November 21, 2008
LEE S. MACK, PLAINTIFF-RESPONDENT,
JENNIFER K. HOFFMAN (FORMERLY KNOWN AS MACK), DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-423-97.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 22, 2008
Before Judges Parrillo, Lihotz and Messano.
Defendant Jennifer K. Hoffman appeals from a September 25, 2007 order of the Family Part denying, among other claims for relief, her request to remove a parent coordinator, and from the November 30, 2007 order denying her motion for reconsideration.
By way of background, plaintiff Lee S. Mack and defendant were married on December 21, 1995. They have one child, S.M., who was born on June 18, 1996. The parties divorced on March 27, 1998. A property settlement agreement (PSA) incorporated into the final judgment granted both parties joint legal custody of S.M., and defendant, primary residential custody. Since the divorce, both parties have entered into new relationships. Defendant is remarried and has a child with her husband. Plaintiff has a child with a woman with whom he has maintained a relationship for six years and has been living for the last six months.
The relationship between the parties remains a troubled one. Following the divorce, defendant filed multiple domestic violence complaints against plaintiff, all of which had been dismissed by the court. In 2004, plaintiff moved to modify the custody provision of the PSA by granting him joint residential custody of S.M. In response, on April 30, 2004, the Family Part judge ordered the parties to undergo a psychological evaluation to be performed by Dr. Charles Most. In his post-evaluation report, Dr. Most recommended the parties "be assigned a parenting coordinator to arbitrate the disagreements that will certainly arise."
Consequently, on September 8, 2004, the parties, each represented by counsel, entered into a consent agreement/order*fn1 to resolve custody/parenting time and other issues. Relevant provisions of the agreement include:
2. Plaintiff and Defendant shall participate in all major life decisions relating to the educational and religious training and medical and dental treatment of the child.
17. The parties have a restriction against overnight parenting time with S.M. in the presence of an unrelated adult of the opposite sex.... The restriction, if it continues, will not apply to spouses of either party.
27. The parties shall alternate the dependency exemption for the child each year. The Plaintiff shall be entitled to claim the child in the even years commencing 2004 tax year and the Defendant in odd years until such time as the child is emancipated. The parties agree to cooperate in executing any form required by the federal or state taxing authorities to facilitate alternating the dependency exemption as set forth above and provide said executed form to the party claiming the child by the end of the tax year.
30. The parties agree to utilize Alison Trofimov, Esq. of Clinton, New Jersey as a mediator for future disputes concerning all issues regarding the child and the terms and provisions contained within the Order. The parties may initiate mediation by notice to Ms. Trofimov by telephone and notice to the other party by text messaging or email of the issue in dispute. In the event the parties cannot reach agreement, Ms. Trofimov is to serve as a binding arbitrator on the issue before her. Both parties are entitled to make oral and written submissions to Ms. Trofimov in relation to any arbitrable issue. A party may appeal an arbitration decision of Ms. Trofimov in relation to any arbitrable issue. A party may appeal an arbitration decision of Ms. Trofimov to the Court within five (5) days of receiving said decision.... In the event a party appeals an arbitration decision by filing an application to the Court and that party is unsuccessful in advancing their cause, they shall pay the legal fees of the other party incurred in defending the application. If both parties appeal, the Court shall determine the party, if any, who shall pay the legal fees.
The most relevant provision, for present purposes, is paragraph 30 appointing a "mediator" and parent coordinator*fn2 for matters affecting S.M. To this end, the parties worked with Ms. Trofimov from September 2004 to April 18, 2005 when she resigned because defendant accused her of "pocketing money." Following the resignation, on August 9, 2005, the parties, once again with counsel, negotiated and entered into a second consent agreement/order, which was identical to the first in all respects save the appointment of Nadine Maleski, Esquire, as parenting coordinator.
Matters did not go smoothly thereafter. According to defendant, she was "forced" to sign a retainer agreement on September 19, 2005, and, shortly thereafter, on October 12, 2005, she wrote Maleski purporting to terminate her services. Maleski responded on October 18, 2005, advising that only the court could terminate her services and further voicing concern over defendant's actions at the meeting:
Ms. Hoffman made numerous efforts to obstruct our ability to learn about the issues. She would not pay the retainer fee. She would not sign the retainer agreement. She insisted on obtaining information that was not available to me and could not be available to me until I received specific information from the parties themselves.
She appeared at the session by parking in two parking spots instead of one. She was rude to my staff almost knocking one over who was carrying a heavy bundle. She screeched out of the parking lot in an unsafe manner. Consequently, on November 9, 2005, defendant moved to, among other things, terminate Maleski as parenting coordinator. Following argument, the motion judge denied defendant's application and awarded plaintiff counsel fees for defendant's failure to cooperate with Maleski. Defendant never appealed from this order.
Despite this rather rocky start, Maleski served as parenting coordinator from December 2005 to May 2007 without major incident. During this time, an issue arose over the payment of an orthodontist bill for S.W. Defendant had taken S.W. to Dr. Terzis for two visits, costing $950. Defendant used her dental insurance to cover part of the cost of the second visit, and plaintiff agreed to pay for the first visit. He questioned, however, the necessity of a second visit and refused to pay his share for that visit when demanded by defendant. As a result, the issue was presented to Maleski, who wrote to both parties on May 10, 2007, suggesting a solution:
On January 18, 2006, in a 6:30 p.m. e-mail to Lee and Jennifer (the e-mail addressed a number of topics), I concluded that because it took so long and cost so much money for Lee to obtain Jennifer's cooperation with providing medical information in advance, that the then, current orthodontic treatment was to be paid entirely by Jennifer. Rather than do that, she used the insurance that would have benefited both parties. That is why, after making calculations in my letter of March 7, 2007, I recommended that the matter be resolved by Jennifer paying $160 to Dr. Terzis, which would resolve the dental fee issue entirely. Mr. Mack was to pay Dr. Terzis something over $400 and I believe he did so. I attach a copy of the calculations that were provided to me, and which I reviewed on a previous occasion in order to come up with my March 7, 2007 letter. On April 2, 2007, I forwarded to you the $75 payable to Derek Hoffman for the January through June 2007 insurance.
Maleski addressed another issue surrounding an 2006 income tax return. The parties' September 8, 2004 consent agreement (paragraph 27) provided that each party would alternate the dependent deduction: defendant would claim S.M. as a dependent in odd years and plaintiff in even years. Yet defendant and her husband claimed S.W. as a dependent on their 2006 tax return, because plaintiff was allegedly in arrears in his child support obligation. Plaintiff objected and requested defendant amend the return. Maleski suggested defendant reimburse plaintiff the value of the deduction, which was $1,529.
Shortly thereafter, on June 4, 2007, and undeterred by previous efforts, defendant's counsel wrote Maleski advising her of the Parenting Coordinator Pilot Program*fn3 and recommending Maleski withdraw as the parties' parenting coordinator. When this overture was resisted, defendant, on August 17, 2007, once again moved to terminate Maleski as parenting coordinator and to invalidate paragraph 30 of the September 8, 2004 agreement/order. Plaintiff opposed the motion and cross-moved seeking: (i) clarification of Maleski's role as parenting coordinator and mediator; (ii) enforcement of paragraph 25 of the September 8, 2004 order for payment of one-half of S.M.'s orthodontist bills; (iii) payment of a $160 orthodontist bill; (iv) determination that defendant was in violation of paragraph 27 of September 8, 2004 order because she claimed S.M. as a dependent in an even year; (v) direction that defendant amend her 2006 tax return within thirty days and payment of plaintiff's tax accountant fees to correct his 2006 tax return; (vi) invalidation of paragraph 17 of the September 8, 2004 order restricting overnight parenting time with S.M. in the presence of an unrelated adult of the opposite sex; and (vii) sanctions against defendant for failure to cooperate with the parent coordinator/mediator.
In support of her request for relief, defendant argued that Maleski was biased towards plaintiff and had treated defendant unfairly in her recommendations. The Family Part judge rejected this contention, and, on September 25, 2007, denied defendant's request, continuing Maleski as parenting coordinator:
The role of parenting coordinator/mediator Ms. Nadine Maleski shall continue as outlined in the September 8, 2004 Order, as amended by the August 9, 2005 Order. Should a dispute arise between the parties, either may bring the issue before Ms. Maleski and await her decision and recommendation. If either party feels the need they may file a motion with the court which will be the final decision on any issue.
As for plaintiff's cross-motion, the judge ordered:
1. Plaintiff shall within 10 days pay defendant $87.50 for reimbursement of health insurance premiums through July 2007. Plaintiff may stop check number 2308. If since the filing of the motion plaintiff has not paid defendant $12.50 for each of the months of August 2007 and September 2007, he shall pay $25 to defendant within 10 days.
2. As of December 1, 2007 and every year thereafter on that date of the year, defendant shall provide plaintiff with the cost of health premium for S.M. for the following year. Plaintiff within 10 days of that date shall pay defendant one half of the yearly premium.
3. Defendant shall discuss with plaintiff, by e-mail, all future medical treatment with plaintiff before incurring any medical expenses for S.M. except in an emergency. Failure to discuss treatment with plaintiff shall result in defendant being responsible for the cost of the treatment.
4. Defendant shall file an amended 2006 Tax return within 20 days which return shall not include S.M. as a dependent.
5. Defendant shall refresh her retainer with the parenting coordinator Nadine Maleski, Esq. within 10 days.
Defendant moved for reconsideration on October 16, 2007.
With specific reference to her original request for Maleski's removal, defendant argued, for the first time, that she did not knowingly consent to the September 8, 2004 and August 9, 2005 agreements; that the level of dysfunction between the parties now warrants a parenting coordinator with specialized mental health training, which Maleski obviously lacks; and that Maleski had a conflict of interest because she had previously represented defendant's aunt. The judge denied defendant's motion for reconsideration in its entirety. With specific reference to the renewed request for removal, the judge reasoned:
The only "new" arguments that defendant makes with regard to Paragraph 30 of the September 8, 2004 Order and Paragraphs 1 through 5 of the August 9, 2005 Order are that, due to the level of dysfunction of their family, the mediator/arbitrator arrangement is not helpful; and that Ms. Maleski represented her aunt and had met with her grandfather and that her aunt had discharged Ms. Maleski. Defendant relies on an email sent to her from Ms. Maleski, which states: "Dear Jennifer: I do not think that my prior representation of your aunt and meeting your grandfather is relevant to this case. We discussed this long ago and determined that."
While defendant may consider these contentions "new," they are only new in the sense that they were not brought before the court in defendant's original motion. These facts were known by defendant well before she filed her original motion. In that sense, these are not new contentions, but rather an attempt by defendant to make a new argument that should have been included in the original motion.
Even considering this information there is no conflict that would necessitate Ms. Maleski to step down as parenting coordinator. Therefore, defendant has not shown either that the court has expressed its decision based upon a palpably incorrect or irrational basis, or that it is obvious that the court either did not consider or failed to appreciate the significance of probative, competent evidence.
The defendant entered into an agreement as embodied in the consent orders which agreement is enforceable. Defendant cannot utilize her lack of cooperation with the Mediator/Parenting Time Coordinator's decisions as a basis to void the voluntary agreement she entered. Defendant is not permitted to continue to shop around for a parenting coordinator that is more favorable to defendant.
Defendant argues that her agreement to utilize Nadine Maleski, Esq. as a parenting coordinator was not a knowing agreement on her part and that the agreement should be voided by the court. Defendant, however has not established that her agreement was not knowing on her part. Certainly, she understood the role of the first parenting coordinator to [settle] disputes between the parties that arise concerning the raising of the parties daughter. Defendant's reluctance at first to sign Ms. Maleski's retainer agreement occurred after the parties had agreed to utilize a parent coordinator.
Defendant's sole basis that a Mediator/Parenting Time Coordinator is inappropriate is that the parties' family is at a level of dysfunction that renders such a device unworkable. Furthermore, defendant did not raise this specific issue regarding the Mediator/Parenting Time Coordinator in her original motion. This is insufficient to support a motion for reconsideration. In addition the recent psychological repo[r]t of Lawrence Farmer indicates that these parties should not be dealing with one another concerning their child. They absolutely need someone as a buffer between them to deal with conflicts which will inevitably occur. The parent coordinator serves this role as originally opined by Dr. Most. The court has modified the parent coordinator's role so that the parties do not have face to face confrontation and all disputes will be raised with the coordinator by email, text messaging or by phone. This should minimize the contact between the parties that seems to precipitate conflicts and defendant's emotional reaction.
Defendant makes the same arguments as she did in her original motion where she requested removal of Ms. Maleski as the Mediator/Parenting Time Coordinator. Namely, defendant contends that Ms. Maleski is biased towards plaintiff and that she has treated defendant unfairly in rendering her decisions of issues that have arisen between the parties. Defendant does not add any new information or bring any relevant case law before the court to indicate that the court should reconsider its decision of September 25, 2007.
As noted, on the reconsideration motion, the judge denied all other requested relied by defendant, including her application: (i) to find plaintiff in violation of litigant's rights for failing to comply with Paragraph 25 of the September 8, 2004 order requiring plaintiff to contribute 50% of uncovered dental and orthodontic expenses for S.M.; (ii) to require plaintiff to pay the $315 orthodontic bill and to pay the remaining $160 due the orthodontist; (iii) for reconsideration of the order requiring defendant to amend her 2006 tax return; (iv) to find plaintiff in violation of litigant's rights for failing to comply with Paragraph 17 of September 8, 2004 order; (v) to reconsider the September 25, 2007 order and to declare paragraphs 1 through 5 of the August 9, 2005 order as void; and (vi) for a court-ordered assessment by a licensed mental health professional.
As to the first two claims involving the cost of S.M.'s orthodontic care, the judge explained:
The procedure involved here was not an emergency. Therefore the critical question is whether plaintiff was aware of the second procedure.... None of these e-mails, however, substantiate the proposition, as required by the September 8, 2004 Order, that plaintiff was consulted in anyway regarding the second treatment.
In addition, despite the statement from Horizon Blue Cross Blue Shield, defendant does not provide anything, aside from a handwritten note, that substantiates the contention that S.M. was not covered by dental/orthodontic insurance which would have covered the first procedure performed by Dr. Terzis. Defendant claims that no insurance was available for the first orthodontic treatment and that insurance paid for all of the second dental procedure, which the parent coordinator ruled that defendant should be wholly responsible for the cost of [sic.]. Defendant has established that the second procedure was entirely paid for by her husband's dental insurance. The only evidence that there was no coverage for the first procedure is her self-serving statement. She provides nothing from the dental insurance company to indicate that the first procedure could not be covered nor does she supply the effective date of the insurance coverage. The plaintiff attempted to investigate these questions but was frustrated by defendant. The unsupported self-serving statements of defendant are insufficient to establish that insurance was not available for the dental procedure. Therefore, the court's decision that the insurance paid for the second procedure should be considered with respect to the overall cost of both procedures to determine the unreimbursed expense for the first procedure which was to be shared by the parties shall stand.
With regard to the third claim regarding the tax exemption for S.M., the judge concluded:
Defendant contends that Paragraph IX(B) of the parties PSA states: "For the Husband to claim [S.M.] for the preceding calendar year, there shall be no outstanding child support or child support arrearage as of the close of the tax year." Defendant does not attach a copy of the PSA to her present motion. Defendant contends that plaintiff was in arrears in the amount of six months or $75 at the end of 2006. On the other hand, plaintiff contends that he was not in arrears for child support at the end of 2006 since he did not have a child support obligation since the modification of the parenting time agreement. In addition, plaintiff contends that he was not in arrears for any health insurance premium since he gave a check to Ms. Maleski in July/August 2006 for $87.50 representing the remaining payments for 2006, which defendant admitted she received but did not cash. Even if defendant were correct and plaintiff was $75 in arrears at the time that taxes were to be filed, that amount of arrears does not justify the loss by plaintiff of his right to claim S.M. as a dependent on his tax return.
Defendant's reliance on the PSA, which was incorporated into the Final Judgment of Divorce is problematic. The Final Judgment of Divorce was entered on March 27, 1998. Subsequently, the September 8, 2004 Order was entered, which superseded the Final Judgment of Divorce as to the relevant provisions contained therein. So, the controlling document in this matter is the September 8, 2004 Order. That being the case, whether plaintiff was in arrears or not at the end of 2006 is irrelevant as that is not a prerequisite to the tax provision in the September 8, 2004 Order. Therefore, it is clear that defendant was wrong to claim S.M. as a dependent on her 2006 tax returns as she is only entitled to do so in odd years.
As to the so-called "cohabitation issue" implicated in paragraph 17 of the September 8, 2004 consent order, the judge reasoned:
Defendant has not shown either that the Court has expressed its decision based upon a palpably incorrect or irrational basis, or that it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence. Defendant properly points out that plaintiff has only been dating the mother of his mostrecent (sic.) child for 6 years. They have lived together only since May, 2006. Even if plaintiff and the mother of his child did not live together for six years, the result reached by the court would not change. The import of the decision was that plaintiff has established a new family relationship just as defendant has. It is not a breach of the Paragraph 3 of the April 30, 2005 order to have S.M. included in that new family when she has parenting time with her father.
Lastly, the judge granted plaintiff's motion for counsel fees in the amount of $2500 and denied defendant's request for reimbursement of her $10,000 attorney retainer fee.
On appeal, defendant raises the following issues:
I. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO TERMINATE THE APPOINTMENT OF NADINE MALESKI AS THE MEDIATOR/ARBITRATOR/PARENTING COORDINATOR;
II. THE TRIAL COURT ERRED BY AFFIRMING MS. MALESKI'S RECOMMENDATIONS, AS THE MEDIATOR/ARIBITRATOR/PARENTING COORDINATOR, REGARDING S.M.'S ORTHONDONTIA, WITHOUT EMPLOYING ANY DISCERNIBLE STANDARD OF REVIEW; AND SUBSTANTIAL QUESTIONS OF FACT AND LAW NOTWTIHSTANDING;
III. THE TRIAL COURT ERRED BY AFFIRMING MS. MALESKI'S RECOMMENDATIONS, AS THE MEDIATOR/ARBITRATOR/PARENTING COORDINATOR, REGARDING THE TAX EXEMPTION FOR S.M FOR 2006, WITHOUT EMLPOYING ANY DISCERNIBLE STANDARD OF REVIEW; AND IN DISREGARD OF PLAINTIFF'S NON-COMPLIANCE WITH THE TERMS OF THE PARTIES' PROPERTY SETTLEMENT AGREEMENT AND THE COURT ORDER OF APRIL 30, 2004;
IV. THE TRIAL COURT ERRED IN REFUSING TO ENFORCE THE TERMS OF THE PARTIES' PSA ATTACHED TO THEIR JUDGMENT OF DIVORCE (SUB-PARAGRAPH V.I.1) AND OF PARAGRAPH 3 OF JUDGE RUBIN'S ORDER OF APRIL 30, 2004, PROHIBITING EITHER PARTY FROM COHABITATING, WITH SOMEONE NOT THEIR SPOUSE, IN THE PRESENCE OF THEIR CHILD.
We have considered these issues in light of the record and the arguments of counsel and find them to be without merit. R. 2:11-3(e)(1)(A) & (E). We affirm substantially for the reasons stated in the Family Part judge's oral decisions of September 14, 2007 and November 30, 2007. We add only the following comments.
Our scope of review is limited. As we assess the trial judge's factual findings and conclusions, we are obliged to give due regard to his credibility determinations and his feel of the case, based upon his unique opportunity to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988). Additionally, "[b]ecause of the [Family Part's] special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding," and the conclusions that flow logically from those findings of fact. Cesare, supra, 154 N.J. at 413. Consequently, we will not disturb the judge's findings unless they are demonstrated to lack support in the record with substantial, credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). Governed by this standard, we find no warrant for interference with the trial court's decision. The record is devoid of any evidence of bias on Maleski's part, or that defendant's consent was anything but informed, knowing and intelligent. Indeed, defendant never offered evidence that she was unaware of the purpose or role of the parent coordinator. She freely and knowingly entered into two consent agreements, each with benefit of counsel, providing for both the appointment and identity of a parenting coordinator, and describing her role. Furthermore, defendant voluntarily utilized Maleski's services for over two years. While defendant did move to remove Maleski early on in 2005, she was rebuffed and never appealed from the denial of that request for relief.
New Jersey favors settlements. Smith v. Fireworks by Girone, 380 N.J. Super. 273, 291 (App. Div. 2005), certif. denied, 186 N.J. 243 (2006). "A court may vacate a settlement agreement only upon a showing of fraud or compelling circumstances by clear and convincing proof." Id. (internal citations omitted). "Compelling circumstances include'mutual mistake, undue haste, pressure or unseemly conduct in settlement negotiations.'" Id. at 291-92 (citing A T & T Corp. v. Twp. of Morris, 19 N.J. 319, 322 (2000)). Here, the record is bereft of any "compelling circumstances." All that is revealed is simply defendant's dissatisfaction with the parenting coordinator, which is not a sufficient ground to invalidate her initial consent agreement, or the successor consent agreement, which ratified her original intent to have a parent coordinator/mediator appointed.
Equally clear is that motions for reconsideration under Rules 1:7-4(b) and 4:49-2 are not meant to give litigants "a second bite of the apple." Fusco v. Bd. of Educ., 349 N.J. Super. 455, 463 (App. Div.), certif. denied, 174 N.J. 544 (2002). Such motions "cannot be used to expand the record and reargue a motion," Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.), certif. denied, 195 N.J. 521 (2008), nor can they be used to offer a "new theory" as to liability in a case where the factual predicates were previously available. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). Rather,
[r]econsideration should be utilized only for those cases which fall into that narrow corridor in which either 1) the [c]court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]court either did not consider, or failed to appreciate the significance of probative, competent evidence.
[D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990); accord Fusco, supra, 349 N.J. Super. at 462; Cummings, supra, 295 N.J. Super. at 384.]
In other words, the court must be convinced that it acted arbitrarily, capriciously, or unreasonably. D'Atria, supra, 242 N.J. Super. at 401. The decision whether to grant a motion for reconsideration lies within the sound discretion of the trial court, to be exercised in the interest of justice. Ibid.
In her motion for reconsideration, defendant failed to demonstrate the existence of new evidence. The information concerning Maleski's prior representation of defendant's aunt was known since at least October 2006, nine months before defendant's original motion, yet she failed to raise the so-called ethical conflict therein. This same reasoning, of course, applies to defendant's assertion of a level of dysfunction warranting intervention of a "licensed mental health professional," information presumably available to defendant first-hand prior to the filing of her August 17, 2007 motion to remove Maleski, but inexplicably excluded therefrom. As if this were not enough reason for denial of the reconsideration motion, defendant also failed to proffer competent, reliable proof of the need for such "professional" intervention, or the legal basis for same.