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Cestone v. Cestone


July 18, 2008


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1542-06.

Per curiam.


Argued May 6, 2008

Before Judges Fuentes and Grall.

Plaintiff Lisa Cestone married defendant Vincent Cestone on April 17, 1999. The couple had three children, two girls born on July 18, 2000 and October 13, 2002, and a boy born on November 23, 2004. They separated in December 2005, and filed for divorce in 2006.

The matter came before the Family Part for trial on March 27, 2007. Following two days of trial testimony and intermittent settlement negotiations, the parties came to a tentative agreement concerning the financial aspects of the case. The terms of that tentative agreement were brought to the trial judge's attention and placed on the record by the attorneys.

With respect to the children, both parties consented to joint legal custody, but could not agree on a parenting time schedule. After hearing testimony from defendant only, the court ordered that the then existing weekly parenting time schedule remain in effect, with minor changes. It further ordered that the parties meet with a parenting coordinator to resolve the remainder of the parenting time schedule, including holidays and the summer months. The judge intended for these issues to "shift" to the parenting coordinator and "filter" through him, before he considered the parties' arguments on the merits.

The court ordered the parties to participate in twelve sessions with the parent coordinator, for a period of three months. If the parties could not resolve their disputed issues after three months, either party could make a formal motion to have those issues decided by the trial court. Specifically, the judge advised that parties that:

If at the end of the 12 sessions*fn1 in that three-month period either side is not accepting of recommendations from the "parent coordinator," all right, then either one of you can by formal motion seek me to decide those issues.

But it's my hope that you will at least minimize the outstanding issues and reach consent or agreement on the recommendations of [the parent coordinator] or a number of those.

Defendant agreed to this approach. Plaintiff indicated that she understood the plan, but neither she nor her attorney expressly approved or disapproved of the court's recommendation.

At a status conference, counsel advised the court that they had resolved all of the issues except those subject to this appeal. Counsel then executed and presented to the court a judgment of divorce (JOD), which provided that "the status quo of parenting time shall continue, pending further Order of the Court." The JOD also memorialized the court's order requiring the parties to continue to meet with the parent coordinator for a minimum of twelve sessions, once a week over three months, to review the issues of: (1) summer time sharing; (2) holiday allocation; (3) vacation time sharing; and (4) attendance at the children's doctor's appointments. If following this three month period the issues were not resolved, either party retained the right to make a formal motion requesting that the court decide the disputed issues.

On July 10, 2007, plaintiff filed a motion for reconsideration seeking that the trial court modify the JOD as follows: (1) omit the designation of defendant as the "non-custodial parent"; (2) remove paragraph 2.2 of the child support provision in its entirety; (3) remove paragraph 3.2 of the equitable distribution provision in its entirety; and (4) remove the paragraph requiring the parties to see a family therapist.

Before this motion for reconsideration was decided, plaintiff filed a notice of appeal, seeking direct appellate review of the trial court's actions as a final judgment. Thereafter, plaintiff filed a motion before this court seeking a temporary remand to allow the trial court to hear her previously filed motion for reconsideration. We denied that motion, as well as a subsequent motion for reconsideration.

Against this procedural backdrop, plaintiff now appeals arguing that the trial court erred in: (1) creating a general parenting time schedule without holding a plenary hearing; (2) abdicating its authority to a parenting coordinator; and (3) including a provision in the JOD which is contrary to public policy.

We are satisfied that this appeal must be dismissed, because the decision of the trial court is not a final judgment, and no leave to appeal was granted or even requested. A party can only appeal as of right to the Appellate Division from a "final judgment." Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545, 549 (App. Div. 2007) (citing R. 2:2-3(a)(1)). To qualify as a final judgment, an order must "dispose of all claims against all parties." Id. at 549-50 (quoting S.N. Golden Estates, Inc. v. Cont'l Cas. Co., 317 N.J. Super. 82, 87 (App. Div. 1998)).

If an order is not a final judgment, the appellate division must grant the party seeking review leave to appeal. Id. at 550 (citing R. 2:2-4; R. 2:5-6(a)). However, "[t]he grant of interlocutory review is 'highly discretionary' and 'customarily exercised only sparingly.'" Vitanza v. James, 397 N.J. Super. 516, 517 (App. Div. 2008) (quoting State v. Reldan, 100 N.J. 187, 205 (1985)). "[T]here is strong policy against piecemeal review and interruption of the orderly processing of cases to disposition in the trial courts." Id. at 518 (citing Pressler, Current N.J. Court Rules, comment to R. 2:2-3).

Here, the court ordered the parties to meet with the parenting coordinator, for a minimum of twelve sessions over a three month period. If at the end of the twelve sessions either side did not accept his recommendations, then either party retained the right to make a formal motion requesting that the court decide the disputed issues. Cleary, the court's order did not "dispose of all claims against all parties." See Janicky, supra, 396 N.J. Super. at 549-50 (quoting S.N. Golden Estates, supra, 317 N.J. Super. at 87).

The court's order merely deferred determination of the issues raised by both parties until after the three month period of additional consultation with the parenting coordinator. As such, the appeal was not from a final judgment, and no leave to appeal was sought.

The appeal is therefore dismissed as interlocutory.

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