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Menzel v. Davis


October 1, 2008


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

Per curiam.


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 further requested that the court schedule "the issue of shared custody for a plenary hearing."

Following oral argument on August 28, 2007, the court decided to incorporate the parenting coordinator's recommendations into an order, finding that the "schedule recommended by the parenting coordinator is going to reduce the amount of contact and the amount of transfers . . . in what has been an inordinately conflicted set of relationships." The court stated that it "had enough experience with these parties to know that the conflict is so deep and it's so endemic -- that [he] could get Mother Theresa in between these parties and we still might not have a consensual agreement." On September 13, 2007, the court entered an order reflecting its decision. The order noted that the parenting coordinator's schedule incorporated therein "results in each party having fourteen (14) overnights of the 28 in the four week cycle."

Defendant filed a motion for reconsideration, seeking to vacate the September 13 order and proposing an alternative schedule. On October 31, 2007, the court entered an order denying defendant's motion.

On appeal, defendant argues that the trial court erred by modifying parenting time without conducting a plenary hearing. Defendant also submits that the court improperly delegated its decision-making authority to the court-appointed parenting coordinator. For the reasons that follow, we find both arguments to be without merit and, therefore, affirm.

Pursuant to the schedule in the December 19, 2006 order, defendant was entitled to "elect" ten full weekends during the year. Defendant's only scheduled weekend parenting time under that order was on alternating Sunday nights.

By contrast, pursuant to the current order as recommended by the parenting coordinator, defendant now has twelve definite weekends throughout the year. This order has the added advantage of scheduling those weekends within a defined four-week rotation, rather than leaving it to defendant to "elect" weekend parenting time which, in turn, would require increased contact and negotiation between the parties.

The record reveals that these parties have had a long and contentious relationship, particularly as far as their child is concerned. Their history supports the parenting coordinator's recommendation to implement a parenting time schedule that would minimize contact between the parents as being in the child's best interest.

Because we conclude that the schedule resulting from the parenting coordinator's recommendations does not significantly change defendant's previously court-ordered parenting time, and, in fact, increases and guarantees his weekend parenting time, we conclude that a plenary hearing was not required. See Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007) (plenary hearing not required where moving party failed to establish a prima facie case that circumstances had arisen that "were adversely affecting the welfare of the child[]").

Nor do we find that the trial court "delegated" its authority to the parenting coordinator, as defendant contends. The parenting coordinator wrote directly to the parties on May 24, 2007, setting forth her "reasons and recommendations regarding the parenting plan for [the child]." In July 2007, defendant filed a motion seeking a different parenting time schedule with the exception of the holiday visitation schedule recommended by the parenting coordinator. Plaintiff sought adoption of the parenting coordinator's recommendations by the court.

After hearing extensive arguments, the trial court concluded that the parenting coordinator's recommendations would be in the child's best interest, as it would reduce the child's exposure to conflict between her parents. The court also noted that, within a twenty-eight day cycle, each parent had fourteen overnights.

Decisions regarding parenting time are governed by the "best interests of the child" standard. Wilke v. Culp, 196 N.J. Super. 487, 497 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985). "In such cases, the sole benchmark is the best interests of the child." Sacharow v. Sacharow, 177 N.J. 62, 80 (2003). We accord particular "deference to family court factfinding" if those findings are supported by substantial credible evidence in the record. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "Because of their special expertise in family matters, we do not second-guess [family judges'] findings and the exercise of their sound discretion." Hand, supra, 391 N.J. Super. at 111.

We conclude the trial court properly applied the "best interests of the child" standard to this situation. Considering the parties' history of conflict and inability to agree on parenting time, the trial court's finding that the parenting coordinator's recommended schedule was in the child's best interests is supported by substantial credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).



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