STEFANOS PANTAGIS VS. ATHENA LANZ (FM-02-1540-10, BERGEN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0029-19T2
STEFANOS PANTAGIS,
Plaintiff-Appellant,
v.
ATHENA LANTZ,
Defendant-Respondent.
____________________________
Submitted December 14, 2020 – Decided January 29, 2021
Before Judges Sabatino and Gooden Brown.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-1540-10.
Herbert & Weiss, LLP, attorneys for appellant (Helene
C. Herbert, Helayne M. Weiss and Lori E. Kolin, on the
briefs).
Ziegler, Zemsky & Resnick, attorneys for respondent
(Ashley Vallillo Manzi, of counsel and on the brief).
PER CURIAM
In this post-judgment matrimonial matter, plaintiff/father appeals from
portions of May 2, June 26 and July 17, 2019 Family Part orders pertaining to
enforcement of provisions of a consent order, appointment of a law guardian for
the parties' son, and participation in a family reunification program for alienated
children. For the reasons that follow, we affirm.
Plaintiff and defendant/mother divorced in 2013 after a sixteen-year
marriage that produced two children, a daughter, M.P.,1 born July 1999, and a
son, G.P., born May 2003. The dual judgment of divorce, which was entered
following a lengthy trial with multiple psychological experts, among other
things, awarded the parties joint legal custody of the children, with defendant
designated the parent of primary residence and plaintiff allowed to move from
supervised to unsupervised parenting time. The trial judge noted that while the
custody expert found no parental alienation at the time of the divorce, there were
"several significant indicators of [parental alienation]" evidenced by "the
[c]hildren see[ing] . . . [p]laintiff in a totally negative way and . . . [d]efendant
in a totally positive way." As a result, the divorce judgment incorporated a
defined parenting time plan, and the parties, both physicians, were ordered to
engage in family therapy.
1
We use initials to protect the confidentiality of the children. R. 1:38-3(d)(3).
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2
Both parties appealed the divorce judgment, resulting in an unpublished
decision affirming, in part, and remanding certain financial issues for further
proceedings. See Pantagis v. Lantz-Pantagis, No. A-6016-12 (App. Div. Feb. 4,
2016) (slip op. at 11-12). The decision noted that "the entitlement, if any, to
appellate counsel fees shall be considered in the first instance by the trial court
on remand." Id. at 12. During the remand, after two years of post-judgment
motion practice and extensive mediation, on March 2, 2018, the parties entered
into a consent order containing forty-nine provisions. In addition to the financial
issues that were the subject of the remand, the consent order included an
exhaustive parenting time plan and provisions pertaining to counsel fees and
reconciliation therapy as well as other issues unrelated to this appeal.
The counsel fee provision stated:
. . . Both parties hereby waive any and all rights to
counsel fees associated with their [a]ppeal and [c]ross-
[a]ppeal. Plaintiff made the application for counsel
fees in his [c]ross-[a]ppeal. These waivers are
permanent and irrevocable.
. . . Both parties hereby waive any and all rights to
counsel fees associated with post judgment litigation
currently in existence, including trial court and
[a]ppellate [d]ivision fees through February 28, 2018.
These waivers are permanent and irrevocable.
Regarding reconciliation therapy, the consent order provided:
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. . . The parties agree to utilize Dr. Justin Misurell for
reconciliation therapy with [G.P.]. The parties agree to
cooperate with one another and any professionals,
including Dr. Misurell, to facilitate [G.P.]'s relationship
with [plaintiff]. It is anticipated that Dr. Misurell
wishes to meet with each parent, and each parent agrees
to do so. It is anticipated that Dr. Misurell will he
seeing [G.P.] once per week, and [defendant] shall
facilitate [G.P.]'s attendance at same. The first
appointment is scheduled for Wednesday, February 28,
2018, at 4:30 p.m. The parties agree and consent to Dr.
Misurell speaking with all professionals associated
with [G.P.]'s care[] and education. In the event that
[G.P.] overcomes his issue of getting into a car with
[plaintiff], then the parties agree that when there is a
joint session with [plaintiff] and [G.P.], [plaintiff] shall
pick up at [defendant's] home and bring [G.P.] to the
joint session. [Plaintiff] to drop off at [defendant's]
home.
. . . It is [plaintiff's] position that if [r]econciliation
[t]herapy is unsuccessful as of June 2018, [G.P.] and
[plaintiff] should attend a week long workshop for
families affected by parental alienation, such as Family
Bridges or Overcoming Barriers Family Camp. It is
[defendant's] position that there has been no parental
alienation and no such camp is necessary.
About a year later, on or about March 4, 2019, plaintiff moved to enforce
litigant's rights and to set aside certain provisions of the March 2, 2018 consent
order under Rule 4:50-1. Pertinent to this appeal, plaintiff sought to vacate the
provisions of the consent order "regarding [his] waiver of counsel fees on
appeal, the post judgment legal fees, and mediation costs" due to defendant's
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4
purported "false pretenses and misrepresentations . . . before the mediator, the
[c]ourt[,] and [p]laintiff." Plaintiff also asserted that defendant violated
litigant's rights by failing to comply with the consent order and sought an arrest
warrant for "her non-compliance and obstruction of [his] joint custody and
parenting time."
In support of his motion, among other things, plaintiff claimed defendant
failed to "ensure [G.P. was] brought to reunification therapy with Dr. Misurell."
In his accompanying certification, plaintiff averred that:
Despite [d]efendant's representations to comply and
participate in therapy, I had only six father son
reunification sessions with Dr. Misurell. The therapy
was necessary due to [d]efendant's years of parental
alienation and pathological lies she told our children[]
and the court. In a follow-up session Dr. Misurell
advised me [d]efendant stopped bringing [G.P.] to
therapy . . . I had discussed with Dr. Misurell filing a
motion regarding [d]efendant's [o]bstruction and her
refusal to bring [G.P.] to therapy. However, Dr.
Misurell suggested I wait[,] and I did. Dr. Misurell's
request not to file an application with the [c]ourt to
enforce therapy or parenting time was based on his
concern it would "escalate tensions between [G.P.], his
mother, and his parents and would thus undermine any
chance of the therapeutic process succeeding." . . . .
That is clearly not [d]efendant's intentions as she
continued the litigation and bitter fight at the ultimate
expense of our children not having a relationship with
their father.
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5
According to plaintiff, as a result of defendant's continued recalcitrance,
Dr. Misurell ultimately suspended treatment and notified the parties in an
October 18, 2018 email, stating:
I regret to inform you that in light of [G.P.] and
[defendant's] inconsistent attendance and lack of
participation in therapy I have decided to suspend
treatment and cancel the standing appointment. I have
only seen him twice since June 20, 2018. I fear at this
point continuing with therapy in this way will be
counterproductive. I will be sending you a treatment
summary letter containing my recommendations for the
next steps. I wish you well with the process.
The October 18, 2018 treatment summary letter provided by Dr. Misurell
reported:
[G.P.] and his parents attended [twenty-five] therapy
sessions. Of those sessions, [G.P.] attended [fourteen].
However, only six of those sessions included [G.P.] and
his father together, which was woefully inadequate.
[Plaintiff] attended nine sessions individually and six
sessions with [G.P.].2 Throughout the therapeutic
process [plaintiff] presented as highly invested and
engaged in the therapeutic process[] and was respectful
and accommodating to both this clinician and to [G.P.]
....
Although [defendant] was present at a number of our
sessions and reportedly encouraged [G.P.] to attend, her
2
Dr. Misurell also reported that defendant "attend[ed] two sessions over the
summer . . . without [G.P.] present[,]" during which "she discussed ways in
which the relationship between [G.P.] and his father could be improved and
strategies for encouraging [G.P.] to attend therapy."
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participation in and support of the reunification therapy
process could have been stronger. For one, [defendant]
could have taken steps to ensure that [G.P.] is
complying with his parenting time and therapy
obligations. Secondly, in the event of session
cancellations, [defendant] cou1d have assisted in
rescheduling therapy to another day and time so as not
to lose clinical momentum. Thirdly, [defendant] and
[plaintiff] could have worked together as a team to
improve [G.P.]'s relational problems. While [plaintiff]
was receptive to meeting with [defendant] in the
context of therapy, she was not and would not agree to
working together with [G.P.]'s father. It is likely that
[defendant's] lack of full participation in the process
contributed to the lack of therapeutic success.
As a result of [G.P.]'s and [defendant's] lack of
sufficient support and participation in the reunification
therapy process, a determination was made to suspend
treatment. . . . It is likely that [G.P.] and his father may
need a higher level of intervention in order to address
the relationship difficulties and the alienation dynamics
present in this case. For instance, they may benefit
from Family Bridges. This program is considered the
gold standard in treating parent child alienation related
difficulties and is . . . intensive and immersive. It is
only recommended in cases in which outpatient therapy
has not been successful after repeated attempts.
Defendant opposed plaintiff's motion and cross-moved for enforcement of
other provisions of the consent order unrelated to the issues germane to this
appeal. In her accompanying certification, defendant denied plaintiff's
allegations of non-compliance and fraud and alleged that his "motion [was]
retaliation for the ethics grievance she [had] filed against [his] attorney, who
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[was] also his wife." 3 Defendant explained that when she received Dr. Misurell's
October 18, 2018 letter, she "was surprised" as she "had no idea that he intended
to stop therapy. In fact, [she] immediately responded questioning why he had
unilaterally done so without warning to [her] or [G.P.]."4 However, while she
believed that "[a]t this juncture, it [was] unrealistic to expect [G.P.] to resume
weekly therapy with [p]laintiff and Dr. Misurell simply from a scheduling
standpoint," she asserted she would "not interfere with or object to continuing
with reunification therapy" "[t]o the extent Dr. Misurell has availability that will
coincide with [G.P.]'s availability."
Defendant further asserted that "while [she] remain[ed] committed to
assisting [G.P.] build his relationship with his father," whenever she "tell[s]
[G.P.] he has to go to therapy or he has to see his father, he retaliates against
[her]." Moreover, notwithstanding plaintiff's allegations to the contrary,
according to defendant, "[the children] have dinner with [p]laintiff nearly every
Saturday and Sunday. They refer to their dinners with [p]laintiff as 'Athena
3
Defendant had previously moved in the Appellate Division to disqualify
plaintiff's attorney pursuant to RPC 3.7, which motion was denied by order dated
July 10, 2014.
4
Defendant believed that "Dr. Misurell was always partial to [p]laintiff" as
"[h]is participation in [their] matter commenced as [p]laintiff's expert."
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bashing sessions,' because according to them, [p]laintiff utilizes his time with
the children to disparage [her]." Nonetheless, defendant "continue[d] to
encourage the children to spend time with their father and they continue[d] to
do so." In a reply certification, plaintiff refuted defendant's allegations but
agreed that reunification therapy with Dr. Misurell should be resumed.
During oral argument conducted on April 26, 2019, after establishing that
G.P. was having "biweekly visits with [plaintiff]," the judge rejected plaintiff's
claim that defendant was "not allowing any contact" between plaintiff and G.P.
as "simply not true." Likewise, the judge rejected plaintiff's contention that
defendant was not cooperating with reunification therapy based on the record of
"at least twenty[-]five sessions" with Dr. Misurell. The judge therefore
determined that plaintiff failed to "establish[] . . . complete fraud" or "deception
. . . to the level to vacate" the counsel fee waiver provisions of the consent order
and denied plaintiff's Rule 4:50-1 motion, stating:
In terms of your motion . . . to vacate the consent
order, you indicated that it was completely based on
fraud, that once [defendant] got money, 5 she was
basically going to walk away, and not comply. I
disagree.
5
The judge was referring to plaintiff's claim that once defendant obtained the
benefit of the financial terms in the consent order, specifically the quitclaim
deed for the former marital residence and funds from pre-marital asset accounts,
she stopped cooperating with the other provisions of the consent order.
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The record does not support that [defendant has]
done absolutely nothing to comply and that there was
fraud.
However, the judge found that despite the protracted history of litigation
between the parties, neither "party ha[d] sufficiently protected the interest of"
G.P. As a result, the judge appointed "an attorney" pursuant to Rule 5:8A to
provide G.P. "a voice." Acknowledging the differing roles, the judge stressed
that she was not "appoint[ing] . . . a guardian ad litem [(GAL)]," "but an
attorney" to serve as "an advocate" for G.P. The judge also ordered participation
in the Family Bridges program, as recommended by Dr. Misurell, and continued
therapy with Dr. Misurell in the interim with defendant ensuring G.P.'s
attendance. Plaintiff's counsel advised the judge that the Family Bridges
program required certain orders from the court for participation and offered to
send a proposed order for the court's approval. The judge memorialized her
decision in a May 2, 2019 order, which appointed Michael Spinato, Esq. to
represent G.P. and included a June 6, 2019 return date for a case management
conference (CMC).
On May 22, 2019, plaintiff moved for reconsideration of the May 2, 2019
order. In a supporting certification, plaintiff reiterated the allegations of
defendant's obstruction and lack of cooperation with his parenting time and
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G.P.'s reunification therapy. Plaintiff sought "a finding of parental alienation
for [d]efendant's actions" and a "temporary" award of "custody of [G.P.] while
attending the Family Bridges program." Plaintiff also sought reconsideration of
"the appointment of a law guardian for [G.P.,]" asserting that it would "be futile
because [G.P.] has been indoctrinated to view [him] negatively."
On June 11, 2019, defendant opposed plaintiff's motion and cross-moved
to modify the May 2, 2019 order to reflect that, given G.P.'s "anxiety regarding
the . . . program," G.P. not be compelled to attend the Family Bridges program
until the court has heard from G.P.'s appointed attorney. Defendant also
requested counsel fees and costs associated with filing the application, pointing
out that "[p]laintiff does not incur counsel fees and effectively uses his current
wife to drag [plaintiff] through the legal system." Defendant further asserted
that plaintiff's "allegations of alienation [were] baseless," inasmuch as plaintiff
"sees [their] children weekly, oftentimes having more quality time with them
than [she does] on a weekend."
Additionally, defendant urged the court to appoint a new reunification
therapist to replace Dr. Misurell. In her supporting certification, defendant
characterized Dr. Misurell as "nothing more than [p]laintiff's mouthpiece," who
was not working in "[G.P.]'s best interest, but rather working toward helping
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[p]laintiff sabotage [her]." To support her contention, defendant recounted the
following exchanges between herself and Dr. Misurell concerning scheduling
G.P.'s appointments:
a. On April 29th, Dr. Misurell sent [p]laintiff and me an
email regarding his first available appointment on
Sunday []May 5th[]. . . .
b. On April 29th, I wrote back, explaining that May 5th
was [G.P.]'s birthday, and he was having a birthday
party with his friends that day. . . . However, I said to
Dr. Misurell, . . . . May 8, Wednesday is free after
school. Let me know what time on Wednesday works
for you. . . .
c. On April 30th, Dr. Misurell indicated he did not have
any Wednesday availability and asked if there were any
other days after school available. . . .
d. On April 30th, I wrote back, asking Dr. Misurell how
late his sessions could be scheduled. . . .
e. On April 30th, Dr. Misurell provided us with his
office hours. . . .
f. On May lst, I wrote Wednesdays will continue to be
the preferable day for the long run. However, in the
interest of getting started Thursday at 6[:]30 pm might
work in the interim. . . .
g. On May 1st, Dr. Misurell indicated his only available
appointment was Sunday at noon, but he would keep us
posted on available times and put us on a waitlist for a
standing appointment on Wednesdays. . . .
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h. On May 14th at noon, Dr. Misurell indicated he had
a cancellation for the following day (Wednesday) at
4:30pm. . . .
i. On May 14th, I responded less than two hours later,
explaining that it was my 50th birthday and I had plans
to be in New York City, so I could not make it. . . .
j. On May 14th, Dr. Misurell indicated he had
availability on Thursday at 5:30pm. . . .
k. On May 14th, I responded, indicating that [G.P.] has
his tutor until 5:30pm. I asked again if we could do
Thursday at 6:30pm. . . .
Defendant related another instance when she had to cancel a session
unexpectedly upon learning from G.P. "for the first time" that "he was required
to stay after school to study for [a final exam]." Defendant explained that
although Dr. Misurell "blames her" for the cancellations, "[w]hat he does not
understand is that [G.P.] is a teenager" who "makes his own schedule, and
oftentimes, [she is] the last to learn about his plans." Defendant stated that
notwithstanding the scheduling issues, "since the entry of the [May 2, 2019
o]rder, [G.P.] saw Dr. Misurell on May 21st and June 5th." However,
when [G.P.] came out from the [May 21st] session, he
lashed out at [her], telling [her] it was all [her] fault that
he had to return to Dr. Misurell. He was very upset,
telling [her] that Dr. Misurell told him there was going
to be another lawyer involved in the case. He had a
complete meltdown, and [she] had to be the one to pick
up the pieces.
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On June 26, 2019, following oral argument, the judge denied both
motions, explaining that neither party provided a basis for reconsideration
pursuant to court rule, see R. 4:49-2, or caselaw. See Fusco v. Bd. of Educ. of
Newark, 349 N.J. Super. 455, 462 (App. Div. 2002) (explaining reconsideration
is only available when "either ([1]) the [c]ourt has expressed its decision based
upon a palpably incorrect or irrational basis, or (2) it is obvious that the [c]ourt
either did not consider, or failed to appreciate the significance of probative,
competent evidence." (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch.
Div. 1990))).
As to reconsidering the denial of the Rule 4:50-1 motion, the judge stated
that mere "disagree[ment]" with the decision "does [not] mean that it was
incorrect." The judge then reiterated that plaintiff failed to meet the Rule 4:50-
1 standard because there was no "mistake[,]" "no surprise[,]" "no newly-
discovered evidence," and "no fraud established in any way." Turning to
plaintiff's request to reconsider the appointment of Spinato to serve as G.P.'s law
guardian, the judge reiterated her "concerns as to whether either parent at this
time [was] protecting the interests of their child" and expressed the "need to
have independent counsel to do so." The judge pointed to the "absolutely
contentious" litigation that had been ongoing since 2013 and lamented that "a
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[sixteen]-year-old [was] stuck in the middle of all of this." The judge noted that
the circumstances were exacerbated by the personal relationship between
plaintiff and his attorney, specifically, the fact that they were married to each
other and G.P. had reportedly made "very disparaging" comments about his
stepmother.
To that point, addressing plaintiff's attorney, who was also G.P.'s
stepmother, the judge stated that in a prior certification, plaintiff had averred
that the reason G.P. refused to come to plaintiff's home was because of his
stepmother, about whom G.P. made several disparaging and pejorative remarks.
The judge stated:
[T]hat . . . gives me pause . . . .
[Y]ou are in a very difficult position right now and I
want to make sure that the child's best interests are
protected. And I am not accusing [plaintiff] of
anything. What I'm saying is I need to have someone
advocate for the child.
The judge reiterated the "different functions" of a GAL and a law guardian and
confirmed that G.P. "need[ed] legal representation, because the parents [were]
completely at odds" and the judge was "not convinced that either [parent]" or
"the attorneys" representing them had "the child['s] best interests at heart."
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In a memorializing order dated June 26, 2019, the judge scheduled a CMC
for July 23, 2019, to allow Spinato time to familiarize himself with the matter
in order to advance G.P.'s position. While the judge directed the parties to
resume therapy with Dr. Misurell and attend the Family Bridges program in the
interim, the judge refused to sign the proposed order submitted by plaintiff for
participation in the program because it included a "judicial determination" of
parental alienation that had not been made by the court. The following day, June
27, 2019, plaintiff's attorney submitted a revised proposed order to the court and
counsel for G.P.'s attendance at the Family Bridges program. Among the
twenty-five provisions in the order, the order specified that plaintiff would have
"sole legal and residential custody" of G.P. "while engaged in [the program]"
and would have "authority to make all decisions regarding [G.P.'s] welfare
without consultation." Both defendant and the law guardian submitted written
objections to the proposed order.
As a result, the judge conducted a CMC on July 17, instead of July 23,
2019, to address the proposed order and the objections. At the conference,
plaintiff's counsel advised that she had contacted the Family Bridges program
and was told that they required a specific order to commence the program. Upon
finding that the proposed order contained "legal determinations" that had never
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been made by the court and modified "some of the provisions that have
previously been agreed upon by the parties by awarding [plaintiff] sole legal and
residential custody of the child," the judge again refused to sign the order.
At the conference, in addition to objecting to the proposed order, Spinato,
as G.P.'s law guardian, requested that the judge "terminate th[e] litigation" and
relieve G.P. of all obligations "to attend any therapy for reunification."
According to Spinato,
[G.P.] does not want to reconnect. And one of
the things that he would tell you is my father doesn't
understand me. I asked him specifically about the
alienation . . . . And [G.P.] would tell this [c]ourt
through me that his mother does not alienate him or has
not taken steps to alienate him. That's what he says.
He will tell you . . . that mom doesn't speak ill of
his father, but he feels vice-versa, that his dad speaks
ill of his mother, which drives him . . . further away
from his father.
Spinato explained that when G.P. told him that he recalled the acrimony
between his parents from the time that he "was in diapers," "it reverberated
through [Spinato's] head that this young . . . man was dealing with this for . . .
the last eleven, twelve years." Spinato implored that "[i]t's got to end for him,
for his sake, for his benefit, for his best interest. It has to end." Spinato
acknowledged that there was no motion pending before the court to effectuate
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G.P.'s wishes but expressed his intention to file the appropriate motion on G.P.'s
behalf.
The judge expressed sympathy for G.P.'s position, but agreed that "the
litigation ha[d] to continue" as "there [was] no motion pending before th[e c]ourt
indicating otherwise." After confirming with both parties that reunification
therapy with Dr. Misurell "ha[d] been going well," the judge ordered the
continuation of reunification therapy with Dr. Misurell and noted that "as long
as there [was] continued compliance, there [was] no need for [G.P.] to attend
the Family Bridges program." Plaintiff's counsel therefore agreed to withdraw
the request for attendance at the Family Bridges program given that the parties
were in compliance with reunification therapy. The judge entered a
corresponding order dated July 17, 2019, and this appeal followed.
On appeal, plaintiff 6 raises the following contentions for our
consideration: 7
I: THE TRIAL COURT ABUSED ITS DISCRETION,
MADE FINDINGS INCONSISTENT WITH OR
6
Defendant has not cross-appealed any of the judge's decisions.
7
In his reply brief, plaintiff raises a new argument requesting that we retain
"original jurisdiction relating to the application of attorney fees." We decline to
address the argument, as it is improper for a party to use a reply brief to raise an
issue for the first time. Goldsmith v. Camden Cnty Surrogate's Office, 408 N.J.
Super. 376, 388 (App. Div. 2009).
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UNSUPPORTED BY COMPETENT EVIDENCE,
AND FAILED TO CONSIDER THE CONTROLLING
LEGAL PRINCIPLES IN FAILING TO FIND
DEFENDANT IN VIOLATION OF LITIGANT'S
RIGHTS.
II: THE JUDGE ERRED IN DENYING THE
LIMITED RELIEF REQUESTED TO SET ASIDE
SPECIFIC PROVISIONS OF THE CONSENT
ORDER WHICH WOULD PERMIT PLAINTIFF THE
OPPORTUNITY TO MAKE AN APPLICATION FOR
COUNSEL FEES IN ACCORDANCE WITH THE
PRIOR REMAND ORDER.
III. THE JUDGE ERRED IN APPOINTING A LAW
GUARDIAN FOR THE CHILD AND
DISREGARDED THE DISTINCTION BETWEEN
THE APPOINTMENT OF AN ATTORNEY
PURSUANT TO [RULE] 5:8A VERSUS [RULE]
5:8B.
Our review of orders entered by Family Part judges is generally
deferential. Landers v. Landers, 444 N.J. Super. 315, 319 (App. Div. 2016)
(citing Gnall v. Gnall, 222 N.J. 414, 428 (2015)). "The general rule is that
findings by the trial court are binding on appeal when supported by adequate,
substantial, credible evidence" in the record. Cesare v. Cesare, 154 N.J. 394,
411-12 (1998). We owe substantial deference to the Family Part's findings of
facts "[b]ecause of the family courts' special jurisdiction and expertise in family
matters." Id. at 413. Thus, while we owe no special deference to the trial judge's
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legal conclusions, Manalapan Realty, L.P., v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995), we will
"not disturb the factual findings and legal conclusions
of the trial judge unless . . . convinced that they are so
manifestly unsupported by or inconsistent with the
competent, relevant and reasonably credible evidence
as to offend the interests of justice" or when we
determine the court has palpably abused its discretion.
[Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div.
2010) (alteration in original) (quoting Cesare, 154 N.J.
at 412).]
We also review a trial court's decision on a motion for reconsideration
under an abuse of discretion standard. Cummings v. Bahr, 295 N.J. Super. 374,
389 (App. Div. 1996). Accordingly, "a trial court's reconsideration decision will
be left undisturbed unless it represents a clear abuse of discretion." Pitney
Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App.
Div. 2015) (citing Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283
(1994)). A court abuses its discretion "when a decision is 'made without a
rational explanation, inexplicably departed from established policies, or rested
on an impermissible basis.'" Ibid. (quoting Flagg v. Essex Cnty. Prosecutor, 171
N.J. 561, 571 (2002)).
Likewise,
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[a] motion under Rule 4:50-1 is addressed to the sound
discretion of the trial court, which should be guided by
equitable principles in determining whether relief
should be granted or denied. The decision granting or
denying an application to open a judgment will be left
undisturbed unless it represents a clear abuse of
discretion.
[Little, 135 N.J. at 283 (internal citations omitted).]
"Rule 4:50-1 provides for relief from a judgment in six enumerated
circumstances," In re Estate of Schifftner, 385 N.J. Super. 37, 41 (App. Div.
2006), and "does not distinguish between consent judgments and those issued
after trial." DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 261 (2009). The Rule
provides that
the court may relieve a party . . . from a final judgment
or order for the following reasons: (a) mistake,
inadvertence, surprise, or excusable neglect; (b) newly
discovered evidence which would probably alter the
judgment or order and which by due diligence could not
have been discovered in time to move for a new trial
under [Rule] 4:49; (c) fraud . . . , misrepresentation, or
other misconduct of an adverse party; (d) the judgment
or order is void; (e) the judgment or order has been
satisfied, released or discharged, or a prior judgment or
order upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the
judgment or order should have prospective application;
or (f) any other reason justifying relief from the
operation of the judgment or order.
[R. 4:50-1.]
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Importantly, Rule 4:50-1 does not provide "an opportunity for parties to a
consent judgment to change their minds; nor is it a pathway to reopen litigation
because a party either views his settlement as less advantageous than it had
previously appeared, or rethinks the effectiveness of his original legal strategy."
DEG, LLC, 198 N.J. at 261. "Rather, the rule is a carefully crafted vehicle
intended to underscore the need for repose while achieving a just result." Ibid.Thus, "[o]nly the existence of one of [the six triggering events] will allow a
party to challenge the substance of the judgment," id. at 261-62, and "[r]elief
[under the rule] is granted sparingly." F.B. v. A.L.G., 176 N.J. 201, 207 (2003).
Guided by these deferential principles and our thorough review of the
record, we discern no error in the determinations made by the judge to warrant
our intervention and affirm substantially for the reasons stated in the judge's oral
opinions. Plaintiff argues the judge erred in "disregard[ing] the history of
parental alienation" and overlooking the best interest factors contained in
N.J.S.A. 9:2-4 to "determin[e] the disputed parenting time issue[s]." See Terry
v. Terry, 270 N.J. Super. 105, 107, 119 (App. Div. 1994) (reversing and
remanding "portions of the original judgment pertinent to custody and
visitation" because "the trial court failed to analyze the evidence presented at
trial pursuant to the mandatory statutory considerations delineated in N.J.S.A.
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9:2-4" as well as "the additional requirement that the court consider and
articulate why its custody decision is deemed to be in the child's best interest").
However, plaintiff's arguments are misguided and misplaced because the judge
neither modified custody nor parenting time. Indeed, during the April 26, 2019
oral argument, the judge explicitly stated she was "not changing any of the terms
of the [agreed-upon] parenting time." Instead, the judge prudently appointed a
law guardian to advocate for G.P., pursuant to Rule 5:8A.
Rule 5:8A provides that
In all cases where custody or parenting time/visitation
is an issue, the court may, on the application of either
party or the child or children in a custody or parenting
time/visitation dispute, or on its own motion, appoint
counsel on behalf of the child or children. Counsel
shall be an attorney licensed to practice in the courts of
the State of New Jersey and shall serve as the child's
lawyer. The appointment of counsel should occur when
the trial court concludes that a child's best interest is not
being sufficiently protected by the attorneys for the
parties.
"A court-appointed counsel's services are to the child." Div. of Youth &
Family Servs. v. Robert M., 347 N.J. Super. 44, 69 (App. Div. 2002) (quoting
Pressler & Verniero, Current N.J. Court Rules, cmt. on R. 5:8A, 5:8B,
www.gannlaw.com (2021)). "Counsel acts as an independent legal advocate for
the best interests of the child and takes an active part in the hearing, ranging
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from subpoenaing and cross-examining witnesses to appealing the decision, if
warranted." Ibid. (quoting Pressler & Verniero, cmt. on R. 5:8A, 5:8B). In In
re M.R., 135 N.J. 155, 173 (1994), our Supreme Court explained the difference
between the role of a law guardian, pursuant to Rule 5:8A, and GAL, pursuant
to Rule 5:8B, noting that appointment of a law guardian is "for legal advocacy"
while a GAL's
services are to the court on behalf of the child. The
GAL acts as an independent fact finder, investigator
and evaluator as to what furthers the best interests of
the child. The GAL submits a written report to the court
and is available to testify. If the purpose of the
appointment is for independent investigation and fact
finding, then a GAL would be appointed.
[Ibid. (quoting Pressler & Verniero, cmt. on R. 5:8A,
5:8B).]
"We made the same distinction in [In re] Adoption of a [C]hild by E.T.,"
where we stated "the basic role of a law guardian for . . . a minor is to 'zealously
advocate the client's cause' whereas the basic role of a [GAL] is to assist the
court in its determination of the . . . minor's best interest." Robert M., 347 N.J.
Super. at 70 (App. Div. 2002) (quoting In re Adoption of a Child by E.T., 302
N.J. Super. 533, 539 (App. Div. 1997)). The decision to appoint either a GAL
or a law guardian under the Rules is left to the "broad discretion" of the Family
Part judge. Gyimoty v. Gyimoty, 319 N.J. Super. 544, 550 n.1 (Ch. Div. 1998).
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Here, the judge clearly articulated her reasons for appointing a law
guardian and repeatedly expressed a thorough understanding of the differing
roles between a law guardian and a GAL. Given the circumstances in the case,
we discern no abuse of discretion in the judge's appointment of a law guardian
to advocate for G.P., and we conclude plaintiff's contrary arguments are
uniformly without merit. A Family Part
judge entrusted with these difficult and often heart-
rendering decisions must be advised of a child's wishes
if justice is to be done. Law guardians are obliged to
make the wishes of their clients known, to make
recommendations as to how a child client's desires may
best be accomplished, to express any concerns
regarding the child's safety or well-being and in a
proper case to suggest the appointment of a guardian ad
litem.
[Robert M., 347 N.J. Super. at 70.]
That is exactly what occurred here.
To the extent we have not addressed a particular argument, it is because
either our disposition makes it unnecessary or the argument was without
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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