On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, FM-15-990-00W.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically May 1, 2008
Before Judges Wefing, Parker and Koblitz.
In this post-judgment matrimonial matter, defendant, Abraham J. Ort, appeals from an order dated November 3, 2006, which denied defendant's application for a change in the method of delivery of letters, cards and gifts to his eight unemancipated children, aged six through twenty. It also denied defendant's application to be permitted to send the items to a neutral site, rather than the children's schools as he had done previously.
Defendant's application was precipitated by the refusal of defendant's twelve-year-old daughter's school to accept gifts and letters from defendant for his daughter. The court directed that the gifts and correspondence for the twelve-year-old daughter be delivered to her home and required plaintiff to acknowledge receipt of the items in writing to defendant or his attorney. In addition, the court denied defendant's application to require plaintiff to undergo parenting counseling and denied the parties' cross-applications for counsel fees. On January 25, 2007, the trial court denied defendant's motion for reconsideration as well as plaintiff's request for counsel fees.
On appeal, defendant argues that the motion judge erred (1) in deciding the issue without a plenary hearing; (2) in refusing to interview the children; and (3) in refusing to reconsider his decision after receiving a letter from the court-appointed mental health professional Dr. Mark White explaining why a neutral site for the receipt of letters and gifts would be preferable. Defendant also requests that we remand to a different judge, arguing that the trial court minimized the seriousness of the issue presented.
The parties, who have ten children, divorced in 2003. The record reflects that during the litigation Dr. White was appointed as a custody and visitation mediator in a November 21, 2003, order. The father has unfortunately been estranged from his children for reasons including domestic violence he perpetrated against an older, emancipated son which was witnessed by at least one of the younger children. For the past five years virtually the only contact defendant has had with his eight unemancipated children has been by way of gifts, cards and letters delivered to their respective schools, as well as attendance at school and religious functions.
In April 2006 the school attended by the twelve-year-old child indicated that it would no longer accept these items. Defendant then consulted with Dr. White, who, without discussing the matter with plaintiff or the children, recommended a neutral site for distribution of the items for all eight unemancipated children. Defendant then filed a motion requesting that all children report to a neutral site to pick up his communications. Thereafter, Steven Zabarsky, an attorney who had been appointed pursuant to R. 5:8A to represent the children during the divorce litigation, spoke with the twelve-year-old and several of the other children after which he requested that the current school delivery practice continue as to all but the twelve-year-old. He indicated that the twelve-year-old was shy and would prefer that any communications from her father come to her home rather than another location. After the trial court's denial of defendant's motion, defendant presented a more detailed letter from Dr. White explaining his reasoning for the recommendation that a neutral site be used.
We have carefully considered the arguments advanced by the parties in light of the applicable law and conclude that the trial court appropriately exercised its discretion. We affirm substantially for the reasons expressed by the Honorable Ronald E. Hoffman in his thorough written and oral opinions.
Nonetheless, we add a brief comment concerning the court-appointed mental health professional because we are concerned, given the history here of contentious litigation, that other issues involving the children may arise in the future. In the November 3, 2006, order denying defendant's motion, the trial court referred to Dr. White as a "parenting coordinator." However, the November 21, 2003, order appointed "Dr. White as custody/parenting time mediat[or] to assist the parties in resolving disputes as to major decisions regarding the children." Because Dr. White was appointed as a mediator, he may not make any recommendation to the court respecting custody or visitation. Isaacson v. Isaacson, 348 N.J. Super. 560, 574-575 (App. Div. 2002), certif. denied, 174 N.J. 364 (2002), R. 1:40-5(a)(3). Further, even if Dr. White had been appointed as a parenting coordinator and not as a mediator, the preferable practice would be to consult with both parents and the attorney for the children prior to making a recommendation to the court.*fn1