LISA CESTONE v. VINCENT CESTONE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

LISA CESTONE, n/k/a LISA

SOPER,

Plaintiff-Appellant,

v.

VINCENT CESTONE,

Defendant-Respondent.

_________________________________

November 24, 2014

Argued October 7, 2014 - Decided

Before Judges Yannotti and Whipple.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM-09-2355-12.

Lisa Cestone n/k/a Lisa Soper, appellant pro se.1

Stephen P. Haller argued the cause for respondent (Einhorn, Harris, Ascher, Barbarito and Frost, P.C., attorneys; Mr. Haller, of counsel and on the brief; Jennie L. Osborne, on the brief).

PER CURIAM

Plaintiff appeals from orders entered by the Family Part. According to the amended notice of appeal filed on June 27, 2013, plaintiff challenges orders dated April 16, 2013, May 6, 2013, May 28, 2013, May 31, 20132, and June 19, 2013.3 4 We affirm.

This case has a long and litigious history following the parties' divorce and joint custody agreement. On June 21, 2007, the parties consented to a Dual Final Judgment of Divorce, which incorporated the terms of an agreement dated March 28 of the same year. Three children were born of the marriage: I.C., N.C., and A.C. The final judgment provided that the parties would share joint custody of the children, the children would live primarily at plaintiff's residence, and the parties would utilize the services of a parent coordinator. Pursuant to the final judgment, it was ordered that the parties would continue in parent coordination with Dr. Mathias Hagovsky for three months.

The parties entered into an agreement entitled "Mediation Agreement/Parent Coordinator and Fee Schedule" on March 17, 2009, which states, "The undersigned parties agree to use mediation services provided by Lum, Drasco & Positan, LLC, Judge Richard C. Camp, retired, in order to resolve their dispute regarding Lisa Cestone vs. Vincent Cestone (reunification of oldest child with her father)." By order of August 21, 2009, the parties consented to Richard C. Camp, Esq. continuing as parent coordinator, and the order outlined a plan to reintegrate, through the use of therapists, I.C. into a parenting schedule with the other children. The relationships have not improved since that time.

On February 17, 2012, the Family Part judge in Essex County denied plaintiff's motions to recuse himself, disqualify Camp as parent coordinator, and change venue. Venue was transferred from Essex to Hudson County on February 28, 2012.

On October 12, 2012, the trial court denied an application by defendant for sole custody of the two younger children and restrictions on plaintiff's contact with them, appointed various therapists for the children, required defendant to pay the majority of the corresponding therapy fees, and held that I.C. was to have several hours of parenting time with defendant each week on Tuesday evenings. The trial court also appointed a guardian ad litem for I.C.

On April 16, 2013, the trial court entered one of the currently contested orders, denying plaintiff's motion for recusal of Camp as parent coordinator. The trial court specifically noted that, after review of the record, it found no conflict at any time in Camp serving as coordinator, and emphasized that both parties had previously consented to him serving as such. Additionally, the trial court found that Camp appeared before the court as a mediator and not an attorney, in accordance with the statewide pilot program for parent coordinators and rules governing the practice of retired judges.

The trial court held that plaintiff was "in violation of litigant's rights" for refusing to comply with the order of October 12, 2012, by "failing and refusing to comply . . . [with the requirement that she] find, and identify to Richard C. Camp and defendant, a therapist . . . ." The court required defendant to advance the retainer fees of court-appointed therapists, while the court would determine an appropriate amount for plaintiff to contribute to such retainers after review of her Case Information Statement and other documents relating to her finances. The court held that once an appropriate contribution was determined, such would be paid through "a lien on plaintiff's house for reimbursement to defendant."

On April 19, 2013, we denied plaintiff's request to file an emergent motion seeking to overturn the trial court's April 16, 2013 order. On April 26, 2013, plaintiff filed a Notice of Appeal of the April 16, 2013 order.

On May 28, 2013, the trial court entered another order, rejecting plaintiff's argument that Camp, as parent coordinator, could not address the court, finding as a matter of fact and law that Camp was not in violation of Directive # 5-08 of our Supreme Court or any other directives, and emphasizing that Camp had provided valuable service to the parties and their children over the course of several years since he was appointed by consent. The trial court also entered an order finding it in the best interests of I.C., N.C., and A.C. to have passports, finding that plaintiff refused to obey a court order directing her to seek such passports, and vesting authority and charging defendant with doing so. On May 30, 2013, we denied plaintiff's request to file an emergent motion seeking to stay the trial court's May 28, 2013 order, noting that plaintiff did not first seek a stay from the trial court.

On June 27, 2013, plaintiff filed an Amended Notice of Appeal. On July 9, 2013, the Family Part judge entered an order relating to proceedings conducted on June 19 of the same year. The order provided for a warrant for plaintiff's arrest and incarceration if she did not attend a court-ordered appointment with a family therapist, and was based on "a pattern of continuous and continued violation of Court Orders that plaintiff has exhibited." On the same day, the court also entered an order staying the matter pending review by this court, specifically staying the sanctions imposed on May 31, 2013, as well as suspending Camp's involvement as parent coordinator pending appeal.

On appeal, plaintiff argues that the court erred in denying the motion to recuse the parent coordinator because the coordinator had a conflict of interest as a mediator and retired judge, that the court erred in placing a lien against her house, and, for the first time on appeal, that the trial court should be recused and venue transferred because the court allegedly made a statement that it rarely listens to plaintiff or reads her papers. Having reviewed these arguments in light of the record and applicable legal standards, we affirm.

Plaintiff argues that Camp should have been disqualified as a parent coordinator because he was a retired judge, in violation of Directive # 5-08. Plaintiff also argues that Camp should have been disqualified because he testified in court in violation of his duty of confidentiality as a mediator.

The trial court found no conflict preventing Camp from serving as parent coordinator and held that he was in compliance with the rules governing the practice of retired judges. The court found that Camp's appearance before the court was proper and held as a matter of fact and law that Camp had done nothing to violate Directive # 5-08, emphasizing that the parties had previously consented to him serving as parent coordinator.

Directive # 5-08 prohibits retired judges from serving as attorneys in contested matters in New Jersey state courts, testifying as expert or character witnesses, and accepting "fee-generating court-initiated appointments" except when both qualified through training and experience and providing "the first two hours of mediation at no cost to the litigants . . . ." Moreover, communications and conduct during mediation are confidential, unless confidentiality is expressly waived by all parties or substantially outweighed by the need for disclosure. Lehr v. Afflitto, 382 N.J. Super. 376, 391 (App. Div. 2006); see also R. 1:40-4; N.J.S.A. 2A:23C-8. A parent coordinator serves in a different role, with a different set of obligations. In this case, Camp's role was as a parent coordinator.

Nowhere in her legal argument does plaintiff provide specific support for her position that Camp was conflicted or that he was in violation of Directive # 5-08. Similarly, plaintiff has provided no support for the assertion that Camp disclosed any confidential information obtained in mediation. While the parties and Camp executed a Mediation Agreement/Parent Coordinator and Fee Schedule, Camp did not serve as a mediator.

Although parent coordination involves some mediation techniques, it primarily involves facilitation of day-to-day parenting issues that frequently arise within the context of family life when parents are separated and cannot resolve issues on their own. Moreover, a parenting coordinator reports to the court. Pursuant to the Guidelines of the Parenting Coordinator Pilot Program, April 3, 2007

A Parenting Coordinator may be a social worker, a psychologist, a psychiatrist, or a marriage and family therapist who shall be licensed to practice in the State of New Jersey by the appropriate State Board and agencies. If the parties consent, the court may designate as Parenting Coordinator a non-mental health lay person unrelated to either party or an attorney licensed in the State of New Jersey, so long as such individual is qualified by experience and/or training.

Here, the record contains correspondence to the court from Camp as parent coordinator. He reported to the court in that capacity. The parties selected and agreed that Camp would serve as parenting coordinator, and there is no suggestion that he was unqualified to do so. Accordingly, we see no basis to overturn the trial court's determination.

Plaintiff next argues that the trial court improperly placed a lien on her house without examining the parties' abilities to pay and impermissibly threatened to incarcerate plaintiff if she failed to pay the court-appointed therapists in violation of Rule 1:10-3. Plaintiff further contends that the court found that she could earn $65,000 annually and pay $20,000 monthly to the therapists, and plaintiff asserts that the court placed a $133,000 lien on her home and "took 100% of the equitable distribution that was already settled on [eight] years ago in the final judgment."

The trial court ordered that a lien would be placed on plaintiff's house, but with the appropriate amount for plaintiff to contribute to therapists' fees to be determined later. The court did not make any earning or ability-to-pay determinations, did not take plaintiff's equitable distribution, and did not specify a $133,000 lien on the home in the April 16, 2013 order. Plaintiff's allegations to the contrary have no foundation in the record.

The only record of an ability-to-pay hearing before this court is defendant's assertion that the trial court held an ability-to-pay hearing on September 25, 2013, for which no order has yet been entered. Thus, the issue is not properly before this court on appeal.

The Family Part judge did, however, find plaintiff "in violation of litigant's rights" for refusing to comply with the order of October 12, 2012. Violation of litigant's rights can lead to relief pursuant to Rule 1:10-3. R. 5:7-5(a). "On finding that a party has violated an order respecting custody or parenting time" a court may order economic sanctions, counseling for parties and/or children at the expense of the party in violation of the order, or "issuance of a warrant to be executed upon the further violation of the judgment or order." R. 5:3-7; see also R. 1:10-3 ("In family actions, the court may also grant additional remedies as provided by R. 5:3-7."). In light of the trial court's broad authority and discretion to grant relief to a litigant whose rights have been violated, plaintiff's arguments that the lien was improper and the threats of incarceration were impermissible are without merit.

Plaintiff argues for the first time on appeal that the Family Part judge should be recused from this case and the matter transferred to another venue. In support of these arguments plaintiff repeats her arguments regarding the disqualification of Camp as parent coordinator. Further, plaintiff claims that the New Jersey judiciary can no longer be impartial because plaintiff made statements to the Federal Bureau of Investigation, and claims that the court at some point said, "'we rarely listen to any statement made by the Plaintiff- we actually rarely read her papers at all.'"

The trial court did not have an opportunity to consider these issues, as plaintiff never moved for recusal or transfer of venue. Appellate courts will typically decline to consider issues not properly raised to the trial court when there was an opportunity to do so, unless the issues pertain to the jurisdiction of the trial court or matters of significant public interest. State v. Robinson, 200 N.J. 1, 20 (2009).

"A motion for recusal must be made to the judge sought to be disqualified." Magill v. Casel, 238 N.J. Super. 57, 63 (App. Div. 1990); see also R. 1:12-2. If not raised by a party's motion, the judge of any court must be disqualified on the court's own motion "when there is any . . . reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so." R. 1:12-1(g). "[B]efore the court may be disqualified on the ground of an appearance of bias, the belief that the proceedings were unfair must be objectively reasonable." State v. Marshall, 148 N.J. 89, 279, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Similarly, "change of venue may be ordered . . . if there is a substantial doubt that a fair and impartial trial can be had in the county where venue is laid." R. 4:3-3(a).

Here, plaintiff's arguments were not properly brought before the Family Part judge for consideration. In any event, plaintiff's factual allegations concerning statements made by the court have no basis in the record. Plaintiff's argument regarding Camp's participation in the case as a parent coordinator has already been addressed. Plaintiff's claim that the entire New Jersey judiciary cannot be impartial is both without merit and incapable of providing support for her request to transfer venue. Under Marshall, Magil, and the relevant court rules, there is no reason to find the trial court incapable of fairly handling this case, thus both recusal and change of venue are unwarranted.

We have considered plaintiff's other arguments and find them to be without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed.

1 Appellant waived oral argument and did not appear.

2 A copy of the order from May 31, 2013 is not contained in the record before us. We note that one of the trial judge's orders of July 9, 2013 stayed the sanctions issued on May 31, 2013 pending our review.

3 We note that the record indicates no orders were entered on May 6, 2013 or June 19, 2013. These dates appear to be dates upon which other orders, including one of the orders of July 9, 2013, were processed.

4 Plaintiff filed an emergent motion seeking to stay a November 20, 2013 order dismissing her domestic violence complaint (FV-09-1343-13) and a November 20, 2013 order modifying, in part, an existing parenting time arrangement. We denied her motion. She has not included those orders in this appeal.