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Josephine Penza v. Robert Penza

February 17, 2012


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

Per curiam.


Argued January 9, 2012

Before Judges Parrillo, Grall and Alvarez.

This appeal and cross-appeal are from a post-judgment order in a divorce case that addresses parenting time and child support. The order suspends defendant father's parenting time and permits him to file a motion to reinstate parenting time when the child's therapist reports the child is "ready." It also requires him to pay $25,831.34 toward the child's medical, dental, educational and extracurricular expenses, and it denies mother's request for counsel fees.

On father's appeal, we reverse and remand because: judicial responsibility was abdicated; parenting time was suspended without a plenary hearing or adequate evidence; a prior order on responsibility for extracurricular activities was misinterpreted; and payment of tuition to two schools for the same year was awarded. We do not reach mother's cross-appeal, because the award of counsel fees must abide the remand.



These facts are relevant to the parenting time dispute. Plaintiff and defendant were married in 1995, and their only child, a daughter, was born in 1999. The parties divorced in 2003. Pursuant to the judgment, mother was the "primary residential parent" and was given "absolute authority" for day- to-day decisions such as "extracurricular activities," subject only to prior discussion with father as a condition of his obligation to make a "significant monetary contribution" to activities like "summer camp [and] school trips."

Under the terms of the judgment, father had parenting time on alternate Wednesday evenings and alternate weekends, commencing on Friday evening and ending on Sunday evening. Holidays were allocated between father and mother, and each parent had two non-consecutive weeks of vacation time in the summer. In addition, family counseling was directed.

Six years after the divorce, father's parenting time was increased. In June 2009, his summer vacation with his daughter was extended to three weeks and he was given additional time on holidays. "Curbside" pick-up was ordered, and father was restrained from giving the child over-the-counter medication without mother's express permission.

In 2009, mother withdrew daughter from the parochial school she was attending and enrolled her in another. Father objected on the ground that he was not consulted, but the court entered an order allowing daughter to attend the new parochial school and requiring the parties to seek relief in court if they could not agree on a future change in her school. On mother's appeal from that order, we affirmed. Penza v. Penza, No. A-1819-09 (App. Div. Dec. 16, 2010).

On June 1, 2010, father moved for an order enforcing his parenting time and appointment of a guardian ad litem for his daughter. When that motion was filed, father had remarried and his new wife and teenage stepdaughter had moved into his home. His daughter, who was about four years old when her parents divorced, was about eleven. In support of his application to enforce parenting time, father asserted that he had not seen daughter for three months. He explained that he waited to seek relief in court because he had hoped to resolve the matter with his former wife. Although father acknowledged that daughter's relationship with stepmother and stepsister was not ideal and that he had changed her bedroom to another in order to accommodate his stepdaughter, in his view, the child's resistance to seeing him reflected her mother's attitude.

Mother opposed the motion. She attributed daughter's refusal to see her father to his behavior and that of his new wife and stepdaughter. Since 2005, daughter had been "periodically" seeing a "therapist," Donna M. Pellegrino, Ed.D., R.N., LMFT. On June 22, 2010, a date after father moved to enforce parenting time, Pellegrino wrote a letter to mother's attorney stating daughter was having panic attacks, refusing to see father and viewing his efforts to see her as "scary." Pellegrino recommended suspension of visitation until the child addressed her issues with visitation, which were, in Pellegrino's view, compromising the child's health. That letter was submitted to the trial court with mother's opposition to father's motion.

On June 28, 2010, the judge entered an order denying father's motion "without prejudice, pending the recommendation of the therapist"; directing Pellegrino to continue as the therapist and "immediately begin the reunification process" with a therapeutic goal of restoring the relationship; obligating both parents to make themselves available to Pellegrino; and directing Pellegrino to submit a report within three weeks to the court and the parties, after which "either party [would be] free to make an application to the [c]court."

The December 3, 2010 order that is the subject of this appeal was entered on a motion father filed in October. It was heard by a judge who had no prior involvement with this family.

Father detailed his efforts to comply with the June 28 order. He had met with Pellegrino twice by himself and three times with the child, but Pellegrino had cancelled an appointment scheduled for her to meet with father and mother together. He had not seen the child outside of therapy.

In opposing the reinstatement of parenting time, mother asserted her grievances about father's failure to communicate with her when the child was injured or ill during his parenting time and her daughter's complaints about her new bedroom and his new wife's consumption of alcohol. Mother relied on a November 16, 2010 report that Pellegrino purportedly wrote in response to the June 28, 2010 order, but filed long after the three-week period stated in the order.

In that report, Pellegrino stated her impressions of her individual and joint sessions with father and daughter. She described their reactions to one another and the child's continued resistance to parenting time, and she recommended a continuation of the suspension of father's parenting time. She also repeated what father told her about the nature of his relationship with his child, his perceptions of the source of the problem and what he said about his second wife's consumption of alcohol. In her opinion, the child had an unfavorable view of her father and contact with him was compromising her physical and emotional health.

The judge heard the motion on December 3, 2010. Father appeared pro se, and mother was represented. Although both parents were sworn, no formal testimony was taken. The judge considered Pellegrino's report and relied on her impressions.

He rejected father's assertion of bias on Pellegrino's part and his contention that Pellegrino, the child's "therapist" was not properly placed in the ...

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