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Josephine S. Penza v. Robert A. Penza

December 16, 2010

JOSEPHINE S. PENZA, PLAINTIFF-APPELLANT,
v.
ROBERT A. PENZA, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-687-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 8, 2010 - Decided Before Judges Sabatino and Alvarez.

Plaintiff Josephine Penza appeals an order entered on November 18, 2009, which she asserts erroneously modified a provision in a judgment entered in July 2003 after a divorce trial. For the reasons stated below, we affirm.

One child was born to plaintiff and defendant Robert Penza, a daughter. Plaintiff's brief estimates that there have been forty-two post-judgment motions filed in the intervening six years since the divorce was granted. The judge who entered the order being appealed indicated that this was the third time she had presided over the parties' disputes regarding their child.

Few issues were agreed to by the parties in the divorce action; the divorce judge therefore detailed the manner in which decisions would be made related to the child's welfare. Although plaintiff was designated the primary residential parent, the custody section of the divorce judgment requires that: "[t]he parties should consult with one another on an ongoing basis in accordance with the following framework designed to give the parties some direction . . . ." The obligation imposed on the parents to consult, discuss, and confer with one another is reiterated in several paragraphs. Paragraph five of the custody section specifies: "[o]n other matters, such as selection of medical professionals, school programs, and school curriculum, the [p]laintiff, Josephine Penza[,] will make the decision after consultation with the [d]efendant, Robert Penza."

The motion judge issued the November 18, 2009, order being appealed after consideration of certifications submitted by the parties, as well as counsel's oral arguments. Two days earlier, on November 16, 2009, defendant had filed an order to show cause with the trial court, seeking to restrain plaintiff from withdrawing the parties' daughter from Christ the King School, which she had attended from kindergarten through the fifth grade. The motion judge denied the relief and permitted the child to remain at the school where plaintiff had transferred her, St. Joan of Arc.

After reflecting upon the contentious history of the case and the child's best interests, the motion judge modified plaintiff's decision-making authority, granted in the divorce judgment, as to the child's schooling. The motion judge directed that "[p]laintiff shall make an application to the Court before making a decision to change [the child's] school in the future. The parties are free to come to their own agreement, by contacting their attorneys, regarding a new school." The court also denied both parties' application for counsel fees. Plaintiff raises the following points:

I. THE TRIAL COURT ERRED WHEN REQUIRING THE PLAINTIFF TO FIRST FILE AN APPLICATION WITH THE COURT, PRIOR TO CHANGING THE PARTIES' DAUGHTER'S SCHOOL

A. The Trial Judge Determined That Ms. Penza Had Consulted With Mr. Penza Regarding a Change in [the child's] Schooling, as Required, and She Did Not Find a Change in Circumstances Warranting a Change in the Law of This Case. Thus, the November 18, 2009 Order Improperly Modifies the Orders Previously Entered in This Case.

B. The Trial Judge Abused Her Discretion In Restraining Ms. Penza's Ability to Change [the child's] School as this Relief Was Not Requested by Either Party.

II. THE TRIAL JUDGE ERRED IN FAILING TO AWARD COUNSEL FEES TO THE PLAINTIFF UNDER RULE 5:3-5(C)

Plaintiff contended that she transferred the child from one school to another because the principal of Christ the King met with the child regarding her failure to tell her father about a school event in which she was a participant. Plaintiff believed that the father and the principal had become friendly and thereby formed an inappropriate alliance to her detriment. She claimed that the meeting between principal, teacher, and child was so traumatic that the child justifiably refused to return to the school. Nonetheless, the child had always done well at Christ the King, and plaintiff was active in the school community, including substantial involvement with the Parent Teacher Association. Defendant denied having been consulted by plaintiff prior to the move, and he objected to the transfer being made in the absence of consultation.

On appeal, plaintiff seeks to limit the obligation imposed upon her in the divorce decree to merely informing defendant of her decisions after they are made. Her interpretation of the relevant language is that she and she alone has the exclusive right to make final decisions. Defendant differs, asserting that the obligation to consult would be meaningless if plaintiff is correct, ...


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