On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-832-97.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2009
Before Judges Baxter and King.
This is an appeal of a May 30, 2008 post-judgment matrimonial order that denied defendant Judith Gallagher's request for two alternating weekends of visitation per month with her daughter, C. Cacici. Defendant has had an ongoing battle with a major illness since the spring of 2006. Plaintiff Joseph Cacici, is C.'s father, and has served as her primary residential custodian since February 15, 2007.
Defendant also specifically appeals from: (1) paragraph nine of the order that denied her request to take C. on a vacation scheduled for the end of June through July 2008; and (2) paragraph eight of the order that enforced provisions of the parties' Property Settlement Agreement (PSA) as they relate to the sale of the former marital home and plaintiff's one-half interest in said home.
The parties married on February 28, 1993. Prior to the marriage, defendant had a daughter, Ashley, from a previous relationship. The parties' daughter C. was born on August 26, 1993. The parties divorced on April 14, 1997.
The parties entered into a PSA that was incorporated into their divorce judgment. The parties agreed to joint legal custody of C., and designated defendant as her primary residential parent. The PSA also obligated the parties to "cooperate in insuring that each parent shall have as much time with [C.] as possible," and to seek to foster, encourage and refrain from alienating C.'s affection for each parent. The PSA also established plaintiff's visitation schedule, giving him parenting time on alternate weekends, holidays, Father's Day, and alternate school vacations and holidays, and provided that plaintiff's time was to increase as C. matured. The agreement also provided that the parties would make joint educational, recreational, medical and psychotherapeutic decisions, except in the case of an emergency.
As to the parties' former marital home, located in Norwood, Bergen County, the PSA, among other things, provided the following: (1) defendant would remain the sole title owner, but could not encumber the property with any "liens, mortgages, etc."; (2) plaintiff would pay off the existing mortgage and "concurrently have a first mortgage lien on the property in an amount equal to fifty (50%) of its value," with plaintiff's mortgage taking the form of a non-interest bearing balloon mortgage with an amortization date of December 31, 2011; (3) defendant had the ability to sell the home, at the best price available, at any time during the currency of plaintiff's mortgage, with the parties sharing the net proceeds equally, subject to defendant receiving a minimum of $225,000, at which time the mortgage would be extinguished; (4) defendant was given an option to purchase the house and plaintiff's mortgage if the house was still unsold 120 days prior to December 31, 2011.
The record shows that defendant, C., and defendant's daughter, Ashley, continued to live in the Norwood home. C. lived there until February 15, 2007, when plaintiff was given temporary residential custody due to C.'s difficulties in dealing with her mother's illness. Plaintiff resides in Old Bridge. The parties' homes are about one and one-half hours apart by car.
For a period of time after the divorce, the parties had a relatively amicable relationship. Plaintiff certified that after the divorce plaintiff and defendant were flexible in sharing parenting time with C. The record shows that in 2001, the parties agreed C. would spend two months of every summer with plaintiff.
In April 2006, defendant was diagnosed with stage-four cancer, and underwent extensive surgery. Defendant began aggressive chemotherapy treatment, starting in October 2006 and lasting through January 29, 2007. In her certification, defendant explained the harmful effects of the treatment, which made her "sick as a dog," caused her to lose her hair, caused her weight to drop to ninety-eight pounds, and left her in excruciating pain. At this time, defendant required full-time care. Defendant also explained that her illness caused her to become "very emotional . . . ."
Defendant explained that her illness and the chemotherapy had significant repercussions for C. who, at thirteen years of age, had a very difficult time dealing with the situation. Defendant's other daughter, Ashley, explained that C. was "crying everyday to the counselor and fighting with her friends . . . ." In a May 2, 2008 letter to plaintiff's counsel, defendant detailed C.'s situation as follows: she cried every day to her school counselor, she could not concentrate on her school work, therapy was recommended, her personality began to change, her sadness became anger, and, according to defendant, she "had a melt down." Correspondence from Judy Shedletsky, C.'s guidance counselor, dated May 19, 2008, confirms that "[b]ecause of [defendant's] illness, and [C.]'s clear emotional distress and poor academic performance," the counselor "strongly urged her parents to seek counseling and testing for her."
Plaintiff, on May 16, 2008, certified that when C. returned to defendant's home after the summer of 2006, arguments between she and defendant increased in frequency and severity, with defendant constantly yelling and picking fights. Plaintiff, in the same certification, contended that defendant "according to [C.], flung [C.] across the room on more than one occasion and also hit her." This assertion is disputed by defendant and her daughter, Ashley. Plaintiff further certified that he was contacted many times by C.'s eighth-grade guidance counselor, who shared how unhappy C. was with her home life.
Therapy was recommended by an unnamed party. Plaintiff resisted therapy sessions in Norwood, but was willing to schedule sessions in Old Bridge. Defendant asserted that she and Ashley attended therapy until they realized that C. would not be attending.
On February 15, 2007 plaintiff temporarily received residential custody of C. due to defendant's illness. Defendant's daughter, Ashley, explained that defendant "let her go live with [plaintiff] because she was so sick from the cancer and the chemo, that she couldn't take care of herself." Plaintiff certified the parties had previously discussed such a move, but that defendant always resisted until one evening in February 2007, when she called him to say that if he wanted C. he had to take her at that moment. Plaintiff tried to convince defendant to wait until the end of the school year, but defendant refused, wanting C. out of her house immediately. Within the week, C. was living with defendant in Old Bridge. Plaintiff certified that C. suffered from this traumatic experience, but made the best of it, "had very good grades in ninth grade," and was developing a group of friends in her new environment in Old Bridge.
On or about May 7, 2008 defendant, pro se, filed an order to show cause with supporting certification and exhibits, in which she sought to exercise visitation with C. on alternate weekends. Defendant alleged that plaintiff had violated the custody time-sharing provisions of the parties' PSA, was alienating C. from defendant, was not allowing C. to attend a vacation defendant had scheduled, and had unilaterally subjected C. to medical procedures.
Defendant certified plaintiff was responsible for unilaterally having a medical procedure performed on C. on February 25, 2008 that "messed her eye." Defendant further certified that plaintiff alienated C. from defendant during defendant's illness and while she was recovering from her February 2008 heart attack, and that plaintiff prevented defendant from exercising her parenting time, even though he drove past her house every weekend. Defendant also attributed the heart attack she suffered to stress caused by plaintiff and his current wife. Much of the documentation that appears to have been attached to defendant's order to show cause disparages and insults both plaintiff and his current wife.
On May 8, 2008 Judge Torack denied defendant's order to show cause, finding "no credible threat that substantial, immediate, and irreparable harm [would] occur if the injunction [did] not issue." The judge also converted defendant's application to a motion returnable May 30, 2008 and granted defendant two consecutive weekends of temporary overnight visitation pending the return date.
On May 16, 2008 plaintiff filed a cross-motion with supporting certification and exhibits, requesting that the court: (1) deny defendant's requested relief; (2) modify the PSA to provide that plaintiff shall continue to have primary residential custody of C.; (3) modify the PSA to give defendant at least one weekend per month of parenting time, with flexibility based on C.'s academic, athletic and social activities; (4) alter the PSA to provide that, aside from incidental visitation expenses, plaintiff would no longer pay child support to defendant (defendant consented to this request regarding child support); (5) restrain defendant from encumbering the former marital home by lease; (6) execute a deed to herself with a copy of the PSA and execute a non-interest bearing balloon mortgage with an amortization date of December 21, 2011 to plaintiff reflecting plaintiff's one-half interest in the house's value; and (7) compel defendant to share all information and documentation regarding all offers to purchase the former marital home.
In his certification, plaintiff asserted that, prior to the immediate matter, the parties encountered no serious issues pertaining to C. Much of plaintiff's certification explains his version of the facts involving C.'s relationship with defendant, and the process through which plaintiff obtained residential custody of C. Plaintiff also certified that after C. moved into his home, she first visited defendant once a month. However, as time continued, the mother-daughter relationship deteriorated, and C. decided that she no longer wanted to visit with defendant. Plaintiff certified C. was already scheduled to spend ...