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Mack v. Hoffman

November 21, 2008

LEE S. MACK, PLAINTIFF-RESPONDENT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

We affirm.

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 ...


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