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Feldman v. Feldman

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 27, 2010

JANIS OOLIE FELDMAN, PLAINTIFF-RESPONDENT,
v.
GREGORY L. FELDMAN, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-200-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 14, 2010

Before Judges Wefing, Payne and Koblitz.

In this post-judgment matrimonial matter, defendant Gregory L. Feldman appeals from numerous provisions of an order denying reconsideration entered in the Family Part on December 1, 2008, nunc pro tunc to October 30, 2008. For the reasons that follow, we affirm all but one of the decisions. We reverse and remand for a speedy plenary hearing with regard to the child's schooling only.

I.

The pertinent factual background may be summarized as follows. The parties were married on November 28, 1992, and have one child, K., born in 1996. The parties were divorced by a dual judgment entered on August 9, 2005. The judgment incorporated a custody and parenting time agreement including the following language:

1. The Plaintiff, Janis Oolie-Feldman (hereinafter "Mother") shall be custodial parent of the minor child, [K.] Feldman. The Defendant, Gregory L. Feldman (hereinafter "Father"), shall have parenting time as provided herein. Mother shall make all decisions regarding the child. As to major decisions that are not routine day to day decisions, the Mother shall give advance notice to the Defendant of any decision in sufficient time so as to permit Defendant to voice any objection, or make court application, if appropriate. Father shall make daily decisions when [K.] is in his care. Each party shall notify the other as soon as possible in the event of any emergency regarding the child.

2. The Father shall pay child support in accordance with the New Jersey Child Support Guidelines utilizing Father's imputed income of $51,400 and plaintiff's actual income of $53,000. Work related child care and health insurance costs related to the child shall be factored into said Guidelines. . . . .

9. The parties acknowledge that their daughter attends Solomon Schechter school. They agree that their daughter shall continue to attend Solomon Schechter. The parties shall both cooperate with the schools in providing all financial and other requested information in timely fashion so as to not endanger [K.'s] continued enrollment. It is understood that the school divides the tuition costs equally and then reviews each parent [sic] financial situations [sic] to determine his or her amount to be paid.

The parties agree to participate and cooperate in said procedure.

The following month, the court on its own motion appointed psychologist Dr. Sharon Ryan Montgomery as a "Parent Coordinator" to "assist the Parties and the child to promote the child's best interest in general." This September 30, 2005, order spells out the responsibilities and role of the parent coordinator, which includes the possibility of preparing reports for the parties or the court.*fn1

The parties entered into a consent order regarding parenting time on October 5, 2006, which expanded defendant's parenting time by three nights per month, specified that it did not modify the previously set child support, and acknowledged that K. was attending a new Solomon Schechter Day School (SSDS) in East Brunswick, her third such religious school.*fn2

Numerous post-judgment applications were made by both parties.*fn3 Only those post-judgment matters relevant to the issues before us are set forth in this opinion.

Plaintiff's request to enroll K. in sixth grade at public school was denied by the trial judge, who explained her reasons in an attachment to the April 23, 2007, order as follows:

the Parties [sic] agreements, the Final Judgment of Divorce and the Beth Din*fn4 all indicate that that [sic] [K.] continue to attend school at SSDS. As such, [K.'s] best interests were presumably the pole star of the Final Judgment of Divorce and subsequent Orders. Plaintiff here offers no change of circumstance that would go to the heart of [K.'s] best interests. Rather, Plaintiff cites Defendant's child support arrears and her alleged inability to pay private school to [sic] tuition as the basis for her application. Defendant's arrears do not affect [K.'s] best interests with regard to her education.

The trial judge was also troubled by the fact that plaintiff scheduled a meeting at the public school without notice to defendant in total disregard of the parents' agreements to cooperate in school decisions. Plaintiff also involved ten-year-old K. in the school decision, contrary to the advice of Dr. Montgomery, the parent coordinator.

In light of voluminous, continuing motion practice, on June 29, 2007, the court ordered the parties to attend a mediation session with court-appointed mediator Joan Geiger prior to filing any new motion.

A newly-assigned trial judge signed the defendant's Order to Show Cause on June 5, 2008, among other things requiring plaintiff to pay for her past-due share of the 2007-2008 SSDS tuition within five days. Due to her unemployment, plaintiff cross-moved to enroll K. in public school. Both parties appeared without counsel on June 20, 2008, when the judge sua sponte interpreted the parties' agreement as to K.'s religious schooling to terminate after the eighth grade. His August 12, 2008, order includes:

C. It is ordered that in conformance with Paragraph 1 of the Judgment of Divorce, the Plaintiff, Janis O. Glasberg*fn5 , plaintiff, shall solely decide where [K.], the infant child of the marriage, shall attend high school (Grades 9 through 12), which is expected to be within the public school system where she resides with her mother.

The court also substituted a new mediator, John W. Thatcher, due to plaintiff's dissatisfaction with the original court-assigned mediator. The judge asked defendant to prepare an order, but ultimately on August 12, 2008, signed an order prepared by plaintiff, including some language not specifically included in his oral decision. The defendant complains of the following language in this order:

D. The Court confirms that, in conformance with Paragraph 1 of the Judgment of Divorce, the Plaintiff, Janis O. Glasberg, is the custodial parent and the sole decision maker and that the Defendant, Gregory L. Feldman, shall not interfere with the decisions of Janis O. Glasberg

E. The Defendant shall not engage Dr. Montgomery when he is dissatisfied with day to day decisions of the Plaintiff in [K.'s] routine activities.

A week later, on June 26, 2008, the judge gave the parties a written opinion regarding three other motions filed by the defendant, one on May 21, 2008, and two on June 4, 2008, requesting in total sixteen different forms of relief. The judge suggested that defendant could file a motion for reconsideration if appropriate, rather than state his disagreements with the written opinion, given the lateness of the hour and the complexity of the issues.

Defendant's subsequent consolidated motions for reconsideration, including a request that K. remain in SSDS through high school, were denied by the court on December 1, 2008, nunc pro tunc as of October 30, 2008. The judge assessed $900*fn6 in counsel fees against defendant due to defendant's repeated filing of over-long, single-spaced certifications (contrary to R. 5:5-4 and R. 1:4-9) and his bad faith in filing motions for reconsideration which did not meet the standard for such motions. R. 4:49-2, Cummings v. Bahr, 295 N.J. Super. 374, 384-85 (App. Div. 1996). The judge noted that defendant is an attorney and should be familiar with the New Jersey Court Rules.

II.

On appeal, defendant raises the following arguments for our consideration:

POINT I. THE COURT ERRED IN MODIFYING THE TERMS OF THE PARTIES' AGREEMENT CONCERNING THE CHILD'S ATTENDANCE AT SOLOMON SCHECHTER SCHOOL.

POINT II. THE COURT ERRED IN THE ENTRY OF THE ORDER AS TO ORDER TO SHOW CAUSE ON JUNE 20, 2008 ENTERED ON AUGUST 12, 2008.

POINT III. BY THE ENTRY OF PLAINTIFF'S ORDER OF AUGUST 12, 2008 THE COURT MODIFIED THE ROLE AND AUTHORITY OF THE PARENT COORDINATOR AS SET FORTH IN THE SEPTEMBER 30, 2005 ORDER.

POINT IV. IT WAS ERROR FOR THE COURT TO ENTER SANCTIONS AGAINST DEFENDANT FOR FILING FOR RECONSIDERATION AT THE SUGGESTION OF THE COURT.

POINT V. IT WAS ERROR FOR THE COURT ON JUNE 20, 2008 TO REPLACE THE COURT APPOINTED MEDIATOR AS A RESULT OF PLAINTIFF'S FAILURE TO COMPLY AND TO FAIL TO SANCTION PLAINTIFF.

POINT VI. THE COURT ERRED IN NOT ADDRESSING THE RELIEF REQUESTED BY THE DEFENDANT FOR CHILD SUPPORT CREDITS FOR ADDITIONAL OVERNIGHTS.

POINT VII. THE COURT ERRED BY NOT PERMITTING THE PARENT COORDINATOR TO SUBMIT A REPORT TO THE COURT WITH REGARD TO THE STATUS OF THE MINOR CHILD.

POINT VIII. THE COURT ERRED BY NOT ADDRESSING THE PLAINTIFF'S FAILURE TO COMPLY WITH THE JUDGMENT OF DIVORCE AND PREVIOUS ORDERS FOR THE RETURN OF PERSONALTY, IRA MONIES AND OUT OF POCKET EXPENSES.

POINT IX. THE COURT ERRED BY NOT FINDING THE PLAINTIFF IN BREACH OF PREVIOUS COURT ORDERS AND ENTERING SANCTIONS.

Having reviewed the record in light of these contentions and the applicable law, we conclude that defendant is entitled to a remand only on the issue of K.'s attendance in public or private religious high school. On all other issues we affirm substantially for the reasons set forth by the trial judge in his written reasons dated October 30, 2008, and attached to the order of December 1, 2008, as well as the reasons attached to the original order of July 11, 2008.

The return date on defendant's Order to Show Cause to enforce plaintiff's obligation to pay her share of K.'s SSDS school bill and plaintiff's cross-application to allow her to enroll K. in public school was June 20, 2008. Neither party petitioned the court to interpret the length of time the divorce judgment required K. to remain in SSDS. Thus, neither party was prepared to address the issue of whether the agreement anticipated K.'s attendance at a religious high school.

Although the parties were put under oath at the beginning of the June 20, 2008, hearing, they were not afforded a true plenary hearing. Cross-examination is an indispensable hallmark of a plenary hearing. They did not have the opportunity to question each other, call witnesses or put in documentary evidence. Plaintiff and defendant made their arguments to the judge and answered his questions. Plaintiff at that time indicated she wanted to send K. to public school for her upcoming seventh grade year primarily for financial reasons. Plaintiff claimed to be out of work and unable to pay her share of the private schooling ($6,000 less any financial aid the school provided). The court determined that plaintiff would have to continue to pay her share of the SSDS for K. through eighth grade.

Although neither party requested the judge to interpret the duration of the SSDS school obligation, he interpreted the parties' agreement regarding private Jewish school to expire after middle school. The judge's ruling on K.'s schooling was not only unsolicited, but also premature. See Levine v. Levine, 322 N.J. Super. 558 (App. Div. 1999) (finding it inappropriate for the trial judge to decide where the child was to attend high school when the child had just begun middle school). In June of 2008, plaintiff lived in Pennington, New Jersey, further from the West Orange SSDS high school than her current home in East Brunswick.

Attending SSDS high school in West Orange would undoubtedly be inconvenient for K. and her mother due to the lengthy commute. It would be more expensive than public high school for both parents. The wording in the agreement is not, however, clear as to how long the parties intended K. to go to SSDS. The defendant claims that they intended private Jewish school to go through high school.

Plaintiff does not specifically address her intent in agreeing to the school provision. She argues that it is no longer feasible for K. to attend SSDS.

Matrimonial agreements are governed by the principles of contract law and are to be interpreted according to the parties' intent at the time of drafting. Pacifico v. Pacifico, 190 N.J. 258 (2007) (requiring an evidentiary hearing when the parties to a divorce agreement disagree about the intent of an ambiguous term in their agreement). A plenary hearing should be conducted here to elicit testimony from the parties, subject to cross-examination, as to what their intent was at the time they entered into the agreement. Pacifico, supra, 190 N.J. 258. In such a proceeding, the judge will have a chance to assess the credibility of the parties' assertions, as tested through the rigors of cross-examination. Eaton v. Grau, 368 N.J. Super. 215, 222 (App. Div. 2004). If, indeed, the court finds that their intent was to terminate the SSDS obligation prior to high school, then the court's initial ruling will stand.

If the court finds that the parties did not have a meeting of the minds as to this issue, then the court may impose an SSDS end-term based on what is reasonable under the current facts and circumstances, with K.'s well-being paramount. Id. at 266. In applying the best interests of the child standard to determine whether a child should attend public school or private religious school, the court's stated objective is to "minimize, if possible, conflicting pressures placed upon a child and to give effect to the reasonable agreement and expectations of the parents concerning the child's religious upbringing before the marital relationship foundered." Levine supra, 322 N.J. Super. at 566 (quoting Asch v. Asch, 164 N.J. Super. 499, 505 (App. Div. 1978)).

If the court finds that the parties intended K. to remain in SSDS through high school, then the court would have to consider whether circumstances have changed in such a manner so that K.'s best interest is best served by a departure from the agreement to permit her to continue in public high school. Lepis v. Lepis, 83 N.J. 139 (1980). If this determination becomes necessary, the judge may well choose to interview K. since she is already attending public high school. Trial judges retain broad discretion to examine children in cases where changed circumstances put their best interests at issue. See, e.g., Levine, supra, 322 N.J. Super. 558; see also N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 168 (2003) (citing N.J. Div. of Youth & Family Servs. v. S.S., 185 N.J. Super 3 (App. Div. 1982) cert. denied, 91 N.J. 572 (1982)). Although Dr. Montgomery recommended years ago that K. be left out of the school decision, at this point the child is enmeshed in the issue. "The child has a right to be heard and voice an opinion to the finder of fact and ultimate decision-maker." Mackowski v. Mackowski, 317 N.J. Super. 8, 11 (1998) (requiring that the judge, not a medical professional, interview a child in a custody dispute). Given the emergent nature of this decision and the child's age, it would be preferable for the judge to interview the child rather than an expert who would have to spend time preparing a report. See id.

We point out to both parents that in our view, K.'s well-being may well be affected in a more serious way by whether or not her parents have the ability to agree than by where she attends high school. The trial court has made every attempt to assist the parents in resolving their high-conflict interactions by appointing a parent coordinator and a mediator. It is not too late for the parties to take advantage of this assistance for the sake of their daughter. As Judge Kestin so eloquently stated in another high-conflict dispute involving a child, the parents must come to understand that security, peace of mind and stability are every child's right. Their inability to deal constructively with each other deprives their [daughter] of [her] due, which is within their power to give. Professed love is no substitute where it results in turmoil and uncertainty for the child who is pulled in opposite directions by [her] parents. This child will receive what [she] desperately needs in this regard only if both parties are genuinely prepared to subordinate their individual needs to the best interests of the child and begin to communicate with each other solely for the benefit of the child.

We urge the parties to make an effort to resolve this matter between themselves with professional assistance. Otherwise, there is a substantial risk that they will doom their child to a future of conflict, sadness and certain psychological harm. [Tahan v. Duquette, 259 N.J. Super. 328, 336 (App. Div. 1992).]

Unfortunately, our review of this June 20, 2008, decision was delayed somewhat by the defendant's failure to provide transcripts and file a timely appeal brief. Now K. has begun her freshman year of high school. When making its determination, the court will, of course, have to factor in the disruption to K. of another school move. Due to the emergent nature of this decision, we remand to the trial court for a hearing and decision to be concluded within thirty days.

Affirmed in part, reversed and remanded in part for further proceedings in conformance with this opinion. We do not retain jurisdiction.


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