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Menzel v. Davis

October 1, 2008

DIANA MENZEL, PLAINTIFF-RESPONDENT,
v.
JOHN DAVIS, JR., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FD-14-203-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 16, 2008

Before Judges Wefing, Yannotti and LeWinn.

Defendant John Davis, Jr. appeals from a post-judgment order entered in the Family Part on October 31, 2007, denying his motion to vacate an order of September 13, 2007, which modified defendant's parenting time schedule with the parties' seven-year-old daughter.

The parties have a long litigious history regarding parenting time issues. On April 12, 2004, the parties entered into a consent order setting forth a parenting time schedule and limiting their contact to "non-offensive communications related solely to the child's health, safety, education and welfare." On September 30, 2004, the court entered an order requiring the parties to "improve their cooperation and communication regarding their daughter." On October 29, 2004, the court entered an order that required the parties to comply with the two previous orders and adjusted the parenting time schedule to accommodate plaintiff's work schedule. On December 14, 2004, the court ordered the parties to attend mediation with regard to ongoing parenting time issues.

On April 7, 2005, in an order addressing a child support motion, the court once again noted that the parties had been ordered to mediation "to resolve parenting time issues and establish a long range parenting time vacation/holiday schedule." On May 20, 2005, the court entered an order denying defendant's request for a mental health assessment of plaintiff and directing the parties to seek the services of a family therapist/psychologist "to focus on their relationship as to their child and for assistance in improving their levels of communication and cooperation."

On June 28, 2005, after mediation proved unsuccessful, the court entered an order directing the parties to "utilize the services of a parent coordinator for future issues involving their child and parenting time." However, it appears that the parties did not comply with this provision.

On December 19, 2006, the court entered an order establishing the following parenting time schedule:

Week one: Plaintiff shall pick up the child after school on Thursday and drop off the child at defendant's home at 10:30 a.m. on Sunday. Week two: Plaintiff will pick up the child after school on Thursday and defendant will pick the child up on Monday morning at plaintiff's home and drop [the] child off at school. Defendant shall have the opportunity to elect 10 full weekends per year in addition to his scheduled parenting time. Plaintiff shall have the opportunity to elect 16 days per year in addition to her scheduled parenting time.

On that same date, the court entered a separate order appointing Susan M. Joseph, Esq., as parenting coordinator "to assist the parties in resolving disputes as to custody, parenting time or any related issue affecting parties' child."

The parenting coordinator issued a report on May 24, 2007, in which she proposed a modification of the parenting schedule in the December 19, 2006 order. Her reason for the change was to minimize the number of transfers and the amount of transportation involved. The parenting coordinator stated that the then-current parenting plan was "an invitation for discord." Therefore, she sought to reduce the contact between the parents in the best interest of the child.

The parenting coordinator eliminated defendant's "elective weekends[,]" and recommended a four-week cycle as follows: for three out of the four weeks, defendant would have overnight parenting time from Monday through Wednesday; in the fourth week, he would have overnight parenting time from Wednesday through the following Wednesday (until Thursday morning). Pursuant to this schedule, defendant received one definite weekend per month within the extended period of eight consecutive overnights in the fourth week of the cycle.

Defendant filed a motion to reject the schedule recommended by the parenting coordinator and proposed an alternative schedule as follows: (1) Monday morning through Wednesday morning with defendant; (2) Wednesday morning through Friday morning with plaintiff; and (3) alternating weekly Friday evening through Monday morning. Defendant ...


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