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Joel A. Friedman v. Michelle P. Friedman (N/K/A Frank

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 7, 2011

JOEL A. FRIEDMAN, PLAINTIFF-RESPONDENT,
v.
MICHELLE P. FRIEDMAN (N/K/A FRANK), DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-495-00D.

Per curiam.

New Jersey Court of Appeals a2489_09.pdf

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 30, 2010

Decided Before Judges Graves and Messano.

In this post-judgment matrimonial matter, defendant Michelle P. Frank appeals from an order dated December 17, 2009, imposing monetary sanctions payable to her former husband, plaintiff Joel A. Friedman. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The parties have two children, now fifteen and twelve years old. Following a trial in 2001, the parties were granted joint legal custody, and the court determined that "the best interests of the Friedman children would be served by a true shared-parenting residential custody arrangement, i.e. one week with each parent, to include a Wednesday evening visit with the other parent, if practicable." The trial judge noted that a shared parenting arrangement "would foster each child's relationship with each parent to the fullest extent possible."

In an order dated October 2, 2002, the court also established a parenting time schedule for the holidays, including Thanksgiving. Nevertheless, the parties continued to experience parenting time problems and, on August 8, 2003, the court appointed Linda Schofel, Esq., to serve as "Co-Parenting Coordinator." Unfortunately, the problems continued, and on February 2, 2007, defendant was sanctioned for "purposefully and blatantly" disregarding "the parties' parenting schedule and the Court-appointed parent coordinator's recommendations." In March 2009, the court again ordered defendant to cooperate with the parenting coordinator.

On November 18, 2009, plaintiff filed a motion to compel defendant to provide him with a document required to obtain passports for the children "in advance of their December trip."

Plaintiff also asked the court to sanction defendant for failing to comply with the parent coordinator's recommendations and a prior order dated November 6, 2009, requiring defendant to "reimburse Plaintiff in the amount of $179.70 within seven days."

Plaintiff subsequently amended his motion to include "additional relevant facts." Plaintiff asserted that defendant "violated our parenting schedule" on Wednesday, November 25, 2009, when she "signed both children out of school and drove them to [Virginia]." Plaintiff asked the court to sanction defendant "for making unilateral changes" to the parenting schedule "and for failing to cooperate with the recommendations of the Parenting coordinator." Plaintiff's certification included the following:

So it is clear to the Court, my parenting week of 11/22/09--11/29/09 was cut short by the Defendant such that I had our children only from Sunday evening 11/22/09 through Wednesday morning 11/25/09 when they left for school, with no notice as to what the Defendant planned to do other than what the children told me might happen. It cannot be in the best interests of the children to not be able to count on their parenting schedule, such that they are at the whim of the Defendant taking them out of school early during my parenting week to satisfy her own needs. The children need stability and consistency, which they can count on from me.. . . .

As the court is aware, the Defendant maintains homes in both Hampton, VA and in South Brunswick, NJ. . . . The Defendant spends most non-parenting weeks (i.e. every other week) in VA. . . . This is her choice and should not affect her parenting time in NJ every other week; however, when she shows a pattern of violating court Orders, of taking our children out of state when it is not her parenting time, and of refusing to communicate with me regarding her departure date/time and her return date/time for her trips out of state, it is a cause for concern and is very troubling to everyone involved, especially our children.

In her reply certification, defendant stated that plaintiff's motion was "moot" because she had sent the document he requested "directly to the passport office." Defendant also claimed that plaintiff was not "flexible or cooperative which makes co-parenting extremely difficult," and she alleged that the parent coordinator was not effective because she "has become too close to Plaintiff." In addition, defendant stated that plaintiff's motion "should be dismissed for lack of jurisdiction," and she asked the court to replace the parent coordinator with someone who "would be more effective and beneficial to the children."

In an oral decision on December 17, 2009, the motion judge noted that defendant's appeal from "an August 2009 order" regarding child support was still pending. However, he found that he had jurisdiction to decide plaintiff's motion because it did not involve "the issue of child support." The court also found that defendant failed to provide "any substantial circumstances that would indicate that Ms. Schofel's services should be replaced with another co-parenting coordinator, rather the defendant needs to . . . cooperate with Ms. Schofel."

With regard to plaintiff's motion, the court agreed with defendant that plaintiff's document request was moot. However, it found that defendant violated the parties' parenting schedule and the recommendations of the parent coordinator by extending "the children's time with her, in Virginia," and defendant was ordered "to pay Plaintiff the sum of $500.00 as a sanction." The court also found that defendant "exhibited a history of failing to cooperate with the plaintiff," and defendant was ordered to comply with the order entered on November 6, 2009, and to reimburse plaintiff for the costs of filing and serving his motion.

On appeal, defendant presents the following arguments:

POINT I

THE COURT ERRED IN HEARING PLAINTIFF'S MOTIONS WITHOUT FIRST OBTAINING LEAVE FROM THE APPELLATE DIVISION.

POINT II

THE COURT ERRED IN DENYING A CHANGE IN THE PARENTING COORDINATOR AND A RE-ALLOCATION OF THE COORDINATOR'S COSTS.

Based on our review of the record and applicable law, we have concluded that these arguments are clearly without merit.

R. 2:11-3(e)(1)(E). We add only the following comments.

Rule 5:3-7(a) addresses violations of parenting time

orders, and it authorizes the imposition of a monetary sanction when "a party has violated an order respecting custody or parenting time." Moreover, the pendency of defendant's appeal did not divest the Family Part of jurisdiction to hear plaintiff's motion because a trial court has continuing jurisdiction to enforce its judgments and orders pursuant to Rule 2:9-1(a).

With respect to defendant's second point, we note that her request to replace the parent coordinator was procedurally defective because she did not file a cross-motion. Nevertheless, the trial court considered the request on its merits and, in our view, properly denied defendant's request to replace the parent coordinator.

The imposition of a reasonable monetary sanction is a "proper tool to compel compliance with a court order." Franklin Twp. Bd. of Educ. v. Quakertown Educ. Ass'n, 274 N.J. Super. 47, 55 (App. Div. 1994). In this case, the motion judge was thoroughly familiar with all of the relevant facts; the sanctions were not excessive; and they were designed to facilitate compliance with the court's orders. Under the circumstances, the sanctions were appropriate, and we find no legal error or abuse of discretion by the court.

Affirmed.

20110307

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