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Cerza v. Fresco

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 counsel cited examples of what defendant viewed as the intrusiveness of the parent coordinator's involvement.

In response, plaintiff's counsel urged that the increased involvement of the coordinator was primarily, according to plaintiff, due to defendant's many instances of non-compliance with the provisions of the FJOD. Addressing defendant's claimed financial hardship, plaintiff's counsel noted that defendant failed to submit a case information statement that would demonstrate financial hardship occasioned by the continued use of a parent coordinator.

At the conclusion of oral argument, the court entered an order requiring counseling for the children and directing that plaintiff, rather than the parent coordinator, select a therapist from the list of therapists covered under defendant's health plan. The court's order otherwise denied: (1) defendant's request to remove the parent coordinator; (2) plaintiff's request to have the parent coordinator interview the children; and (3) each party's request for counsel fees. The present appeal followed.

On appeal defendant contends:

POINT I

THE COURT ERRED WHEN IT FOUND THAT THE CONTINUOUS AND EXPENSIVE INVOLVEMENT BY THE PARENT COORDINATOR ENCOURAGED BY PLAINTIFF AND THE COORDINATOR IN THE FAMILY'S LIFE SHOULD CONTINUE AD INFINITUM SIMPLY BECAUSE THE PARTIES AGREED TO UTILIZE ONE IN 2005.

POINT II

THE COURT ERRED IN NOT ASSESSING COUNSEL FEES AGAINST PLAINTIFF IN DEFENDANT'S FAVOR.

In declining to remove the parent coordinator, the motion judge, beyond noting that defendant agreed to the appointment of the coordinator, did not address any of the issues that defendant raised as demonstrating good cause for the parent coordinator's removal. Rather, the court touted the coordinator's qualifications, experience as a human being who knows how to work with people, and the fact that she is a caring person and wonderful parent coordinator. However, defendant's objection to the continued necessity for the parent coordinator did not challenge her qualifications or her character as a human being. Defendant was entitled to have the court specifically address the allegations presented to the court which defendant urged demonstrated good cause for the parent coordinator's removal. The court's statement of reasons did not fulfill the court's obligation to support its decision with appropriate factual findings.

Rule 1:7-4(a) requires a judge to make findings of fact and state conclusions of law "on every motion decided by a written order that is appealable as of right." Our cases have repeatedly stressed the importance of a trial judge's responsibility to provide findings and conclusions to assure informed appellate review. Rosenberg v. Bunce, 214 N.J. Super. 300, 303 (App. Div. 1986). As our Supreme Court has made clear:

[The] failure to perform that duty "constitutes a disservice to the litigants, the attorneys and the appellate court."

Kenwood Assocs. v. Bd. of Adj. Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976).

Naked conclusions do not satisfy the purpose of [Rule] 1:7-4. Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions. [Curtis v. Finneran, 83 N.J. 563, 569-70 (1980).]

We therefore vacate that portion of the August 28, 2009 order denying the removal of the parent coordinator and remand to the trial court for a statement of reasons that addresses the specific factual allegations presented as a basis for the parent coordinator's removal and, if deemed necessary by the court, for a further expansion of the record.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

20101012

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