G.H. v. M.M.

1

G.H., Plaintiff-Respondent/ Cross-Appellant, v. M.M., Defendant-Appellant/ Cross-Respondent.

No. A-0499-21

Superior Court of New Jersey, Appellate Division

April 18, 2023

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 22, 2022

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No FM-07-1495-15.

Angelo Sarno argued the cause for appellant/cross-respondent (Snyder Sarno D'Aniello Maceri and Da Costa LLC, attorneys Angelo Sarno and Scott D. Danaher, of counsel and on the briefs).

Carl J. Soranno argued the cause for respondent/cross-appellant (Brach Eichler LLC, attorneys; Carl J. Soranno, of counsel and on the briefs).

Before Judges Gilson, Rose and Gummer.

PER CURIAM

In this post-judgment matrimonial appeal, defendant M.M. appeals and plaintiff G.H. cross-appeals from certain provisions of Family Part orders issued on June 11, and September 30 2021.^[1] The parties disagree about the scope of the judge's authority to decide the issues raised in their motions and crossmotions. Based on the clear language of their marital settlement agreement (MSA), we affirm the judge's order granting defendant's motion for the appointment of a new parenting coordinator. We also affirm the provisions of the orders granting the interim applications concerning certain critical issues regarding the parties' children's medical treatment, health, and well-being. To the extent the judge adjudicated non-emergent issues, we reverse those provisions of the orders.

I.

The parties married in 2000 and had three children: Sarah, born in 2007; Leigh, born in 2010; and Elise, born in 2012. They divorced by way of a September 19, 2018 dual judgment, which incorporated the parties' September 10, 2018 MSA. The parties amended the MSA on May 17, 2019 providing a parenting-time schedule and a procedure for custodial exchanges.

As reflected in the MSA, the parties agreed to share joint legal and physical custody of the children "with each of them having an equal amount of parenting time." Pursuant to paragraph four of the MSA, if the parties were "unable to agree upon a decision that [was] in the best interest of the children," they would engage Phyllis Klein, Esq. "for parenting coordination. "The parties agreed Ms. Klein's written recommendations would "be binding, subject to either party's right to file an application with the [c]ourt to vacate said recommendations ...." In addition to that general provision, the parties specifically agreed in paragraph fifteen of the MSA to "attend mediation with Ms. Klein to agree upon an equal parenting[-]time schedule"; "submit the issue to binding arbitration with Ms. Klein" if they were unable to reach agreement through mediation; and "address a parenting schedule, including any and all other ancillary issues relating to parenting (e.g. pick ups and drop offs), and resolve all such issues with Ms. Klein. "^[2] In paragraph sixteen, the parties agreed that "in the event that there is any dispute regarding the children, said dispute shall be submitted to Ms. Klein as the Parent Coordinator."

In paragraph eighty-two of the MSA, the parties agreed to the following:

Any and all disputes arising out of or under [the MSA], or a breach thereof, shall be resolved through arbitration in accordance with N.J.S.A. 2A:23B-l, et seq. administered by Ms. Klein, or another agreed upon arbitrator in the event Ms. Klein is unable to serve in this role at such time.

On August 7, 2019, defendant sent an email declaring he was terminating Klein's services. In response, Klein advised he could not unilaterally fire her, but she unilaterally could withdraw and was withdrawing, having "withstood more than [her] share of abuse."

On September 1, 2020, defendant filed an order to show cause. He withdrew that application pursuant to a September 17, 2020 consent order in which the parties agreed to a particular parenting-time schedule for that month. The parties also agreed to attend ten co-parenting sessions by March 31, 2021, and that if those sessions were not successful, either party could move for the appointment of a new parenting coordinator.

On March 30, 2021, defendant moved for an order restraining plaintiff from picking up prescription medication for their children, compelling her to provide him with any prescriptions in her possession and to submit to an antidepressant drug screen, and appointing a replacement parenting coordinator. Defendant accused plaintiff of using antidepressant medication that had been prescribed for their daughter Sarah. A week earlier, he had filed "an emergent application" seeking the same relief, but the court denied it as "non-emergent."

Plaintiff opposed defendant's motion and cross-moved, seeking seventeen prayers for relief. Among other things, plaintiff asked the court to enforce the September 17, 2020 consent order by requiring defendant to attend the remaining co-parenting sessions, modify the MSA to give her the final authority to make medical decisions regarding the children, require defendant to attend anger management classes, and prohibit him from keeping any firearms in his house or exposing their children to his firearms. She asserted defendant had made a false referral to the Division of Child Protection and Permanency about her and accused him of "obstructing and interfering with the timeliness and continuity of [their] children's medical, dental, and orthodontia care." She also asserted Sarah had been identified as being "suicidal" and in need of a new therapist and Leigh had been recommended to undergo a psychiatric evaluation and supplemental treatment.

In a reply certification, defendant opposed plaintiff's cross-motion, arguing that none of the issues she had raised in her cross-motion should have been before the court given "the alternative dispute resolution processes" set forth in the MSA. He conceded "the same could have been said about the issues in [his] . . . [m]otion except that [p]laintiff refuses to comply with the alternative dispute resolution processes."

At argument, defense counsel advised the motion judge that the only relief defendant still sought was the appointment of a replacement parenting coordinator. Rejecting plaintiff's argument that, pursuant to the September 17, 2020 consent order, the parties had to complete the co-parenting sessions before a new parenting coordinator could be appointed, the judge granted the motion, finding:

But they also agreed to do it by March 31st and they didn't. The issue here, if you read these papers, . . . is . . . the effect on these children. I know what they agreed to and clearly these parties can't resolve much. It is inflammatory. It's not in the best interest of the children to have these things linger and continue to fester and have the children have the issues. That's whether they agreed they were going to finish these ten [sessions] or not, I don't think it's in the children's best interest to continue along this path three months after they were supposed to have this done. They didn't finish it. I think that the parenting coordinator in this case is absolutely necessary. ....

They should continue [the co-parenting classes]. They agreed to. But I am not going to delay appointing a parenting coordinator because they haven't finished a couple of classes. They - obviously, these have done nothing so far. If you read these papers, it's clear to me that whatever sessions they had aren't working. Completing a few more, I don't know that that's going to work either.

So it is absolutely necessary in this case for these children to get some relief. These parents have to learn how to co-parent. The classes are great to help them. But it's obviously not helping them right now.

So I am going to appoint a parenting coordinator in this case. I would rather that the two of you decide who that may be. Do you think you can?

After some discussion about whether the parties could agree on a parenting coordinator, the judge directed the parties to advise her within ten days if they were not able to reach agreement and stated she then would appoint someone. Plaintiff's counsel expressed a preference for "someone with a mental health background, versus an attorney." With defendant's consent, the judge granted that request. The judge memorialized that directive in the June 11, 2021 order.

Despite the judge's ruling, plaintiff's counsel asserted the parties' children were "in crisis" and that arbitrators and parenting coordinators are not "equipped" to deal with all issues regarding the children. For example, plaintiff's counsel asserted whether a child should have a "psych" evaluation is something the court should decide. The judge agreed. Plaintiff's counsel also asserted that issues regarding the children's therapy, defendant's possession of firearms, and defendant's obligation to contribute to the children's medical expenses should be decided by the court and that "medical decision making is not appropriate for a parent coordinator." Plaintiff's counsel continued to argue for the other relief requested in the cross-motion, including requiring defendant to undergo anger-management therapy and modifying his child-support obligation.

The judge acknowledged the parties had agreed in the MSA to arbitrate their disputes.

I recognize that there was a provision in the parties' [MSA] that says that they agreed that any disputes arising out of the agreement or a breach, shall be resolved through arbitration. I agree with that. That [is] what the parties agreed to. That [is] what should control.

They made an agreement . . . [they] believed that that was in the best interest of both of them and their children.

The judge,...