JOSEPHINE S. PENZA v. ROBERT A. PENZA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1819-09T2

JOSEPHINE S. PENZA,

Plaintiff-Appellant,

v.

ROBERT A. PENZA,

Defendant-Respondent.

December 16, 2010

Submitted November 8, 2010 - Decided

Before Judges Sabatino and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-687-02.

Adinolfi & Goldstein, P.A., attorneys for appellant (Sarah N. Martine, on the brief).

Borger Jones Matez & Keeley-Cain, P.A., attorneys for respondent (Bruce P. Matez, on the brief).

PER CURIAM

Plaintiff Josephine Penza appeals an order entered on November 18, 2009, which she asserts erroneously modified a provision in a judgment entered in July 2003 after a divorce trial. For the reasons stated below, we affirm.

One child was born to plaintiff and defendant Robert Penza, a daughter. Plaintiff's brief estimates that there have been forty-two post-judgment motions filed in the intervening six years since the divorce was granted. The judge who entered the order being appealed indicated that this was the third time she had presided over the parties' disputes regarding their child.

Few issues were agreed to by the parties in the divorce action; the divorce judge therefore detailed the manner in which decisions would be made related to the child's welfare. Although plaintiff was designated the primary residential parent, the custody section of the divorce judgment requires that: "[t]he parties should consult with one another on an ongoing basis in accordance with the following framework designed to give the parties some direction . . . ." The obligation imposed on the parents to consult, discuss, and confer with one another is reiterated in several paragraphs. Paragraph five of the custody section specifies: "[o]n other matters, such as selection of medical professionals, school programs, and school curriculum, the [p]laintiff, Josephine Penza[,] will make the decision after consultation with the [d]efendant, Robert Penza."

The motion judge issued the November 18, 2009, order being appealed after consideration of certifications submitted by the parties, as well as counsel's oral arguments. Two days earlier, on November 16, 2009, defendant had filed an order to show cause with the trial court, seeking to restrain plaintiff from withdrawing the parties' daughter from Christ the King School, which she had attended from kindergarten through the fifth grade. The motion judge denied the relief and permitted the child to remain at the school where plaintiff had transferred her, St. Joan of Arc.

After reflecting upon the contentious history of the case and the child's best interests, the motion judge modified plaintiff's decision-making authority, granted in the divorce judgment, as to the child's schooling. The motion judge directed that "[p]laintiff shall make an application to the Court before making a decision to change [the child's] school in the future. The parties are free to come to their own agreement, by contacting their attorneys, regarding a new school." The court also denied both parties' application for counsel fees. Plaintiff raises the following points:

I. THE TRIAL COURT ERRED WHEN REQUIRING THE PLAINTIFF TO FIRST FILE AN APPLICATION WITH THE COURT, PRIOR TO CHANGING THE PARTIES' DAUGHTER'S SCHOOL

A. The Trial Judge Determined That Ms. Penza Had Consulted With Mr. Penza Regarding a Change in [the child's] Schooling, as Required, and She Did Not Find a Change in Circumstances Warranting a Change in the Law of This Case. Thus, the November 18, 2009 Order Improperly Modifies the Orders Previously Entered in This Case.

B. The Trial Judge Abused Her Discretion In Restraining Ms. Penza's Ability to Change [the child's] School as this Relief Was Not Requested by Either Party.

II. THE TRIAL JUDGE ERRED IN FAILING TO AWARD COUNSEL FEES TO THE PLAINTIFF UNDER RULE 5:3-5(C)

Plaintiff contended that she transferred the child from one school to another because the principal of Christ the King met with the child regarding her failure to tell her father about a school event in which she was a participant. Plaintiff believed that the father and the principal had become friendly and thereby formed an inappropriate alliance to her detriment. She claimed that the meeting between principal, teacher, and child was so traumatic that the child justifiably refused to return to the school. Nonetheless, the child had always done well at Christ the King, and plaintiff was active in the school community, including substantial involvement with the Parent Teacher Association. Defendant denied having been consulted by plaintiff prior to the move, and he objected to the transfer being made in the absence of consultation.

On appeal, plaintiff seeks to limit the obligation imposed upon her in the divorce decree to merely informing defendant of her decisions after they are made. Her interpretation of the relevant language is that she and she alone has the exclusive right to make final decisions. Defendant differs, asserting that the obligation to consult would be meaningless if plaintiff is correct, and that such a reading was not intended by the matrimonial judge who had presided over the divorce.

Because of the ongoing conflict, and the admittedly unilateral transfer of the child from one school to another, the trial court found a change of circumstances had occurred which warranted modification of the relevant provision in the divorce. It was for this reason that she ordered that any future changes in the child's school required application to the court or mutual agreement through counsel.

We do not disturb a trial court's factual findings unless unsupported by "adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). And we pay particular deference to the Family Part's expertise. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). In this instance that deference to the motion judge's credibility determinations and "feel for the case" is uniquely appropriate based on her prior opportunities to address disputes between these parents. Id. at 411-12; see also Pascale v. Pascale, 113 N.J. 20, 33 (1988). We accord particular deference not only to the fact-finding by judges of the Family Part, but to the conclusions they reach which logically flow from their findings. Cesare, supra, 154 N.J. at 412-13.

The standard of review on matters of custody and parenting time is similar. The conclusions of trial judges regarding child custody are "entitled to great weight and will not be lightly disturbed on appeal." DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976); see also Sheehan v. Sheehan, 51 N.J. Super. 276, 295 (App. Div.), certif. denied, 28 N.J. 147 (1958).

The motion judge stated that she was troubled by plaintiff's "knee jerk" reaction in removing the child from a school she had attended with success for many years based on a single meeting between the child and school staff. The judge's concern was valid. The record amply supports her decision to modify the divorce decree to ensure that decisions are reached in the child's best interest based on both parents' reasonable exercise of judgment.

Plaintiff contends that, in some fashion, court-ordered arrangements after contested custody cases should require a higher showing of changed circumstances than consensual agreements. That position has no support in fact or law. The analysis is the same whether in the context of agreements or judicial decrees. See Lepis v. Lepis, 83 N.J. 139, 149-50 (1980). And the analysis supports the motion judge's perception that plaintiff's failure to consult meaningfully with defendant and her exercise of judgment, which can at least be characterized as "hasty," constituted a change of circumstances necessitating a change in the relevant sections of the divorce judgment.

Plaintiff also appeals the motion court's denial of the counsel fees that she requested. Such fees are discretionary, and "unless an award represents an abuse of discretion, we ordinarily will not disturb that award on appeal." Chestone v. Chestone, 285 N.J. Super. 453, 468 (App. Div. 1995). When considering the propriety of a counsel fee, the trial court examines the reasonableness and good faith of the positions advanced by the parties in addition to a host of other factors including their financial circumstances and ability to pay their own fees. R. 5:3-5(c).

The court found in this case that defendant's application contesting the school transfer was made in good faith. The judge also found both parties were exercising inappropriate control over their child and were engaging in unnecessary conflicts to her detriment. No mention was made by either plaintiff or defendant of their financial circumstances. Plaintiff did not provide to the court any information that would have enabled it to make a more detailed decision or engage in more substantial fact-finding with regard to her request. The motion judge cannot be expected to award fees where the equities do not mandate them and in an informational vacuum. We see no abuse of discretion here.