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Katherine Milne v. Robert Goldenberg

September 12, 2012

KATHERINE MILNE, PLAINTIFF-APPELLANT,
v.
ROBERT GOLDENBERG, DEFENDANT-RESPONDENT.
KATHERINE MILNE, PLAINTIFF-RESPONDENT,
v.
ROBERT GOLDENBERG, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-2027-06.

The opinion of the court was delivered by: Lihotz, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued May 23, 2012

Before Judges Lihotz, Waugh and St. John.

The opinion of the court was delivered by LIHOTZ, J.A.D.

The parties appeal from four post-judgment orders in this highly contentious and litigious matrimonial matter. Plaintiff Katherine Milne challenges provisions set forth in Family Part orders dated March 10, 2011, March 23, 2011, and September 30, 2011, the latest of which was entered following our limited remand. Defendant Robert Goldenberg appeals from an April 29, 2011 order, which reallocated the parties' obligations to satisfy the guardian ad litem (GAL) expense. We ordered all matters consolidated on appeal and address them in a single opinion. Following our review, we affirm each of the challenged orders, except for a provision in the March 23, 2011 order appointing a parenting coordinator.

I.

The following facts are taken from the record of the trial court proceedings resulting in the orders under review. In addition to general background information regarding the parties' matrimonial litigation, we limit our recital of the facts to the specific provisions of the many orders, as necessary to provide context to the issues presented on appeal.

A.

Following trial in 2007, a dual final judgment of divorce (JOD) dissolved the parties' nineteen-year marriage. The divorce judge*fn1 found the pendente lite shared custodial arrangement for the parties' two special needs children was "not working[.]" The parties had agreed the children would remain in the former marital home and each party, on an every other alternating week basis, would occupy the home and care for the children. The divorce judge terminated this process, finding "[b]oth parents [were] unable to reach a consensus on parenting styles and other child related matters" and had "not been able to put aside the anger and hostility they feel toward each other and make decisions in the best interest of [the children]." The divorce judge adopted the parenting plan proposed by plaintiff, which designated her as the parent of primary residence (PPR), defendant as the parent of alternate residence (PAR), and set defendant's parenting time as 117 overnights and 52 midweek visits each year. The JOD also continued the pre-trial appointment of Dr. Amie B. Wolf-Mehlman as the parties' Parenting Coordinator (PC). Dr. Wolf-Mehlman, in her role as PC, was "to assist the parties in changing or modifying [the] parenting plan or resolve any [parenting time] disputes that may arise[.]"

Plaintiff and defendant appealed from provisions of the JOD. Plaintiff challenged various financial provisions and defendant challenged the appointment of plaintiff as the PPR. Milne v. Goldenberg, No. A-2822-07 (App. Div. Oct. 15, 2009) (slip op. at 2). On October 15, 2009, in an unpublished opinion, we affirmed. Id. at 15.

While the appeal was pending, plaintiff moved for modification of the parenting time provisions. In orders dated March 9, 2009, and April 21, 2009, a different Family Part judge (the motion judge) directed the parties to "resume seeing a parenting coordinator[.]" However, plaintiff had terminated Wolf-Mehlman's services in November 2007, prior to the entry of divorce, because she "disagreed with her recommendations" and felt "[d]efendant was abusing the [parent coordination] process." Defendant moved to enforce the JOD regarding cooperation with a PC. This request was denied.

Plaintiff next moved to appoint a custody expert to evaluate the children, which was met by defendant's cross-motion to enforce litigant's rights regarding parenting time and requiring use of the PC. The motion judge denied plaintiff's request and vacated the prior orders requiring use of a PC. The motion judge appointed Linda Schofel as the children's GAL, explaining:

[I]t's clear to me that this case requires more than a parent coordinator. . . .

So, what I am doing is I am appointing a [GAL] that's going to represent the [children's] interests . . . and I'm appointing Linda Schofel . . . who is an attorney and also has . . . a strong background in social sciences, social services. I forget if she has her MSW . . . . And I am going to appoint her to do an evaluation, meet with the [children], meet with you and I am going to follow her recommendations. I am concerned that the two of you can't conduct yourselves as responsible parents and that's why I'm seeking the input of a [GAL]. And understand that if she tells me that it might be in the [children's] interests that neither of you have any parenting time with them, then I will do that because I am here to protect the interest of the children.

The motion judge ordered the parties to "fully cooperate with . . . Schofel's requests" and equally pay her $5000 retainer, within ten days. Any additional fees due Schofel were to be split equally and paid "in a timely manner."

As Schofel performed her assessment, several motions were filed by the parties regarding various parenting issues, which do not impact our review. However, the motion judge granted defendant's application requiring plaintiff to pay her share of the outstanding balance of Schofel's fees, totaling $5,232.12.

Again, plaintiff was ordered to satisfy all future payments "in a timely fashion[.]"

Prior to preparing a formal written report to the court, the parties were ordered to meet with Schofel "to discuss her preliminary thoughts and recommendations as to how to best help [the children.]" The motion judge also appointed Ellen Marshall, an attorney, as the new PC, and required her fees to be paid equally.

During a conference that included the parties and their counsel, Schofel discussed her findings and recommendations. Following that five-hour meeting, Schofel believed the issues "had now been settled[,]" and agreed to draft a consent order memorializing the agreement. Correspondence in respect of the alleged terms of settlement was exchanged. However, plaintiff rejected all recommendations.

B.

The March 10, 2011 order emanated from defendant's November 5, 2010 motion seeking enforcement of litigant's rights. He included twenty-six requests, many of which centered around plaintiff's non-payment of previously ordered financial obligations and the remainder alleged changed circumstances necessitated modification of alimony and child support. Before the motion was heard, defendant also filed a separate emergent motion seeking sole custody of the children, implementation of Schofel's parenting time recommendations, enforcement of prior orders to pay the GAL and PC's fees, and attorney's fees.

Plaintiff filed her own motion seeking the motion judge's recusal. She also sought Marshall's removal and Wolf-Mehlman's return as PC. Finally, plaintiff requested Schofel's termination as GAL with a refund of all fees that had been paid to date. Plaintiff separately responded to defendant's motions, opposing his requests, particularly the motion for sole custody, and filed a cross-motion listing her own application for enforcement of provisions of the JOD and payment of defendant's share of unreimbursed medical expenses.

The motion judge denied defendant's emergent application for change in custody, recused herself, and reassigned all remaining issues to a new Family Part judge (the trial judge). Prior to the next motion hearing, plaintiff supplemented her submissions with another motion for enforcement of litigant's rights, seeking to compel defendant's payment of alimony and attorney's fees.

On March 7 and 8, 2011, the trial judge considered all of the issues presented by the respective motions. Both Schofel and Marshall appeared along with the parties and their counsel.

Plaintiff asserted Schofel must be removed and she must refund the fees paid because the court lacked jurisdiction to appoint a GAL when "the case was pending on appeal[.]" The trial judge rejected this argument and found "no basis to remove" the GAL. He ordered Schofel's appointment nunc pro tunc, effective May 29, 2009, and ordered plaintiff to pay Schofel's outstanding bills within ten days.

The trial judge also found plaintiff violated past orders to enforce provisions of the JOD. The orders required plaintiff to satisfy certain federal income tax liability and the accruing penalties assessed for late filing and payment. Notwithstanding that the obligations were clearly imposed by post-judgment orders mandating plaintiff's payment and imposed daily sanctions, she had yet to satisfy the debt. The trial judge recognized plaintiff's unemployment as precluding payment of the previously imposed sanctions, so he ordered plaintiff to perform 120 hours of community service, supervised by the Essex County Probation Department.

The trial judge allowed additional discovery and scheduled a hearing for March 21, 2011, "concerning the [GAL]'s recommendations[.]" The order stated "[t]he issues raised in [d]efendant's . . . [o]rder to [s]how [c]ause relating to custody of the minor children, the [c]court's adoption of the recommendations of the [GAL], and the mental and physical health issues of the minor children shall be addressed at the hearing[.]"

The trial judge also rejected plaintiff's application to remove Marshall, based on plaintiff's assertion Marshall failed to qualify as a PC under the Parenting Coordination Pilot Program Guidelines as adopted by the Supreme Court. The trial judge reasoned the pilot program was not implemented in Essex County so the Guidelines regarding the qualifications for PCs were "not relevant" to the parties' matter. Accordingly, Marshall was appointed nunc pro tunc effective June 21, 2010, and plaintiff was ordered to sign Marshall's retainer agreement, pay her half of her retainer, and cooperate with parent coordination services. The trial judge directed the role of the PC was "to resolve certain parenting issues between the parties. The [PC] is to assist the parties in changing or modifying the [p]laintiff's parenting plan, to resolve any disputes that may arise under this plan, and to perform as otherwise [o]rdered by this [c]court."

C.

Guided by Rule 5:8B, the trial judge held a two-day hearing concerning the GAL's recommendations. The record suggests although correspondence between Schofel and the parties' counsel was exchanged, a formal written GAL report was never prepared. The trial judge noted, "the [GAL] provide[d] her services to the [c]court on behalf of the children . . . [and] act[ed] as an independent fact finder, investigator, and evaluator as to what furthers the best interests of the children." ...


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