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Cerza v. Fresco

October 12, 2010

GERALD M. CERZA, PLAINTIFF-RESPONDENT,
v.
ANGELA FRESCO, F/N/A CERZA, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-273-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 15, 2010

Before Judges Sapp-Peterson and Simonelli.

In this post-judgment matter, defendant appeals from the Family Part order denying her motion to remove the court-appointed parent coordinator. We vacate that portion of the court's order denying defendant's request to remove the parent coordinator and remand for further proceedings.

The parties were divorced in 2005. They are the parents of twins, who were eight years old at the time of the divorce. The parties executed a Marital Settlement Agreement (MSA) and Agreement Fixing Custody and Parenting Time (Custody Agreement) which were incorporated into the Final Judgment of Divorce (FJOD). The Custody Agreement included a provision in which the parties agreed to utilize the services of a parent coordinator to resolve certain issues. The language in the Custody Agreement specifically provided: "If there are any disagreements between the parties relative to the terms and provisions of the within Final Order Fixing Custody and Parenting Time, a parent coordinator . . . shall be appointed by separate [o]rder."

The parties selected the present parent coordinator after their first parent coordinator retired in August 2008. On June 7, 2009, defendant filed a motion seeking to remove the coordinator, to have plaintiff choose a therapist for the children from her medical plan, and for counsel fees.

In her certification submitted in support of the motion, defendant's primary objection to the coordinator is the extent and frequency of her involvement in issues surrounding the children, many of which defendant argued did not require her input. Plaintiff cross-moved seeking an order holding defendant in violation of litigant's rights for her willful failure to:

(1) cooperate with the parent coordinator; (2) follow the terms of the order appointing the parent coordinator; (3) allow the parent coordinator to interview the children; and (4) permit the parent coordinator to select a therapist for the children.

Prior to oral argument, the court issued a tentative ruling denying defendant's request to remove the parent coordinator. The proposed order included a statement of reasons in which the court stated that defendant's request to remove the parent coordinator was denied because "[defendant] agreed to a [p]arenting [c]oordinator[,]" specifically the particular coordinator selected. Because the tentative decision was not accepted, the court conducted oral argument during which defendant's attorney argued that defendant had three objections to the continued appointment of the parent coordinator.

Defense counsel first argued that the cost of the parent coordinator was presenting an extreme financial hardship to defendant and pointed out that the first parent coordinator billed a total of $700, averaging a payment of $41 per month for defendant. In contrast, the present coordinator had billed approximately $12,163.30 for a twelve-month period of work.

Second, counsel argued that defendant was concerned that the issues being addressed by the parent coordinator were not "major life-shattering issues where she is refusing parenting time or refusing . . . to communicate about medical issues. These are everyday issues that could certainly be addressed between her and [plaintiff] without the need of a parenting coordinator."

Third, defense counsel argued that the parent coordinator's involvement with the parties' issues had become "very intrusive." Counsel noted that the order appointing the parent coordinator expressly stated that "the parent coordinator" does not function as "a psychotherapist, a counselor, an attorney, a mediator, or an advocate for the children" and that the boundaries of her role had become blurred, warranting her removal. Counsel provided examples of the parent coordinator's intrusiveness, including her suggestion that the parties permit her to select the therapist for the children and involvement in certain parenting time issues although she had not been asked to do so, and then charging for her time.

Defense counsel asked the court to recall that when the parties had been before the court in December 2006, the court felt that "plaintiff's communications [with defendant] were intrusive [and] voluminous. They were way, way too above the mark." Counsel pointed to the order that resulted from that proceeding in which the court limited communications between the parties to once during a twenty-four hour period. Defense ...


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