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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 role of reunification therapist or expert.

The judge suggested father take a different approach in his sessions with Pellegrino. He advised him as follows: "Go in there"; "Work at it"; and "show me that you can do it." On that basis, the judge entered an order requiring the child to continue with Pellegrino, father to make himself available for counseling with Pellegrino, and Pellegrino to produce a report "once [d]aughter . . . is emotional[y] ready to resume parenting time with" father. The order further states that father "shall be permitted to file a motion to reinstate parenting time once Dr. Pellegrino reports that [the child] is ready to resume parenting time with" him. (emphasis added).

At oral argument on this appeal, we were advised that father had seen Pellegrino and recently had dinner with his daughter.


On appeal father urges us to reverse the provisions of the December 3, 2010 order on parenting time on several grounds: failure to conduct a plenary hearing; absence of competent claims supporting the order; the conflicting roles assigned to Pellegrino, which invited violation of the family therapist privilege; and improper restriction of father's right of access to the courts.

Mother contends that these issues are not properly presented on this appeal, but her arguments are not meritorious. Contrary to mother's claim, this is not an untimely appeal from the order of June 28, 2010, which suspended visitation. The December 3, 2010 order is qualitatively different than the June 28 order. In effect, the June 28 order temporarily maintains the de facto status quo for a three-week period by denying without prejudice father's request to enforce the parenting time order in place. It cannot be understood as an order modifying the parenting time arrangement. In contrast, the December 3 order effectively terminates father's parenting time and gives a therapist the authority to determine when the father may apply to the court for reinstatement. Thus, this appeal is properly before us.

On the ground that father did not request a plenary hearing, mother also urges us to reject father's claim of error based on the judge's failure to conduct one. Courts, not the parties, have the obligation to decide whether a plenary hearing on visitation is required to resolve a matter that implicates the best interests of the child. See Faucett v. Vasquez, 411 N.J. Super. 108, 127 (App. Div. 2009), certif. denied, 203 N.J. 435 (2010); P.T. v. M.S., 325 N.J. Super. 193, 214-15 (App. Div. 1999). A parent's failure to request a hearing does not preclude an appeal from an order modifying parenting time on disputed facts and an inadequate record. P.T., supra, 325 N.J. Super. at 214-15.


We turn to the merits. This case demonstrates the need to reiterate fundamental principles articulated by the late Judge Pressler nearly three decades ago in Fehnel v. Fehnel, 186 N.J. Super. 209, 215 (App. Div. 1982):

There are obviously few judicial tasks which involve the application of greater sensitivity, delicacy and discretion than the adjudication of child custody disputes, which result in greater impact on the lives of those affected by the adjudication, and which require a higher degree of attention to the properly considered views of professionals in other disciplines. . . .

There have been frequent doubts expressed regarding the viability of the traditional adversarial process as an appropriate dispute resolution technique in child custody cases. But as long as we continue to resort to that process, it must be permitted to function consistently with its highest potentials.

"In implementing the 'best-interest-of-the-child' standard, courts rely heavily on the expertise of psychologists and other mental health professionals." Kinsella v. Kinsella, 150 N.J. 276, 318 (1997). But the weighty responsibility of deciding on a parenting arrangement that is in the child's best interests is still assigned to the judge.

There is a difference between a court turning to professionals whose expertise will inform its opinion and a judge shifting the weighty responsibility to make a decision in the best interests of a child to an expert. We have stressed that distinction in the past. In P.T. v. M.S., a case involving allegations of child sexual abuse by a parent and a consent order waiving a hearing and "ced[ing] the court's authority to an appointed expert psychologist," we stated the rule simply and clearly. 325 N.J. Super. at 198. "The court must not abdicate its decision-making role to an expert." Id. at 216.

Simply because the order of December 3, 2010 conditions father's right to seek reinstatement of his parenting time on the opinion of the child's therapist, that provision of the order must be reversed and vacated. It totally cedes judicial responsibility to a professional, and it cannot be affirmed in any circumstance.


The obvious abdication of judicial responsibility is not the only error that requires correction. Statutes, judicial decisions and Court Rules governing and facilitating the difficult task of deciding parenting disputes in the best interests of the child were not followed. Accordingly, we must remand for a resolution in conformity with the governing procedural and substantive law. Recognizing that the December 3, 2010 order is the subject of this appeal, we discuss the June 28 order as well to provide guidance for the judge who will address the matter on remand.

The Legislature has declared it is in the public policy "to assure minor children of frequent and continuing contact with both parents after [dissolution of a marriage] and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy." N.J.S.A. 9:2-4. "[A] parent's rights to the care and companionship of his or her child are so fundamental as to be guaranteed protection" under the Constitution, and our courts "hold those rights in high esteem." Wilke v. Culp, 196 N.J. Super. 487, 496 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985); V.C. v. M.J.B., 163 N.J. 200, 217-18 (citing Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1971)), cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000).

"It is well settled that the law favors visitation and protects against the thwarting of effective visitation rights."

Ibid. They are terminated only on a showing that the parent-child relationship is causing "emotional or physical harm to the child" or parental unfitness. Ibid.

The best interests of the child is the primary consideration in a case involving custody or parenting time.

V.C., supra, 163 N.J. at 227-28; Kinsella, supra, 150 N.J. at 317. The best-interest standard focuses on the "safety, happiness, physical, mental and moral welfare of the child." Fantony v. Fantony, 21 N.J. 525, 536 (1956); see N.J.S.A. 9:2-4c (setting forth a non-exhaustive list of relevant factors). Once an arrangement is in place, modification is appropriate when there is a change in circumstances warranting it, i.e., a development that affects the welfare of the child. Beck v. Beck, 86 N.J. 480, 496 n.8 (1981); Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div.), certif. denied, 28 N.J. 147 (1958).

Where a post-judgment motion raises a question about the child's welfare and the pertinent facts are disputed "or where a plenary hearing would assist the court in deciding on a visitation plan, such a hearing should be held." P.T., supra, 325 N.J. Super. at 214; Fusco v. Fusco, 186 N.J. Super. 321, 327-28 (App. Div. 1982). Without question, a child's loss of regular contact with a parent during the formative years of life is a matter of importance to that child's welfare. Fusco, supra, 186 N.J. Super. at 327.

Here, where the loss of contact followed nearly seven years of regular and frequent visitation post-divorce, there was reason for grave concern about the best interests of this child who was not yet a teenager. There was plainly a significant change in the child's life with obvious immediate and potential long-term ramifications for the parent-child relationship. In contrast, the appropriate solution was not obvious at all because the precipitating problem was not clear. One parent's remarriage necessarily requires some adjustment by the child, both parents and the stepparent; depending on the situation, cessation of the child's contact with one parent may facilitate or delay and complicate the process. Here, albeit by unsworn letter and report rather than proper affidavit, R. 1:6-6, the child's therapist had indicated that the parenting arrangement was compromising the child's welfare.

In these circumstances, the judges should have treated the case as one that a court would not be able to resolve without investigation, the assistance of experts and a plenary hearing. When there is a substantiated allegation that a child's welfare is compromised, investigation is warranted. See Dorfman v. Dorfman, 315 N.J. Super. 511, 517-18 (App. Div. 1998) (holding documented problems of the child warranted further investigation).

The Court Rules provide the framework for proceeding to final resolution by a court. Where parenting time is a "genuine and substantial issue," a court should first refer the parties to mediation for a period of no longer than two months. R. 5:8-1. This step in the process recognizes that "parents working together" are in the best position to make a valid decision about what is best for their child. Tahan v. Duguette, 259 N.J. Super. 328, 336 (App. Div. 1992). If mediation fails, steps to ensure the gathering of the information a judge will need to make an informed decision should be undertaken. The parents should be required to propose and submit parenting plans. R. 5:8-5a. Where the issue is enforcement or modification of parenting time, a court obviously has the discretion to streamline the task by directing parenting plans that focus only on the matters in dispute.

The court need not rely on the parents to produce the essential evidence. A judge may order an investigation and may interview the child in camera after giving the parties notice and an opportunity to submit questions. R. 5:8-1; R. 5:8-6 (requiring an explanation if the judge opts to forego an interview).

If an expert opinion would likely be of assistance to the court in resolving a genuine and substantial dispute about parenting, judges may appoint one or more experts. R. 5:3-3. They may be appointed to examine a parent, both parents or the child, or to express an opinion on the custody/parenting-time arrangement that is in the best interests of the child. R. 5:3-3a-b. If experts are utilized, their reports must be disclosed to the court and the parties, and discovery and cross-examination must be permitted. R. 5:3-3f-g; see also R. 5:3-3e (addressing a court-appointed expert's restrictions on communications with the judge). Whether or not the court appoints experts, the parents each have the right to retain them. R. 5:3-3h.

The use of experts and information from professionals who have treated a member of the family requires consideration of not only their professional qualifications, but their ability to serve in the role in which they are placed. Accordingly, a court may not appoint as an expert a person who is providing or has provided therapy to any member of the family. R. 5:3-3a; see also R. 5:3-3b (requiring any expert who performs a parenting/custody evaluation to conduct a "strictly non-partisan" evaluation). Court-appointed experts may consult any professional who has been treating either parent or the child. Kinsella, supra, 150 N.J. at 320.

Courts ordering family therapy pending final resolution of a case, as opposed to a best-interest evaluation, must recognize that receiving a report from the family therapist may implicate the privilege afforded to communications made in the course of family therapy. N.J.S.A. 45:8B-9; N.J.R.E. 510; Kinsella, supra, 150 N.J. at 320-28 (discussing the applicability of the privilege in litigation involving the question of the best interests of a child, and that the appointment of independent experts is preferable).

This clear framework was not followed. By leaving it to the parties to return to court after receipt of the therapist's report, the judge who entered the June 28 order delayed mediation, the ordering of an investigation and the appointment of experts. Indeed, by effectively closing the litigation, the judge deprived the parties of a ready means of compelling compliance with any expert evaluation they might have wished to obtain. The judge who entered the December 3 order repeated and magnified the error by barring father from seeking parenting time until the therapist deemed his daughter ready.

In directing this child's therapist to provide family therapy and report to the court, neither of the judges made findings on the propriety of the child's therapist also serving as the family therapist. Similarly, by requiring the family therapist to provide a report, the judges failed to consider the implications of the applicable privilege. Moreover, in addition to improperly delegating judicial responsibility to the child's therapist, the second order amounts to an appointment of the child's therapist to evaluate parenting, which is in violation of Rule 5:3-3a. Finally, when father requested appointment of a guardian ad litem, which is another avenue open to a judge confronted with an acrimonious custody dispute that is in itself inconsistent with the best interests of the child, R. 5:8B, that relief was denied without discussion.

On remand, these errors must be avoided to bring an end to this dispute. Because the judge who entered the last order has expressed his opinion on the problems and on the father's stance in sessions with the child's therapist, we ask the Assignment Judge to transfer the case to a different judge. Entress v. Entress, 376 N.J. Super. 125, 133 (App. Div. 2005), certif. denied, 201 N.J. 143 (2010).

We briefly address the question of parenting time pending further proceedings. Absent exigent circumstances implicating a child's emotional or physical health, modification of a parenting arrangement should await plenary hearing. Faucett, supra, 411 N.J. Super. at 119. "[C]onclusory allegations with little evidentiary support" are an inadequate basis for an order modifying a parenting arrangement pending hearing. Peregoy v. Peregoy, 358 N.J. Super. 179, 204 (App. Div. 2003). But when a concern about a child's health or welfare is substantiated, a judge has discretion to enter a temporary order pending the plenary hearing. Marcrum v. Marcrum, 181 N.J. Super. 361, 363-65 (App. Div. 1981), appeal dismissed, 93 N.J. 232 (1982). Such temporary decisions about parenting time pending a hearing are "necessarily discretionary" and not disturbed by this court "as long as there is a rational basis in the record . . . ." Peregoy, supra, 358 N.J. Super. at 203.

On remand, father's pending application concerning parenting time pending final hearing should be immediately and addressed under the foregoing standard and in light of existing circumstances.

We stress that we are addressing a case in which there was a substantial and genuine dispute about a dramatic alteration of parenting time implicating the child's best interests. This opinion should not be understood to address petty parental debates about minor issues, such as the precise hour parenting should commence, which generally involve the parents' competing self-interest and not the child's best interests. In those situations, a prompt resolution is generally more important to the child's best interests and a court can address such matters without investigation or expert opinion based on the reasonableness of the parents' respective positions.


We turn to consider father's objections to the order obligating him to contribute to extracurricular activities and to pay tuition to two schools for one school year. These are the pertinent facts.

At the time of the judgment, father was earning $115,000 per year. The court imputed earnings of $25,000 and $6000 of unearned income to mother. Mother was awarded term alimony in a weekly amount of $800 for one year and $600 for two years. Father's weekly child support obligation was fixed at $145 per week for one year and $167 for two years. In addition, during the three-year alimony term father's bonus was to be divided - two-thirds to father and one-third to mother.

Before three years passed, child support was modified. Weekly child support was increased to $271 in June 2005 retroactive to September 2004. Father was also directed to pay fifty-seven percent of the child's uninsured medical, dental, prescription and speech therapy costs in excess of $250 and fifty percent of the daycare cost. Pressler & Verniero, Current N.J. Court Rules, R. 5:6A, Appendix IX-A, ¶ 8. At that point, father's annual gross taxable income was $154,336.

By order of August 2006, the weekly child support was increased to $364 and father's responsibility to share expenses was extended to include school costs and camp. The rate of his contribution was increased to eighty-five percent of the expenses. The August 2006 order further directed an exchange of financial information by April 30 each year.

In July 2008, weekly child support was increased to $671. At that time, father's annual gross taxable income was $347,620. Because the family's net income exceeded the maximum covered by the child support guidelines, the $671 includes a $297 weekly enhancement. Pressler, supra, Appendix IX-A, ¶ 20. The judge also increased father's share of uninsured health care costs in excess of $250 to eighty-eight percent.

In that order, the judge assigned mother sole responsibility for the cost of "extracurricular activities, with the aid of [father's] child support obligation, as included in the Guidelines." In his oral decision on the motion, the judge explained that that $671 weekly child support included extracurricular activities and that father did not have "to pay in addition to that with the exception of the private school tuition," to which he would contribute eighty-eight percent.

As noted above, in 2009 mother changed the child's school mid-year. It is not clear whether she received a refund or why the judge concluded that father should pay eighty-eight percent of the double cost.

In the cross-motion mother filed in opposition to father's second motion to enforce parenting time, mother sought reimbursement for various expenses she incurred for the child. The judge awarded the full amount mother requested. On appeal, father challenges only two items included in the total - expenses for extracurricular activities and a double payment of tuition for the 2009-2010 school year.

With respect to extracurricular activities, the judge found the order allocating sole responsibility to mother ambiguous and based on representations of mother's attorney, concluded that father was still required to pay eighty-eight percent of the cost. Most likely because father recognized his obligation to pay tuition, the judge did not address the double tuition for the 2009-2010 school year.

The judge's reading of the July 18, 2008 order is clearly erroneous. Under its terms, father has no obligation to contribute a percentage of the cost for extracurricular activities, and any ambiguity is clarified by the oral decision of the judge who entered that order. Accordingly, on remand the court must exclude any cost for extracurricular activities incurred after the effective date of that order. If mother believes the additional amount included in the child support award, $15,444 annually, is inadequate, then she must file a motion to modify child support on an adequate showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 151-52 (1980).

On remand, father may pursue his claim that he should not be required to pay the cost of his daughter's tuition at two schools for one school year. Conversely, he may well determine that the amount in issue does not warrant litigation given the circumstances of this case and the impact of an additional dispute on his efforts to restore his relationship with his daughter.

Reversed and remanded.

We do not retain jurisdiction.


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