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Gallagher v. Cocozza

July 25, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FD-14-63-02.

Per curiam.


Submitted July 15, 2008

Before Judges Parker and Gilroy.

Plaintiff Paula J. Gallagher appeals from the following orders of the Family Part: 1) order of July 10, 2007, which, among other matters, granted plaintiff parenting time in Arizona with the parties' daughter from July 14, 2007, through July 28, 2007; 2) order of September 20, 2007, which denied plaintiff's motion seeking a change of venue; 3) order of October 1, 2007, which awarded defendant $1,620 in counsel fees; 4) order of October 25, 2007, which, among other matters, denied plaintiff's motion for reconsideration of the order of July 10, 2007; 5) order of October 3, 2007, which denied plaintiff's application for an order to show cause (OTSC); and 6) order of November 9, 2007, which denied plaintiff's application for an OTSC seeking a stay of the prior five orders. We affirm in part and remand the matter to the trial court for further proceedings consistent with this opinion.

Defendant is, and has been throughout his relationship with plaintiff, a resident of Florham Park, Morris County. At the time the parties began their relationship in 1991, plaintiff was divorced and had two daughters from her prior marriage. Although the parties never married, plaintiff and her two daughters moved into defendant's home in Florham Park. One child was born of their relationship, a girl,*fn1 in 1995.

In 1999, plaintiff moved to Arizona, leaving the parties' daughter in the custody of defendant. On July 20, 2001, plaintiff filed a complaint seeking custody, support, and other equitable relief. On February 24, 2003, the parties filed a consent order partially resolving some of their economic claims.

On July 10, 2003, the trial court entered a consent order, which provided that the parties would share joint legal custody of their daughter, with defendant designated as the parent of primary residence, subject to plaintiff's reasonable right of visitation. As to parenting time, the order provided:

The [c]court notes that the parties are attempting to negotiate a comprehensive parenting agreement, which will facilitate visitation by [p]laintiff with the parties' daughter during summer vacations, holidays, and other times during the year. The parties shall continue their efforts to resolve these issues. The [c]court has suggested that the parties consent to binding arbitration in the event that they are unable to achieve a settlement in this regard. Either party may file a new non-dissolution action clearly and definitively setting forth such issues.

Plaintiff has continued to reside in Arizona since the entry of the July 10, 2003 order. Over the following summers, plaintiff has exercised parenting time with their daughter in Arizona, of which the longest duration was for a period of four weeks in 2004. On June 20, 2007, because the parties could not agree on plaintiff's parenting time schedule with their daughter in Arizona for that year, plaintiff filed an application for an OTSC, seeking: 1) "[i]mmediate commencement of four weeks of summer visitation with my daughter"; 2) "[i]mmediate release and copies of all records from any medical or psychological evaluation and/or treatment, including prescription medication of [my daughter] during the last [six] years"; 3) "temporary restraining order [(TRO)] on Kathi [(defendant's girlfriend)] until a mutually agreeable . . . court-ordered forensic psychologist conducts [an] . . . evaluation of the . . . Cocozza home life . . . and the relationship between [my daughter] and Kathi with respect to parental alienation of the biological mother."*fn2

On July 10, 2007, the trial court conducted a hearing on plaintiff's application for an OTSC, during which plaintiff voluntarily withdrew her application for a TRO against Kathi. Because their daughter was not only scheduled to attend the Florham Park Teen Day Camp from July 9 through July 13, 2007, but also to participate in recreational soccer in the latter part of August that year, the judge granted plaintiff limited parenting time of two weeks with the daughter in Arizona for that summer. However, as to future summers, the judge directed that plaintiff was entitled to four weeks of parenting time each summer in Arizona, which could be, but not necessarily need be, consecutive, depending on their daughter's other scheduled activities. As to the parenting time issue, a confirming order entered that day provided in relevant part:

Plaintiff shall have parenting time with the child . . . in Arizona from July 14, 2007 to July 28, 2007. For all summers going forward, plaintiff shall have four weeks of summer parenting time with the child in Arizona. No later than February 1st of each year, plaintiff shall provide defendant with the four summer weeks during which she wishes to exercise her summer parenting time. Plaintiff's parenting time need not be consecutive but shall occur in two-week blocks. Defendant shall respond to plaintiff's proposed summer parenting time schedule by no later than February 28th of each year and identify any conflict between plaintiff's proposed scheduled and the child's scheduled activities.

In addition, the order directed the parties to develop a comprehensive parenting time schedule for plaintiff, and if they could not agree, that the court would appoint a parenting coordinator to assist the parties in that endeavor.

On or about July 22, 2007, plaintiff moved for reconsideration of the order of July 10, 2007.*fn3 In her supporting certification, plaintiff contends that she was denied a fair hearing on July 10, 2007, asserting that the trial judge was biased in favor of defendant. Plaintiff requested that the original trial judge of July 10, 2007, recuse himself from further proceedings in the matter; the court grant her request for a restraining order against Kathi; and the court reverse itself on that ...

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