Opinion
DOCKET NO. A-6272-11T2 DOCKET NO. A-5587-12T2
10-24-2014
POROSHAT SHAKOOR, Plaintiff-Respondent, v. KHASHAYAR MOHAMMADI, Defendant-Appellant.
Khashayar Mohammadi, appellant pro se. Poroshat Shakoor, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Grail, Nugent and Accurso. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1746-05. Khashayar Mohammadi, appellant pro se. Poroshat Shakoor, respondent pro se. The opinion of the court was delivered by NUGENT, J.A.D.
Plaintiff Poroshat Shakoor and defendant Khashayar Mohammadi are the divorced mother and father of two special needs children, a son and a daughter. Although the parties are devoted to their children, approximately two years after their divorce they became embroiled in a dispute over the extent to which plaintiff is required to inform defendant about the children's medical and therapeutic regimes, and the extent to which defendant could involve himself in the children's schooling and medical care. The dispute has spawned contentious motion practice, resulting in the seven orders which defendant challenges in these consolidated appeals. The issues defendant raises are fact-sensitive and their resolution requires the expertise that has been developed by Family Part judges, to whom we generally defer when their findings and conclusions are supported by competent, credible evidence. Having considered defendant's arguments in light of the record and controlling law, we conclude that with the exception of the allocation of a parenting coordinator's fees, the decisions underlying the orders are supported by competent, credible evidence. Accordingly, we affirm in part, reverse in part, and remand for the trial court to resolve the issue of allocation of the parenting coordinator's fees.
I.
During the parties' twelve-year marriage, two children were born, both of whom have special needs. When the parties divorced in May 2009, their agreements concerning custody of their children and the procedure they would use to resolve parenting disputes were incorporated into the Amended Dual Judgment of Divorce (DJOD). The two DJOD paragraphs central to the parties' disputes and to this appeal are these:
2. The parties shall share joint legal custody of [their children], defined to require advance consultation on all major and non-emergent decisions concerning each child's health education and welfare. . . . No unilateral decisions shall be made on major issues concerning the children.The DJOD also provided that the children would reside at plaintiff's residence during the week and defendant's residence on weekends.
3. The parties designate [an attorney] as arbitrator to address any parenting issues they cannot resolve, and shall share arbitration costs 50/50.
The parties' post-judgment motion practice began in October 2011 after they were unable to resolve at arbitration a dispute about whether plaintiff was required to notify defendant about non-major medical matters. Defendant learned that a new therapist was treating their son. Claiming that plaintiff violated paragraph two of the DJOD by not informing him of that change, defendant sought, among other things, to compel plaintiff to provide him with the names and addresses of all their son's medical providers; to compel the child's therapists to cooperate with defendant; and to compel plaintiff to inform him of all their children's medical visits and therapeutic sessions. Defendant's motion, and thereafter his motion for reconsideration, resulted in the entry of the first four of the seven orders he challenges in this appeal.
After defendant filed his motion, plaintiff filed a cross-motion seeking sole legal custody of the children, an order limiting defendant's involvement in the children's education, and other relief. Plaintiff explained not only that she was the person who informed defendant about the new therapist for their son, but also that the therapist was using the same program, with the same goals and objectives, as provided by the child's school. She asserted defendant's objective was not to further their children's best interests, but rather to control her. She also alleged defendant had threatened one of their son's teachers with legal action "if they were in contact with [the parties'] son's therapist[.]" In consequence, teachers limited their communications with plaintiff and the child's therapist about the child's "daily progress and activities."
The court granted both motions in part. It granted most of the relief defendant sought except for his request for fees. As to plaintiff's cross-motion, in paragraphs 2(b) and (c) of its November 29, 2011 order, the court placed restrictions on defendant's involvement in the children's education to "major and non-routine matters" and also restrained defendant from interfering with the children's "non-major and routine daily matters." These provisions in that order are the first from which defendant appeals.
Dissatisfied with the court's order, defendant timely moved for reconsideration, seeking to have the court eliminate or modify paragraphs 2(b) and (c) of the order. Defendant also sought to have the court find plaintiff in violation and contempt "of same [c]ourt [o]rder." Plaintiff cross-moved for various relief.
The parties represented themselves at oral argument on the motion for reconsideration. Defendant explained why he needed to have substantial interaction with his children and argued that the court's November order impaired his ability to do so. Defendant believed there should not be any limitation on his interaction with the children, their teachers, or their medical providers.
Plaintiff responded that defendant's over-involvement impaired her ability "as the parent who's taking care of them five days a week" to properly care for them. She pointed out that defendant had asked school personnel to send him copies of any emails they sent to plaintiff. When she received an email informing her that an occupational therapist found her son's shoes to be too tight, defendant sent an email to her asking, "do you call yourself a mother" and "[a]re you ashamed of yourself"? Plaintiff also pointed out that defendant would send emails to the school "telling them to look inside [their] daughter's lunch box to see if [plaintiff] provided [her] with enough nutritional meals."
During oral argument, the court raised the possibility of having a parenting coordinator become involved with the parties. They agreed. In its decision, the court noted its "sense that [defendant] wants someone to micromanage this case and it would rather be him. But he's looking for [the court] to come up with answers as to how the care and wellbeing of their children should be managed with their day to day lives." The court explained that to do what defendant requested would require the court to spend time with the family "to get to know exactly their daily routines and what is in the best interest of the children[.]" Stating that doing so was not feasible, and citing the parties' agreement at oral argument to involve a parenting coordinator, the court appointed one.
In its implementing order dated February 16, 2012, the second of the seven orders from which defendant appeals, the court required defendant to pay the parenting coordinator's initial retainer and seventy-five percent of the parenting coordinator's fees, and required plaintiff to pay twenty-five percent of the fees. The court did not explain why it allocated the costs that way. The court directed the parties to contact the parenting coordinator within five days.
Within three weeks of entering the February order, the court entered a superseding order naming a new parenting coordinator, the first parenting coordinator having been unable to serve as such. The court filed the superseding order on March 5, 2012. On March 26, 2012, the court entered another order to clarify its November 2011 order and define "emergency decisions." The order provided that the children's school was required to consult defendant only in the event of true emergencies involving the education, health, or welfare of the children. The order also limited defendant's contact with the children's school "to conferences and IEP's that have been scheduled by plaintiff."
The court authorized the parenting coordinator "to change or modify this Court's Order if necessary to fulfill their duty as parenting coordinator. The parenting coordinator shall have direct contact with any supervisors related to this order, and shall notify any and all supervisors if a change occurs."
In the statement of reasons attached to this order, the court explained that the clarification was prompted by an inquiry from the school concerning some confusion about language in the November 29, 2011 order.
The court had now entered four orders that spelled out the extent to which defendant could interact with his children's school teachers. Defendant refused to accept the court-imposed restrictions. Rather, he resorted to additional motion practice which resulted in the final three orders from which he appeals.
Within the month following the court's entry of the February 2012 order, defendant filed another motion for reconsideration. He sought, among other things, elimination or a stay of the restriction the court had imposed in its November 2011 order, and he requested an order holding plaintiff in contempt of both the November 2009 and February 2012 orders. He objected to having to pay seventy-five percent of the parenting coordinator's fees. He also renewed his request that the court find plaintiff in contempt of the November 2011 order, and he requested that the court find plaintiff in contempt of the February 2012 order.
While that motion was pending, defendant filed another motion in which he requested a hearing to modify the parties' custody agreement. In his supporting certification, defendant renewed allegations that he had made against plaintiff during their divorce proceedings.
In response, plaintiff filed a motion to strike defendant's pleadings. She also filed an order to show cause with the objective of forcing defendant to comply with his summer parenting time obligations. Plaintiff sought counsel fees and costs.
On July 6, 2012, following a hearing on the order to show cause, the court entered an order compelling defendant to exercise summer vacation time with the children, provided for further relief in the event he did not do so, and required that the children's and parties' passports be held by plaintiff's attorney until the court issued a further order. On July 10, 2012, the court denied defendant's remaining motions and compelled the parties to attend mediation in accordance with the property settlement agreement. The court ordered the allocation of costs to "be split 25% to plaintiff and 75% to the defendant."
Defendant filed a notice of appeal on August 22, 2012, challenging the six orders that had been entered between November 29, 2011 and July 10, 2012. While the appeal was pending, plaintiff filed a certification of services in support of his request for counsel fees for having to file the order to show cause. On June 5, 2013, the court entered an order awarding plaintiff $2500 of the $5530 she requested in counsel fees. The court supported its decision with a written explanation as to its reasons for awarding fees.
On July 22, 2013, defendant appealed the order entered on June 5, 2013. We consolidated the appeals.
II.
Our role in reviewing a decision of the family court is a limited one. Cesare v. Cesare, 154 N.J. 394, 411 (1998). Generally, findings by the trial court are binding on appeal "when supported by adequate, substantial, credible evidence." Id. at 411-12. Indeed, "an appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] 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.'" Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
We also generally defer to the trial court's judgment as to whether a plenary hearing is necessary. Jacoby v. Jacoby, 427 N.J. Super. 109, 123 (App. Div. 2012). "[T]he threshold issue is whether the movant has made a prima facie showing that a plenary hearing is necessary." Ibid. (quoting Hand v. Hand, 391 N.J. Super. 102, 106 (App. Div. 2007)). A plenary hearing is required only in those cases "where the affidavits show that there is a genuine issue as to a material fact, and that the trial judge determines that a plenary hearing would be helpful in deciding such factual issues." Ibid.
We begin with the four orders filed between November 29, 2011 and March 26, 2012. The first, filed on November 29, 2011, limited defendant's involvement with the children's education and medical treatment. The second, filed February 16, 2012, denied his motion for reconsideration, appointed a parenting coordinator, and allocated the coordinator's fees. Defendant argues that the court "did not offer [] any [f]indings of [f]act or citations/ conclusions of applicable law." He claims the transcripts "do not offer any clue to why father's parenting rights should be curtailed[,]" and he cites cases suggesting that modifications to custody orders require a plenary hearing.
Rule 1:7-4(a) requires that a judge, "by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law . . . on every motion decided by a written order that is appealable as of right . . . ." R. 1:7-4(a). Generally, Family Part orders that dispose of post-judgment motions without requiring further proceedings or hearings are final orders and therefore appealable as of right. See Saltzman v. Saltzman, 290 N.J. Super. 117, 124 (App. Div. 1996) (noting that a post-judgment order affecting spousal support may be a final judgment); Adams v. Adams, 53 N.J. Super. 424, 428-30 (App. Div.), certif. denied, 30 N.J. 151 (1959) (holding that an order modifying final decree for separate maintenance was a final order).
Because the November 29, 2011 order was final, the judge should have supported it with findings and a legal conclusion. Had defendant appealed, we would have remanded for that purpose. However, defendant filed a motion for reconsideration, which the judge denied without prejudice in his February 16, 2012 order. The judge supported his decision with an oral opinion. His reasons were supported by the record.
In his February 16, 2012 oral opinion, the judge explained that he perceived defendant's motion for reconsideration, or clarification, as indicative of defendant's desire to have "some one . . . micromanage this case and it would rather be him." The judge's determination was supported by plaintiff's explanation, supported by documentary evidence, that defendant was making implied threats to school personnel. Plaintiff averred that due to the implied threats, teachers had significantly reduced their communications with her regarding one of their children's daily progress and activities. The implied threats had also deterred the teachers from communicating openly with one of the children's home therapists.
The trial court appropriately concluded, both from defendant's certification supporting his original motion and from his certification in support of his motion for reconsideration, as well as plaintiff's certifications, that a restriction on his involvement with the children's teachers and medical providers was appropriate. We find no reason to disturb that determination.
Moreover, the restrictions in the two paragraphs of the November 29, 2011 order that defendant now challenges were implicit in the DJOD. The parties had agreed to share joint legal custody of their children, "defined to require advance consultation on all major and non-emergent decisions concerning each child's health education and welfare." It is abundantly clear from the record that defendant has refused to accept the arbitrator's and court's decisions about what constitutes major medical and education issues, as well as the implicit rulings that defendant's attempts at micromanaging the children's educational programs and therapeutic treatments are not in their best interests.
The scope of defendant's challenge to the second order, dated February 16, 2012, is unclear. In one point in his brief, he argues that the February 16, 2012 order was entered without any accompanying findings of fact or conclusions of law. In another point in his brief, he argues that the allocation of the coordinator's costs and fees was unjust. If defendant is contending that the court abused its discretion by appointing the parenting coordinator, we reject that contention. The court appointed the coordinator after the parties agreed to such an appointment. Moreover, the acrimonial motion practice and the extent to which defendant was attempting to micromanage his children's medical care and schooling, with its consequential adverse effects, underscored the need for neutral intercession by a third party.
Defendant's challenge to the allocation of the coordinator's retainer and fee presents a different problem. Nothing in the record before us evidences that the court explained why it required defendant to pay for the parenting coordinator's retainer and seventy-five percent of his fees.
Defendant does not claim that the February 2012 order was final and appealable as of right. If the order was appealable as of right, defendant's appeal would be untimely and we would dismiss it. R. 2:4-1(a) (requiring appeals from final judgments to be taken within forty-five days of their entry). Because the order was not appealable as of right, the judge was not required by R. 1:7-4(a) to make findings and render conclusions. Nevertheless, R. 1:6-2(f) requires a court that has not made findings of fact to "append to the order a statement of reasons for its disposition if it concludes that explanation is either necessary or appropriate." Rarely, if ever, should a court find it unnecessary to append a statement of reasons to an order allocating costs between or among parties. This is particularly so in a post-judgment action when the allocation appears to be contrary to the provisions of a judgment of divorce or settlement agreement.
That is not to say that the trial judge here did not have the authority to allocate the fees in the manner in which he did. Certainly a trial court has the discretion to make such an allocation based on consideration of any number of factors, including the parties' financial situations and whether the need for a parenting coordinator and the extent of the coordinator's involvement are attributable to the unreasonableness of either party. Here, however, the court gave no reasons for the allocation of costs. The allocation was at variance with the provision in the DJOD that the parties would share the cost of an arbitrator to address parenting issues on a fifty-fifty basis. Accordingly, we remand that issue to the trial court to determine the allocation of costs. We place no restrictions on the manner in which the trial court proceeds and we do not mandate that the court conduct a hearing. Whether a hearing is necessary is a matter of discretion and will depend upon the extent, if any, to which the court can resolve the issue based on undisputed facts.
Defendant also argues that the court's March 5 and March 26, 2012 orders were entered without findings of fact or conclusions of law. Those contentions are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E). The March 5 order appointed a parenting coordinator to replace the parenting coordinator appointed by the previous order, who was unable to serve. The March 5 order was not substantially different from the previous order appointing the parenting coordinator.
Contrary to defendant's arguments, the court's March 26, 2012 order was accompanied by a statement of reasons. Moreover, the order merely clarified previous orders. We have addressed defendant's challenges to the previous orders which the March 26 order clarified.
Defendant next challenges the fifth order, filed July 6, 2012, granting plaintiff's order to show cause and requiring defendant to exercise summer vacation with the minor children during specified periods of time in July, August, and September 2012; providing for sanctions upon his failure to do so; and requiring that the children's passports be held by plaintiff's attorney pending further order of the court. Those issues, related to defendant's exercise of summer vacation in 2012, ended shortly after defendant filed his notice of appeal in August. Accordingly, we deem the issues raised by defendant to be moot.
We turn to the sixth order entered by the court, filed July 10, 2012, disposing of defendant's motion for reconsideration. Defendant had actually filed three motions: one seeking reconsideration of the November 2011 and February 2012 orders; another seeking to have the court vacate the March 26, 2012 order; and a third seeking to open a hearing to modify the parties' custody arrangement. On appeal, defendant attempts to have the sixth, July 10 order vacated for three reasons. First, the court misapplied the law because the order disposed of three motions as motions for reconsideration, when one of the three actually sought a modification of custody. Second, the court failed to consider information that was not previously available to defendant. Third, the order is unclear as to whether it requires mediation or arbitration. We reject defendant's arguments.
The trial court denied defendant's motions on the basis that defendant had not satisfied the standard for reconsideration. That standard is well-known: a motion for reconsideration is addressed to the "'sound discretion of the [c]ourt to be exercised in the interests of justice.'" Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). Reconsideration is reserved for "cases which fall into that narrow corridor" where the prior decision was "based upon a palpably incorrect or irrational basis," or failed to consider or appreciate "probative, competent evidence," or where a "litigant wishes to bring new or additional information to the [c]ourt's attention which it could not have provided on the first application." D'Atria, supra, 242 N.J. Super. at 401.
In his motions to reconsider the November 2011, February 2012, and March 2012 orders, defendant made essentially the same arguments he had made previously when he sought relief from the November 2011 and February 2012 orders. He argued that the court's allocation of the parenting coordinator's retainer and fees was inequitable. He also argued that the February and March orders were unclear and contrary to the DJOD because they required mediation rather than arbitration, and because he, defendant, did not understand the significance of the court appointing a parenting coordinator. The latter argument is belied by the record. To the extent that we have not previously addressed defendant's arguments concerning reconsideration of the November 2011 and February 2012 orders, the arguments are without sufficient merit to warrant additional discussion in a written opinion. R. 2:11-3(e)(1)(E).
Defendant correctly points out that the court treated his motion to reopen custody as one for reconsideration rather than a new motion. Nevertheless, there is no need to remand this matter to the trial court to reconsider defendant's motion. The motion on its face fails to demonstrate "changed circumstances that affect the welfare of the children." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). Rather, the motion attempts to rehash allegations against plaintiff that defendant unsuccessfully made during their divorce litigation and has attempted to inject into the post-judgment proceedings. Consequently, we reject defendant's argument.
Lastly, defendant challenges the seventh order awarding counsel fees to plaintiff. "An award of counsel fees is a decision that generally rests within the discretion of the judge and is thus reviewed for an abuse of that discretion." Van Horn v. Van Horn, 415 N.J. Super. 398, 408 (App. Div. 2010). We have considered the record and the judge's findings and reasons for awarding $2,500 in counsel fees to plaintiff, and have concluded that the judge did not abuse his discretion.
Defendant's remaining arguments are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, reversed in part and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION