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Mauriello v. Mauriello

February 5, 2008

DAVID MAURIELLO, PLAINTIFF-RESPONDENT,
v.
DIANE MAURIELLO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-135-01.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 17, 2007

Before Judges Sapp-Peterson and Messano.

Defendant Diane Mauriello appeals from the August 9, 2006 order transferring primary residential custody of her daughter to her former spouse, plaintiff David Mauriello. We affirm.

Plaintiff and defendant were married on August 28, 1994. They have one child from the union, S.M., born September 21, 1997. Subsequently, the parties divorced, and the Dual Judgment of Divorce (JOD) granted to them on February 14, 2002, contained a Property Settlement Agreement (PSA) that addressed custody, child support, and visitation issues.

The PSA called for joint legal custody of S.M., with primary residential custody awarded to defendant. Additionally, the agreement called for an alternate weekend parenting schedule and also provided for a holiday and vacation schedule. Of significance to the present matter are Paragraphs 8 and 13 of the PSA under the heading "CUSTODY AND PARENTING TIME." Paragraph 8 provides:

[P]ick up and drop off shall be at [defendant]'s residence, provided that said residence is within a thirty mile radius of [plaintiff]'s residence. Should [defendant]'s residence be more than thirty miles from that of [plaintiff], then in that event [plaintiff] shall pick up and drop off [S.M.] at [defendant]'s residence during the week, and [defendant] shall pick up and drop off [S.M.] at [plaintiff]'s residence for [plaintiff]'s weekend parenting time.

Under Paragraph 13, the parties agreed that if a dispute arose regarding parenting time, they would resolve the matter between themselves, and in the event they were unable to do so, "then they shall attend mediation prior to litigating the matter in court."

Defendant and S.M. relocated to Budd Lake in June 2002. Subsequently, in June 2004, plaintiff, who had remarried, relocated to Warwick, New York with his new wife Kimberly. Warwick is located more than thirty miles from Budd Lake. Plaintiff informed defendant that under the PSA, defendant was to drive S.M. to plaintiff's residence on the weekends that plaintiff had S.M. Defendant refused to do so and took the position that "since [plaintiff] moved more than 30 miles away[,] that he should do the driving." The parties ultimately compromised, and during the 2004 Christmas holiday season, met halfway between their residences to transport S.M. for her visitation with plaintiff. After the holidays were over, plaintiff retained counsel, who wrote defendant a letter listing plaintiff's complaints concerning the transportation dispute. Defendant did not respond to the letter. As a result, in April 2005, plaintiff filed a post-judgment motion to compel defendant to comply with the parenting time and transportation provision of the PSA. Defendant did not respond to the motion.

On June 2, 2005, the trial court entered an order that directed both parties to attend mediation with a court-appointed mediator, Tobie G. Meisel (Meisel). In the interim, the order required defendant to pick up and drop off S.M. at plaintiff's residence in accordance with the PSA. Paragraph 10 of the order stated, "[i]n the event that the terms of this Order are not complied with, and an application to the Court is made, the Court may consider in lieu of monetary sanctions, a transfer of custody[.]" Defendant did not contact or meet with Meisel, nor did she file an appeal from the court's order.

On July 28, 2005, plaintiff filed a second motion to enforce litigant's rights, claiming that defendant refused to transport S.M. to his residence for weekends, in accordance with the court's June 2, 2005 order and the PSA, and that defendant did not attend mediation. Again, defendant did not respond to the motion. On the return date of the motion, August 19, 2005, the court found defendant in "violation of litigant's rights in failing to provide weekend transportation for plaintiff's visitation and [to] cooperate with [the] court-appointed mediator." The court denied plaintiff's request for an immediate transfer of custody, but ordered Meisel to submit a report on the effect a transfer of custody would have upon S.M. Prior to submitting his report to the court, Meisel interviewed plaintiff, defendant, and the minor child. He did not perform a full comprehensive custody evaluation but simply focused on the effect that a transfer of custody would have on S.M., who was eight years old at the time.

In his report, Meisel recommended that the court grant primary residential custody to plaintiff and that defendant seek treatment for depression. Meisel indicated that he considered many factors in reaching this decision, including S.M.'s comments that her mother did not like to do chores but preferred spending time in her pajamas; that S.M. spent most of her weekends with defendant indoors and was rarely permitted to go outdoors; that when S.M. is with plaintiff, she worries about defendant being alone and not doing anything; S.M.'s self-portrait showing her crying because she was worried about defendant; and S.M.'s wish to spend more time with plaintiff.

On December 1, 2005, the parties appeared for a conference with the court. Defendant was represented by counsel, whom she had retained after the court entered its August 19, 2005 order. During the conference, the court appointed Dr. Judith Brown Greif (Dr. Greif) to conduct a residential custody evaluation. The court also permitted the parties to retain their own experts.

As part of Dr. Greif's evaluation, she interviewed S.M.; defendant; plaintiff; plaintiff's spouse, Kimberly; the court-appointed mediator, Meisel; and S.M.'s third grade teacher. Dr. Greif reported that S.M. "appears to have a close and comfortable attachment to both parents" but that she expressed concern about how her mother would cope if she spent less time with her. S.M. told Dr. Greif that both parties wanted her to live with them, but that her mother ...


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