidence do not warrant our intervention. Husband made numerous referrals to the Division of Child Protection and Permanency (formerly the Division of Youth and Family Services or DYFS), as well as to the equivalent Pennsylvania child protection agency. Those agencies investigated and did not find any substantiation for husband's accusations.

Generally, issues not raised in the trial court will not be considered on appeal unless they affect the jurisdiction of the trial court or concern matters of substantial public interest. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). While husband is not precluded from presenting evidence to the trial court that a best interest evaluation should be conducted, this appeal does not properly present that issue for our review.

Under the same point heading, husband challenges the adequacy of the parenting time granted to him in the parties' PSA and also argues that wife interfered with his parenting time. He contends it was error for the trial court to decline to order make-up parenting time for him.

Again, the court was enforcing voluntary agreements of the parties, and nothing in the record indicates the agreements were unfair or detrimental to the child. There was no abuse of discretion in the court's decision not to provide relief on husband's continuing claim that he missed a weekend of parenting time.2

Point IV Child Abuse

Pursuing further his allegations of abuse, husband contends that wife "victimized" him with "domestic abuse" by interfering with his parenting rights, and that she "unilaterally against the persistent recommendations of the doctors kept the parties' child hearing impaired for three years of his life." He views her acknowledgment that he made numerous DYFS referrals as proof that she abused the child. He then alleges that wife's mother continues to suffer from the effects of an alleged abusive relationship with wife's father, who is deceased. He sums up these contentions by invoking the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, and requests that we assign the case to the Family Part's "violence" (FV) docket.

Husband makes accusations of child abuse without supporting evidence, and he misunderstands the jurisdiction of the court to address domestic violence under the PDVA. His DYFS and Pennsylvania referrals did not result in any action taken by the child protection agencies on behalf of the child. Furthermore, his claims of domestic violence are not supported by any allegations cognizable under our domestic violence statutes. See Cesare v. Cesare, 154 N.J. 394, 400-01 (1998) ("To subject a defendant to one of the remedies [of the PDVA], a plaintiff must first prove that the defendant committed an act of domestic violence, as defined by the statute. N.J.S.A. 2C:25-29(a). N.J.S.A. 2C:25-19(a) specifically defines domestic violence."). Husband's allegations, even if true, are not allegations of domestic violence as addressed in the PDVA.

Point V Disclosure of Income

Turning to more mundane matters, husband argues his financial privacy should not be invaded by a requirement that he disclose his income tax returns or his income from duty with the military reserves. The simple answer is that the parties agreed to disclose their 2010 tax returns. Such periodic financial disclosures are routine in the evaluation of ongoing child support obligations. See R. 5:5-3. The enforcement of the parties' PSA with respect to the disclosure of tax returns and other income was certainly a correct ruling of the court.

Point VI Freedom of Speech and Religion

Returning to the ethereal, husband argues that the trial court restricted his freedom of speech and religion by ordering that his pleadings not contain the name of an organization that he was in the process of creating, presumably to advocate for the rights of fathers in similar situations.3 Inexplicably, he describes as "advertisement" the inclusion on motion papers of the name and address of the law firm that represented wife, and he contends the trial court treated him unfairly as a pro se litigant because he was not permitted to advertise his assisting organization in the same way.

The court correctly ruled that only licensed attorneys and pro se parties may appear in court or submit papers on behalf of a litigant. R. 1:21-1(c). Husband's argument does not warrant additional discussion in a written opinion. R. 2:11-3(e)(1)(E).

Point VII Personal Attack on Wife's Attorney

Highly inappropriately, but not uncommon in matrimonial litigation, husband concludes his arguments by making personal attacks on wife's attorney. He adds a flourish to his admittedly unsubstantiated allegations by demanding that the attorney file a certification attesting to his "full compliance" with the Rules of Professional Conduct. The trial court properly warned husband to refrain from personal attacks and to focus on the disputed issues in the case. We need not say more. See ibid.

Affirmed.

1 The parties' briefs on appeal were filed in 2012. The delay in submitting the case for our decision was caused by a limited remand to the trial court on motion filed by one of the parties, but it appears that the trial court was not asked to take any further action. Almost two years after the remand, we ordered that the appeal be placed back on our calendar for disposition. Because the parties have not filed any supplemental papers since their initial briefs in 2012, and because they have not responded to our recent inquiries about the status of their disputes, we do not know whether changed circumstances have mooted some of the issues raised on appeal.

2 Husband claims wife did not provide parenting time on a weekend in October 2010. If that is his claim, the issue was or should have been addressed and resolved through the March 2011 mediation and agreement. If husband's claim is actually about an October 2011 weekend after the mediation, it appears that he was the one in need of changing the schedule during October 2011. As a general matter, our review of some emails in the record between the parties gives no indication that wife had an inclination to interfere with husband's parenting time.

3 According to wife's brief, the name of husband's nascent organization as stated on his pleadings was "God's Law Uniting People Struggling with Evil for Truth (GLUPSET) Non Profit Charity Law (in process of organizing)."