On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1870-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2007
Before Judges Sapp-Peterson and Messano.
Defendant Shari Celler appeals from a May 2, 2006, order denying her post-judgment motion to compel her former husband, plaintiff Philip Celler, to pay their son's tuition costs, and the July 25, 2006, order denying her motion for reconsideration. The record reveals that the parties were divorced on March 6, 2002, and pursuant to a dual judgment of divorce and property settlement agreement (PSA) entered the same day, they agreed to share joint custody of their son who was less than three years old at the time.
Pursuant to the PSA, plaintiff was designated the primary custodial parent, however, "[a]ll major decisions concerning the child's . . . education . . . and religious upbringing [were to] be joint and equal decisions." The PSA also provided 13. [Defendant] is contemplating the child going to a private school after his pre-school experience. The parties have been unable to reach an agreement as to the [plaintiff's] obligation to pay all or any part of said private school education. This issue is reserved for further discussion between the parties or further Court Order at the time the situation arises.
15. The parties have been unable to agree upon whether or not the [plaintiff] should have any responsibility for the child's Bar Mitzvah. This issue shall be discussed at the time the child is ready for his Bar Mitzvah and if an agreement cannot be reached, either party may make an application to the Court regarding the same.
These two provisions provide the context for defendant's appeal.
In March 2003, the parties filed cross-motions seeking various relief. These applications resulted in the entry of two consent orders that provided, among other things, that 1) payment for "private elementary school [would] not be required by the court but the parties [were] free to confer in the future regarding same;" and 2) that "[b]oth parties [were] . . . ordered to mediate the future issue of the[ir] son['s] attendance at Hebrew School . . . when these issues arise and before any motion is filed."
As contemplated by the PSA, defendant moved to Florida with the child. Plaintiff, meanwhile, remarried and had a son with his second wife. In March 2005, he filed a motion seeking to reduce his child support payments. Defendant responded by filing opposition and a cross-motion seeking, among other things, to compel plaintiff to contribute to their son's private and Hebrew school tuition.
A different Family Part judge heard the applications and entered two orders dated March 18, 2005.*fn1 He denied plaintiff's request for a downward modification of support, ordered the parties to engage in discovery, and ordered a forensic accountant to audit plaintiff's business. The judge denied defendant's request to have plaintiff pay for their child's private school, "without prejudice," and denied her request to have him pay for Hebrew school.
After the forensic accounting was completed, the parties still could not agree on any appropriate downward modification of plaintiff's support obligations, and further motion practice ensued.*fn2 Plaintiff again sought a revision and defendant again opposed the application. She also cross-moved for additional relief including the payment of private school and Hebrew school tuition for their son.
Defendant's certification in support of her cross-motion included evaluations from her son's psychologist, Philip J. Lazarus, who diagnosed the child with attention-deficit hyperactivity disorder (ADHD). Lazarus opined that the boy "would profit from a well structured small classroom environment (approximately ten to fifteen students) that is highly organized and where firm behavioral limits are maintained." Lazarus also stated that the private school chosen by defendant would "meet [the child's] academic and behavioral needs." The child's speech pathologist recommended a school placement "sensitive to [his] communication needs" with "minimal communicative and/or interpersonal stress." Defendant argued the needs of her son would not be addressed by the Florida public school system given its average class size. Defendant's cross-motion also sought to have plaintiff pay for their son's attendance at Hebrew school claiming that despite his age -- he was only six -- religious training in anticipation of his bar mitzvah was necessary.
Plaintiff's opposition to the cross-motion noted that these issues were previously decided in 2003 when consent orders were entered, and further argued that defendant had previously extolled the virtues of the Florida school system as a basis for moving their son from New Jersey in the first instance. He also noted that neither of defendant's expert medical ...