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Bell v. Bell

August 10, 2009


On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Essex County, Docket No. FM-07-1644-02.

Per curiam.


Submitted: October 8, 2008

Before Judges Cuff, Fisher and Baxter.

In this post-judgment matrimonial appeal, plaintiff Deborah Bell seeks review of two orders, both of which concern the ongoing difficulties between the parties over custodial and parenting time issues of their three children but primarily their oldest daughter. One order reappointed the attorney who had served as guardian ad litem in the pendente lite phase of the proceedings; the other denied plaintiff's motion to remove the guardian ad litem following her reappointment during the post-judgment phase. Plaintiff's objections to both orders are premised on the failure of the motion judge to conduct a plenary hearing and the qualification of the appointed attorney to serve as the guardian ad litem.

Plaintiff and defendant Harvey Bell married on June 22, 1992. Three daughters were born during the marriage. The oldest was born in November 1992, the next in February 1994, and the youngest in April 1998. Plaintiff filed a complaint for divorce in January 2002. A dual judgment of divorce was entered on March 30, 2004. The terms by which the parties dissolved their marriage were incorporated in two agreements: a property settlement and support agreement (PSA) and a custody and timesharing agreement (CTA). The latter agreement provided that all parties would follow the advice and recommendations of Toby Kaufman, Ph.D., and Karen Steinfield, Psy.D., to effectuate a reunification between plaintiff and the parties' oldest daughter. Kaufman conducted therapeutic mediation for the couple and their oldest daughter; Steinfield was the parenting coordinator. Kaufman, however, stopped treating plaintiff and her daughter in May 2004 and Steinfield resigned from this case in May 2005.

Some background is in order regarding the relationships between the parties and their oldest daughter to place the terms of the CTA and the subsequent motion practice in context. On August 9, 2002, eight months after the complaint for divorce had been filed, the Division of Youth and Family Services (DYFS) received reports that the oldest child had been neglected and the agency substantiated those reports. DYFS removed the then nine-year-old girl from plaintiff's custody and placed the child with defendant. Since the removal there has been no meaningful relationship between plaintiff and her daughter. Plaintiff refused to sign the DYFS prepared case plan because she believed the removal was unreasonable and also moved to reinstate the pendente lite order granting joint custody of the three children to the parties.

At a hearing on September 18, 2002, DYFS explained the reasons for the removal of the oldest daughter, and its decision to place the child with her father. The judge ordered that plaintiff and her oldest daughter commence therapeutic mediation with David Brodzinsky, Ph.D., plaintiff to commence therapy and undergo a psychological evaluation. The judge restored equal joint custody of the two other children, and appointed Jamie Von Ellen as guardian ad litem for the children. An order reflecting these rulings was not entered until December 23, 2002. Unfortunately, by the time this order was entered, Brodzinsky had stopped the therapeutic mediation sessions between mother and daughter.

In early 2003, the parties agreed to attend joint sessions with Brodzinsky. Apparently, Brodzinsky had re-entered the case because another order was entered on March 3, 2003, designating Brodzinsky as therapeutic mediator. On October 8, 2003, plaintiff filed a motion for a reunification plan. In addition to setting forth her desired plan, plaintiff sought an order prohibiting defendant and his family from interfering with her contact with the daughter. This motion was eventually withdrawn, the parties reached agreement on all issues, and the dual judgment of divorce was entered on March 30, 2004.

In late 2005, plaintiff filed an emergent application requesting transfer of custody of her oldest daughter from defendant to her. The oldest daughter was now thirteen years old. The motion was not treated as an emergent matter. It was eventually heard in February with a cross-motion filed by defendant which addressed custody and visitation issues. On February 9, 2006, the judge ordered Von Ellen reinstated as guardian ad litem and Linda Schofel appointed as parenting coordinator. The judge ordered both to issue a report no later than March 10, 2006, concerning the oldest daughter's current status and any recommendations concerning the issue of reunification between mother and daughter. They were also ordered to confer on what, if any, access would be appropriate to institute between mother and daughter on a pendente lite basis.

The guardian ad litem submitted her report on March 29, 2006. We include an extended discussion of this report because the adoption of this report and the order to implement its recommendations are major focuses of this appeal.

In her March 2006 report, the guardian ad litem confirmed that the oldest daughter had resided exclusively with her father since August 2002. Following her interview with plaintiff, Von Ellen reported that plaintiff plainly and clearly holds the court system, the mental health professionals, the attorneys, and her former husband responsible for the absence of reunification. Von Ellen reported that plaintiff has attempted various forms of informal communication to initiate contact with her daughter. She also reported that plaintiff believes that her daughter wants to have a relationship with her but is fearful of her father's reaction.

Von Ellen also reported that plaintiff resisted resumption of therapeutic visits because the reunification process should occur in a relaxed setting. She also related that plaintiff expressed her opinion that defendant actively interferes with the reunification process.

In her report, the guardian ad litem also related her interview with defendant. She noted that defendant advised her that the other children needed therapy but plaintiff resisted this effort. Defendant also expressed his opinion that plaintiff supplied information to the Internal Revenue Service, causing it to initiate an audit, and that plaintiff attributes the difficulties between her and her daughter to an Orthodox conspiracy. In addition, defendant reported that ...

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