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N.H v. H.H

February 2, 2011

N.H., PLAINTIFF-RESPONDENT,
v.
H.H., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1537-09B.

The opinion of the court was delivered by: Jonathan N. Harris, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued December 15, 2010

Before Judges Axelrad, R. B. Coleman, and J. N. Harris.

The opinion of the court was delivered by JONATHAN N. HARRIS, J.A.D.

In this appeal we address a variant of the complementary dispute resolution machinery authorized in Fawzy v. Fawzy, 199 N.J. 456 (2009) and refined in Johnson v. Johnson, ___ N.J. ___ (2010). Defendant H.H. seeks to set aside the parties' Marital Settlement Agreement (the MSA) on grounds that (1) it improperly delegated the final decision regarding child custody and parenting time to a neutral expert, (2) it inequitably distributed the marital estate through overreaching conduct and inadequate disclosure, and (3) it was tainted by improper conduct of a mediator who "diluted [Mrs. H.'s] understanding of the finality of the mediation process." Specifically, Mrs. H. appeals from (1) the dual final judgment of divorce (JOD) entered on March 5, 2010, which incorporated the challenged MSA and made it a component part of the JOD, and (2) a separate order entered on the same date, which granted plaintiff N.H.'s motion for reconsideration.*fn1 Because we are unpersuaded that the Family Part either abused its discretion or misapplied the law, we affirm.

I.

The parties were married in 1991. They have seven children born between 1992 and 1999. Mr. H. is a New Jersey attorney, engaged in the practice of personal injury litigation, and with a criminal law practice devoted to the defense of individuals.

During the marriage, Mrs. H. established an interior design business to manage projects related to Mr. H.'s office properties, as well as the couple's homes.

A.

The parties' marriage was not entirely blissful. By June 2007, the parties recognized that they had serious marital difficulties, which appeared not capable of amicable resolution. This was evidenced by correspondence between Mrs. H.'s present attorney, Ellen C. Marshall, Esq., and Mr. H.'s attorney at the time, Frank A. Louis, Esq., which revealed several problems and disputes that were simmering amidst the family.

On August 22, 2007, Mrs. H. was hospitalized at the Sierra Tucson treatment facility in Tucson, Arizona for, among other things, treatment of suspected addictions and mental and behavioral disorders. After completing a twenty-eight day inpatient program, Mrs. H. returned to New Jersey and the parties attempted reconciliation.

After approximately six months, in April 2008, the spouses engaged the private mediation services of Robert A. Fall (Judge Fall)*fn2 to help them with their unresolved marital troubles.

Judge Fall's initial role was to help the parties reconcile; these efforts were unsuccessful, and in late 2008, the parties began divorce mediation under Judge Fall's sponsorship. According to Mrs. H., at the first mediation session, Judge Fall told her she needed to retain counsel and supplied her with a list of potential attorneys. The list included Linda L. Piff, Esq., who Mrs. H. ultimately retained. Mr. H. was represented by his current counsel, Peter C. Paras, Esq. After a few mediation sessions, Corrine Campi, Esq. was drafted to serve alongside Piff as Mrs. H.'s co-counsel.

At some point during the mediation effort, R. Joseph Gunteski, CPA, was jointly retained to assist in the financial aspects of the spouses' conciliation discussions. The parties had worked with Gunteski and members of his accounting and consulting firm in the past. Mrs. H. asserted that Gunteski's accounting firm prepared the tax returns for her husband's law practice, and Donald A. Cowen, CPA, a member of that firm, served as the parties' accountant. According to Mr. H., it was Gunteski who had knowledge of the family's financial history and prepared the parties' personal income tax returns for many years. At Piff's suggestion, Mrs. H. interviewed a second accountant to assist in the financial aspects of the mediation, but ultimately decided that he was not needed.

B.

After months of discussions, on February 25, 2009, the parties executed the MSA.*fn3 In it, they warranted that they were "fully and adequately informed of the financial structure of the marriage, including their incomes, assets, liabilities and expenses." They acknowledged that their respective attorneys had "fully advised them of their rights to use pretrial discovery . . . in order to ascertain, verify and/or confirm the nature and extent of their respective assets and financial conditions." Both spouses confirmed that they had "communicated to their respective attorneys that they [did] not wish to engage in or compel participation in pretrial discovery beyond that which [had] been accomplished and that they [were] satisfied with the disclosures set forth in [the MSA]." Lastly, the MSA noted, "[e]ach party hereby knowingly waives his or her right to further discovery as provided by the Rules of Court."

Additionally, in signing the instrument, both parties represented that the MSA was entered into "voluntarily, without threat, force, coercion or duress being placed upon their informed consent and voluntary act by the other, or by any other person." Importantly, the MSA provided, [t]he parties each acknowledge that the settlement terms reflected in [the MSA] represent a compromise and negotiated settlement. The parties each acknowledge that they have been informed by their respective counsel of the right to have a court of competent jurisdiction determine all issues arising from the marriage. Each party voluntarily and knowingly waives that right, and accepts the terms of [the MSA] as being final, complete and binding as to property division, support, and the specified incidental issues herein.

Each party acknowledged having a full understanding of the legal consequences of the terms and provisions contained in the MSA, with a belief "that [the MSA] and all of its terms and provisions are fair, just, and equitable." The parties further confirmed that they were represented by independent counsel and were satisfied with the services of such counsel.

The MSA identified Judge Fall as a "third party neutral mediator," and articulated the parties' "great trust and confidence" in his services. Lastly, the MSA expressed the spouses' gratitude for having been "greatly assisted [by Judge Fall] in reaching this [a]greement." Similarly, the MSA identified Gunteski as the parties' "joint accounting expert," confirmed their satisfaction with his work, and thanked him for his services.

C.

Of signal significance to this appeal, the parties also made choices about their children. In the MSA they agreed to be bound by the recommendations of Dr. Charles Katz, Ph.D., who had been retained by them to conduct "a full evaluation of the parties and the children and to render a written report containing recommendations as to the children's best interests, including, but not limited to, recommendations on custody and parenting time."*fn4 The MSA stated:

The parties further acknowledge and agree that it is in the children's best interests to avoid lengthy, protracted and divisive litigation over custody and parenting time issues and that, after due consideration of the children's best interests and the qualifications and reputation of Dr. Katz, hereby agree to be bound and to abide by the recommendations set forth in Dr. Katz's report and to implement said recommendations immediately upon receipt of Dr. Katz's report.

At the time that the MSA was executed by the parties, Dr. Katz had not yet completed the tasks of investigating, evaluating, and writing a report. To accommodate this lag, the MSA provided -- as part of its discussion about Mrs. H.'s anticipated move from Spring Lake to Brielle -- that "the parties shall mediate with Judge Fall a temporary custody and parenting-time plan if Dr. Katz's report has not been received prior to the closing of title on the Brielle, New Jersey property."

D.

On June 8, 2009, Dr. Katz released his comprehensive ninety-three-page Child Custody Evaluation (the Katz report), which bears a date of seven days earlier. In it, Dr. Katz listed (1) the time he spent evaluating both parties, as well as all seven children;*fn5 (2) the fifty-seven documents he reviewed,

(3) the assessment instruments he administered; and (4) the ancillary contact he consulted. Dr. Katz extensively outlined his interviews with both parties, which included their versions of the events leading up to the current situation and their relationship history. The Katz report contains a surfeit of facts and minutiae, together with copious statements from the parties and their children, which are quoted verbatim or paraphrased in rich detail.

Dr. Katz also administered psychological tests to Mr. and Mrs. H. According to Dr. Katz, the spouses' scores on the parent-child relationship inventory were "essentially equal"; however, the personality tests showed Mrs. H. "would clearly be diagnosed with a Personality Disorder with very prominent narcissistic and histrionic dimensions." Her psychological testing scores reflected "chronic psychological maladjustment" and she "rationalizes her difficulties in life, denies responsibility for her actions, and tends to become hostile, resentful, and irritable." Mr. H. showed no signs of significant personality disorders.

Dr. Katz conducted a group interview with each parent (on succeeding days) and six of the seven children. During the interview with the children and Mr. H., the children portrayed their mother as drinking heavily and described specific incidents of public intoxication and erratic behavior. Dr. Katz's impression of the interview was that the children were not coached and they spontaneously offered incidents depicting their mother in a "highly unflattering light," with none of the children defending her conduct.

During the next evening's interview with Mrs. H. and the children, the children told Dr. Katz that their mother was rarely home, and said that she occasionally drinks and drives. One of the children described an incident where Mrs. H. locked herself in her closet with the four youngest children. Dr. Katz's impression of the interview was Mrs. H.'s inability to "perceive the children's pain about her behavior" and "the essence of her defense is that all of this is Mr. H.'s fault."

Dr. Katz also interviewed the children individually. The Katz report provides a wealth of detail about these interviews and contains abundant direct quotes attributed to the children. There were multiple descriptions of incidents of Mrs. H.'s drunken behavior, as well as her frequent absences from the home. A consistent picture emerged from the children depicting Mr. H. as their primary caretaker who provided meals, made sure they were transported to school, and ensured that they were well cared for.

Dr. Katz reviewed reports from mental health professionals Mrs. H. had seen in 2007 leading up to her treatment at Sierra Tucson, as well as her records from that facility. Dr. Katz found that these records all pointed to Mrs. H.'s struggle with alcohol. In addition, Dr. Katz spoke with a therapist who had been treating the family, and reviewed the children's academic histories, finding the younger children, who Mrs. H. ...


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