N.G. v. N.B.G.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

N.G.,

Plaintiff-Respondent,

v.

N.B.G.,

Defendant-Appellant.

____________________________

November 14, 2013

 

Submitted October 21, 2013 Decided

 

Before Judges Parrillo and Harris.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-1488-10W.

 

Jay Turnbach, attorney for appellant.

 

Atkinson & DeBartolo, P.C., attorneys for respondent (Matthew R. Abatemarco, of counsel and on the brief).

 

 

PER CURIAM

Defendant N.B.G. appeals from a post-divorce judgment order of the Family Part denying his request for the appointment of a parenting coordinator and more parenting time. For the following reasons, we affirm in part and reverse and remand in part.

Defendant and plaintiff N.G. were married on September 8, 2001, and are the parents of two children, a daughter born in 2007, and a son born in 2008. Plaintiff is a pharmaceutical representative and defendant is a pilot. According to plaintiff, there was domestic violence during the marriage, culminating in an incident in April 2010 wherein defendant "grabbed [plaintiff] and threw [her] to the ground, threw objects at [her], held [her] down on the bed, ripped the phones off the wall and smashed the phones on the ground." As a result of this incident, a final restraining order (FRO) was issued on April 22, 2010.

Fourteen months later, on June 30, 2011, the parties divorced. A property settlement agreement (PSA) was incorporated into the Final Judgment of Divorce (FJD) and included, among other things, finding contained in the preliminary report of Dr. William Frankenstein, whom the parties had hired to perform a custody evaluation. Based on those findings, the PSA provided for joint legal custody of the two children, with plaintiff designated as the parent of primary residence and both parents jointly making decisions "concerning the children's health, education, safety and welfare . . . ."

As to visitation, the PSA provided that defendant would have the children every other weekend and every Wednesday. Pursuant to Section 3.1(b) of the PSA, the parties stipulated that they:

shall revisit the time share schedule in a one year period to provide for a possibility of increased parenting time in accordance with the recommendation of Dr. Frankenstein as incorporated herein. In the event the parties are unable to agree to a modification then either party reserves their right to seek the court's intervention for a de novo review of the parenting schedule.

 

Despite the existence of the FRO, the PSA further provided, in Section 3.2, that "the parties shall retain a parenting time coordinator to resolve all parenting related issues in the event same is needed."

Predictably, a problem did arise as early as February 2012, due to defendant's work schedule as a pilot, prompting him to request makeup parenting time, as well as additional visitation every Tuesday or Thursday. After repeated requests went unsatisfied, in a July 26, 2012 e-mail, defendant reminded plaintiff of the PSA provision stating that they "would revisit the time share in one year or, 30 June 2012." Plaintiff responded in a July 31, 2012 e-mail that she did "not think it's in the children's best interest to modify the parenting schedule."

As a result, defendant moved to, among other things, enforce the PSA, more specifically to order the parties to jointly retain a parenting coordinator within fourteen days and to grant defendant extended parenting time with the children. Plaintiff cross-moved to deny defendant's motion in its entirety and for various other forms of relief. Following argument, the judge denied defendant's motion for a parenting coordinator due to the existence of the FRO, but left open the possibility that if circumstances changed, section 3.2 of the PSA could be enforced. The judge also denied, without prejudice, defendant's request for extended parenting time, stating that while the PSA expressly allowed for such an application by defendant, based on the motion record, there was no "big change" in circumstances that would lead her to believe it would be in the children's best interests to have additional time with defendant.

This appeal follows in which defendant raises the following issues:

I. A MUTUAL MISTAKE BY THE PARTIES' COUNSEL SHOULD NOT DEPRIVE FATHER OF THE BENEFIT OF THE BARGAIN HE NEGOTIATED IN THE PSA ALLOWING FOR A MECHANISM TO ACHIEVE INCREASED PARENTING TIME AND BETTER CO-PARENTING INTERACTION BETWEEN THE PARTIES.

 

II. ALTERNATIVELY, NO EXISTING LAW PROHIBITS THE USE OF PARENTING COORDINATORS BETWEEN PARTIES WHO HAVE A FINAL DOMESTIC VIOLENCE RESTRAINING ORDER BETWEEN THEM, THUS THE PSA SHOULD BE ENFORCED.

 

Family courts have special jurisdiction and expertise in family matters; accordingly, we accord deference to their fact finding. Cesare v. Cesare, 154 N.J. 394, 413 (1998); N.H. v. H.H., 418 N.J. Super. 262, 279 (App. Div. 2011). Moreover, their findings of fact will only be disturbed if they are "'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).

By the same token, we are not required to defer to the Family Part's legal analysis because "the trial judge's interpretation of the law and the legal consequences that flow from the established facts" are not entitled to any special deference. Barr v. Barr, 418 N.J. Super. 18, 31 (App. Div. 2011) (citing Zabilowitz v. Kelsey, 200 N.J. 507, 512-13 (2009)).

We are satisfied that the Family Part judge properly denied the appointment of a parenting coordinator. Even though bargained for in the PSA, it is clear that such a provision cannot be enforced when there remains a FRO in effect governing the parties' relationship. In April 2007, the Administrative Office of the Courts (AOC) issued a notice to the bar pertaining to the Parenting Coordinator Pilot Program. The guidelines stated that "no case may be included in this pilot program if it has a temporary or final restraining order in effect pursuant to the Prevention of Domestic Violence Act (N.J.S.A. 2C:25-17 et seq.)." Notice to the Bar: Parenting Coordinator Pilot Program - Program Guidelines and Related Material, 188 N.J.L.J. 169 (Apr. 9, 2007), available at http://www.judiciary.state.nj.us/ notices/2007/n070403a.pdf; see also Milne v. Goldenberg, 428 N.J. Super. 184, 204-05 (App. Div. 2012). The fact that the pilot program itself was discontinued on November 26, 2012, does not remove the legitimacy of the underlying reason for the prohibition, which remains as compelling as ever. Indeed, even defendant appears to concede the inappropriateness of using parent coordinators in matters with open restraining orders. Thus, while "parties to a matrimonial dispute may agree to comply with defined obligations regarding their use of a [parenting coordinator], such use must not "violate the public policy of this State." Milne, supra, 428 N.J. Super. at 204. In any event, a parenting coordinator "may not substitute for a judge's determination in contested parenting issues pending before the Family Part." Id. at 205.

That, however, does not end our inquiry. Although we reject the notion that defendant had a reasonable expectation that his parenting time would be increased based on a parenting coordinator's recommendations, we nevertheless do find he was entitled to a fair and meaningful consideration of his request for extended visitation with his children, which, in our view, he did not receive.

Section 3.1(b) of the PSA states that the "parties shall revisit the time share schedule in a one year period to provide for a possibility of increased parenting time in accordance with the recommendation of Dr. Frankenstein[.]" (emphasis added). In his preliminary report, Dr. Frankenstein asserted that plaintiff should continue as the parent of primary residence, "with the understanding that in time, when it is appropriate for the children developmentally, movement towards some more shared or joint residential custody will be recommended[.]" Moreover, Section 3.1(b) of the PSA goes on to assert that "[i]n the event the parties are unable to agree to a modification then either party reserves their right to seek the court's intervention for a de novo review of the parenting schedule."

When, therefore, plaintiff rejected defendant's request for additional visitation, defendant quite properly sought judicial intervention, as the PSA clearly envisioned. By then, the one- year interregnum had lapsed and by consensual agreement, the parties were to revisit the issue of increased parenting time for defendant, regardless of whether a parenting coordinator had first been appointed to make recommendations or facilitate its resolution. Whether or not defendant's reliance on such an appointment was reasonable, his expectation that the matter be thoroughly reviewed and considered certainly was. In fact, the PSA expressly contemplated the possibility of more parenting time for defendant. What defendant received instead, however, was a blanket rejection by plaintiff, who viewed defendant's request as not in the "children's best interest," and an equally conclusory denial by the motion judge, whose entire reasoning follows:

As to the extended parenting time, there has been, rightfully so, that the defendant has brought a motion because of the provision in the Property Settlement Agreement which allowed for him to revisit this schedule for increasing parenting time based upon what was in here from Dr. Frankenstein and to be able to consider whether another day would be possible. I am hesitant in the sense that as the children get older that there is a decent amount of time here of the alternate residence with the defendant from the every other weekend and every Wednesday overnight which is actually more than usual. I respect for what they have agreed to in the [Property] Settlement Agreement, but from what's been presented to the Court in the pleadings and what I've heard today I don't know at this juncture that it's appropriate to be just extending parenting time just based upon the fact that it was considered that they should take a look at it to see if there was some big change here that I believe that it was in the best interest of the children for them to have another day. But I don't see that as being shown to me here for me to modify this schedule at this time.

We find this result unpersuasive and bereft of the requisite findings of fact and conclusions of law. See R. 1:7-4; see also Curtis v. Finneran, 83 N.J. 563, 570 (1980); Monte v. Monte, 212 N.J. Super. 557, 565 (App. Div. 1986). Moreover, the court's search for the "big change" was misdirected, as its inquiry should have focused instead on the children's best interest, and its ultimate disposition based on a "de novo review," as expressly envisioned in the PSA. In other words, defendant is entitled to a decision fully informed by the facts to be developed, and whatever expert proofs may be adduced, at a plenary hearing. Such a proceeding is required, given the conflicting perceptions and perspectives of the parties here, as well as the passage of time and intervening events. This proceeding, which may include the recommendations of an independent evaluation directed by the court, will not only best effectuate the express intent of the PSA and the reasonable expectations of both parties, but more importantly result in a determination based soundly on the evidence and the applicable law.

Affirmed in part; reversed in part and remanded for further proceedings consistent with this opinion.