March 18, 2009
JULIANNE J. ZENN, PLAINTIFF-RESPONDENT,
ROGER ZENN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-529-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 21, 2008
Before Judges Wefing, Yannotti and LeWinn.
In this post-judgment matrimonial matter, defendant Roger Zenn appeals from the September 4, 2007 order of the Family Part that: (1) required him to contribute $7,525 as his share of the parties' daughter's summer camp expenses for 2005 through 2007, and $1,200 towards the child's violin lessons through June 11, 2007, and to continue pay fifty percent of the child's ongoing violin lessons; (2) modified defendant's parenting time with the child; and (3) awarded plaintiff $2,000 in counsel fees.*fn1
Because we conclude that the trial judge's decision is inconsistent with the specific terms of the parties' property settlement agreement (PSA) incorporated into their judgment of divorce, we reverse.
The pertinent factual background may be briefly summarized as follows. The parties were divorced on July 20, 2004. At a prior hearing on June 21, 2004, the parties placed the terms of their agreement on the record before the trial judge. At that time, defendant expressed his specific concern about being consulted regarding expenses incurred on behalf of the parties' child, stating that he had encountered problems in this regard in his previous divorce. At that hearing, defendant told the trial judge, "It boils down to in my previous marriage I had no say at all and I was just given a bill. And I had no input at all." In response, the trial judge stated that "both parties shall be consulted. Put in the language [in the PSA] both parties shall be consulted prior to the child making any determination, any decision."
The child's attendance at summer camp and the allocation of those expenses were also addressed at that hearing. Plaintiff's counsel stated:
As to summer camp, defendant will pay to plaintiff the sum of [$]1900 as a contribution toward the cost of this year's summer camp. As to future years, the parties will confer in advance of a decision being made with respect to [the child's] attendance at summer camp and upon their agreement they will each be responsible for 50 percent of what is incurred.
The parties' PSA contained the following provisions pertinent to these particular concerns:
2. The parties will have equal decision making and input as to all decisions affecting [the child's] health, education, activities and general welfare. Plaintiff shall make all day to day decisions regarding [the child], except during those times when she is in the defendant's care, when he will make such decisions. Except in cases of emergency, neither party shall make any unilateral decision with respect to any major decisions without first obtaining the other parent's consent. All communication may be in person or by the telephone, but must also be in writing via either e-mail or registered mail, and shall be made within seven days of the receipt of the information, unless the timing makes this impractical, in which event the communication shall be made within a reasonable time.
37. Defendant shall pay to plaintiff the sum of $1,900 which represents one [-]half of the cost of [the child's] summer camp for the 2004 year. In future years, the parties will discuss proposals for [the child's] summer camp attendance and shall share the cost upon reaching an agreement. Defendant shall not be responsible for contributing to the costs of a camp program to which he does not agree, but his agreement may not be unreasonably withheld.
38. The parties shall consult regarding extracurricular activities which have a cost component in which [the child] seeks to participate, and shall share those costs on a 50/50 basis, subject to defendant's consent to [the child's] participation, which consent may not be unreasonably withheld. Defendant shall not be require[d] to contribute to the cost of any activities for which he is not consulted or to which he does not agree, subject to the for[e]going. [Emphasis added.]
On June 20, 2007, plaintiff filed a motion to compel defendant to reimburse her fifty percent of the child's summer camp expenses for 2005 through 2007, in the amount of $7,525, and fifty percent of the child's violin lessons, in the amount of $1,200. She also sought counsel fees. Regarding the camp cost, plaintiff certified that the parties' daughter attended the same camp in 2005 and 2006 that she had attended in 2004, "which defendant had reluctantly agreed to contribute to the cost [of] in 2004. . . . Each time I brought up with defendant the subject of [the child's] camp attendance and his obligation to contribute to it, he failed to respond to me in any way." Plaintiff further certified that the child would be attending a different camp in the summer of 2007, at a cost of $7,100. She certified that defendant "simply refused to respond to me when I raised the subject with him." Plaintiff also certified that the violin lessons "commenced in July 2006 and through June 11, 2007, [the child] has attended 40 lessons . . . at a cost of $2,400. . . . Defendant well knows that [the child] attends violin lessons, and that there is a cost."
On July 24, 2007, defendant filed a cross-motion to deny plaintiff's motion and to "[d]irect that plaintiff fully comply with the Final Judgment of Divorce, regarding all notice provisions thereunder, to wit: school, activities, expenditures of extraordinary amounts of money; . . . doctor's appointments, etc."; and to have plaintiff held in violation of litigant's rights for failure to comply with the notice provisions of the PSA. Defendant further sought additional overnight visitation with the child on Wednesdays during the school year, from after school to the following Thursday morning, at which time he would drop her at school; he also sought additional overnight parenting time during the summer weeks that the child did not attend sleep-away camp.
Defendant certified that he was "never consulted" about his daughter's violin lessons or summer camp choices. He noted that plaintiff's motion contained no "documentation" of any "written notice . . . in accordance with the terms and conditions of the [PSA]." Defendant appended a series of e-mails he sent plaintiff which, he asserted, demonstrated his difficulty in "adequately participat[ing] in [his] daughter[']s life[,]" adding, "the provisions of the [PSA] were never utilized, but rather w[ere] negated by plaintiff's unilateral decisions. This is precisely the mischief that the [PSA] sought to remedy."
Regarding his parenting time, defendant quoted from paragraph 3 of the PSA, which provided that:
[t]he parties shall exert every reasonable effort to maintain free access and unhampered contact between [the child] and the other parent. Neither parent shall do anything which may estrange [the child] from the other or injure [the child's] opinion as to either plaintiff or defendant.
Defendant certified that on a number of occasions, "plaintiff intentionally interfered and blocked telephone access by [him] to [his] daughter." He appended a log of the "dates and times" when he claimed such interference occurred. Defendant certified that his daughter had expressed "to [him] on multiple occasions that she would like to be at [his] house more often."
In her reply certification, plaintiff claimed that she "sent defendant e-mails on numerous occasions on these subjects . . . ."
However, she "d[id] not engage in litigation planning and d[id] not preserve all of [her] e-mails for future use." Regarding defendant's request for additional parenting time, plaintiff certified that the child "does not want to go to defendant's home for more time than [she] currently spends [there]."
At oral argument on August 10, 2007, the trial judge, who had also presided over the parties' divorce settlement hearing in 2004, questioned defendant's counsel whether it was "fundamentally fair" to require plaintiff to give defendant notice "before he's liable to pay for one-half of his child's violin lessons, his child's summer camp?" When counsel pointed out the specific provisions in paragraph 2 of the PSA, the judge asked: "[D]oes that say that the plaintiff has an affirmative obligation to give notice and in the event the plaintiff does not, the defendant could basically thumb his nose at what's fair?" Defendant's counsel attempted to refer to a letter he had sent to plaintiff's attorney reminding him of plaintiff's obligation to comply with the notice requirements of the PSA. The judge stated that the letter was "self-serving."
When asked if defendant would have objected to plaintiff's choice of the child's camp for 2007, counsel responded that he would have objected and would have asked to have the child attend Camp Ramah, because, as defendant certified, he would have "considered more appropriate . . . a camp providing a more religious orientation" to the child's Jewish faith. The judge responded: "[T]hat's ridiculous. . . . [T]he child has been going to that camp forever. And now you're going to say no. I want [her] to go to a different camp."
During the course of the judge's ruling that defendant would continue to pay fifty percent of the child's summer camp expenses and violin lessons, his counsel pointed out that plaintiff had appended no proof that actual payments had been made on these expenses, noting that "[t]here's one check attached." The judge acknowledged that he had not read all the attachments to the parties' certifications. Notwithstanding the lack of proof of full payment, the judge ordered defendant to reimburse plaintiff one-half of the sum that she sought.
Regarding defendant's request for Wednesday overnight parenting time, the court granted that modification "limited to . . . when there's no school on Thursdays."
In awarding counsel fees to plaintiff, the trial judge stated: "I find no basis whatsoever for the defendant not paying his half share under the circumstances."
On appeal, defendant raises the following arguments for our consideration: (1) the trial judge erred in failing to enforce the notice provisions of the parties' PSA, and in failing to read the exhibits attached to defendant's motion; (2) the trial judge erroneously denied defendant additional parenting time because the judge deemed him to be a "lesser father" due to his objections to the camp and violin lesson expenses; (3) the judge resolved the parenting time issue on the basis of conflicting certifications, without holding a hearing; and (4) the judge erred in awarding plaintiff counsel fees.
Having reviewed the record in light of these contentions, we agree that the trial judge erroneously disregarded express language in the parties' PSA when he required defendant to contribute to the camp and violin lesson expenses in the absence of any evidence of plaintiff's compliance with the written notice requirement in paragraph 2. Plaintiff relies upon our recent decision in Gotlib v. Gotlib, 399 N.J. Super 295 (App. Div. 2008). However, we do not consider that decision controlling here. In Gotlib, we affirmed a trial court order requiring the father to reimburse the mother fifty percent of the children's unreimbursed medical expenses pursuant to a provision in the parties' divorce judgment that each would be "'equally responsible to provide for the children's medical, dental, orthodontial [sic], opthalmological, or pharmaceutical expenses that are not covered by . . . health insurance.'" Id. at 301. The divorce judgment also required the mother to consult with the father and seek his input on the need for medical services.
Notwithstanding the mother's failure to comply with this latter provision, we nonetheless enforced the father's obligation to contribute to the children's medical expenses, viewing "plaintiff's inaction . . . as 'the result of frustration as much as anything else.'" Id. at 306 (quoting Clarke v. Clarke, 359 N.J. Super. 562, 571 (App. Div. 2003)). That conclusion was based upon the mother's demonstrated attempt to collect unreimbursed medical expenses by a series of letters to the father which he consistently ignored. Ibid.
By contrast, in this case there is no evidence that plaintiff consulted with or gave defendant written notice about the new summer camp expenses or the violin lessons prior to incurring those expenses on the child's behalf. Furthermore, the "payments to offset un-reimbursed medical expenses" at issue in Gotlib were "intended to provide essential benefits to the parties' children." Ibid. (Emphasis added). Here, we are presented with highly discretionary "benefits" which do not so clearly come within "'the child's independent right of support from a natural parent.'" Ibid. (quoting L.V. v. R.S., 347 N.J. Super. 33, 40 (App. Div. 2002)).
Plaintiff asserts that "[i]f defendant [had] articulated a reason why his daughter should not have had these experiences or benefits, the answer to this question might be different . . . ." With respect to the child's summer camp attendance, defendant certified that he would have preferred sending her to a Jewish-affiliated camp, rather than the camp chosen by plaintiff. When defendant attempted to advise the trial judge of the camp he considered "more appropriate[,]" the judge responded, "that's ridiculous."
In sum, we conclude the trial court gave unduly short shrift to defendant's right to rely upon an expressly bargained-for PSA provision requiring plaintiff to give him written notice before incurring the types of expenses at issue here.
Because we reverse the reimbursement provisions in the September 4, 2007 order, we also reverse the counsel fee awarded therein. That issue may be addressed anew at the conclusion of the remand proceedings.
Regarding defendant's cross-motion for visitation, the trial judge acknowledged that he had not read all of the motion papers. Defendant's exhibits documented the parties' disagreements on this issue. We conclude the trial judge acted precipitously in ruling on this issue on this record. In view of the parties' disagreement, on remand the trial judge may wish to consider appointment of a Parenting Coordinator. We take no position on the merits of such an appointment and leave it to the discretion of the judge on remand to determine how best to proceed after developing a more complete record on which to base resolution of this issue. Mackowski v. Mackowski, 317 N.J. Super. 8, 11 (App. Div. 1998).
Reversed and remanded for further proceedings in conformance with this opinion. We do not retain jurisdiction.