Milne v. Goldenberg
428 N.J. Super. 184
| N.J. Super. Ct. App. Div. | 2012Background
- Dual final judgment of divorce in 2007 dissolved 19-year marriage; trial court adopted plaintiff Milne as PPR and defendant Goldenberg as PAR with specified parenting time and initially appointed a Parenting Coordinator (PC).
- GAL (Linda Schofel) appointed to represent children’s interests after ongoing custody disputes; GAL conducted investigation and recommended custody/parenting time changes.
- March 10, 2011 order enforced participant obligations, including community-service sanction for Milne’s nonpayment of tax liabilities and reallocation of guardian ad litem (GAL) and attorney fees issues.
- March 23, 2011 order appointed a PC (attorney), which violated Supreme Court PC Guidelines for pilot programs; order later reversed on remand.
- April 29, 2011 order reallocated GAL fees (one-third by Milne, two-thirds by Goldenberg) after reconsideration; final appellate record includes September 30, 2011 order affirming some rulings and reversing the PC appointment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether community service sanction was proper. | Milne argues sanctions were abusive given reliance on a third party to resolve tax issues. | Goldenberg contends sanctions were appropriate to enforce court orders and Milne’s willful noncompliance. | Sanction proper; community service reasonable given Milne’s willful noncompliance and ability to pay. |
| Whether GAL procedure at March 21–22, 2011 hearing complied with due process. | Milne asserts she was denied opportunity to testify and present evidence. | GAL testimony required; hearing limited to GAL under Rule 5:8B was permissible. | Hearing limited to GAL testimony was permissible; any error was harmless given the court independently weighed evidence. |
| Whether March 23, 2011 order appointing a PC violated PC Guidelines. | Milne argues Guidelines require parental consent for attorneyPC appointment; Essex County not in pilot. | Guidelines should apply; trial court did not adhere to guidelines. | PC appointment of an attorney violated Guidelines; reversed on remand for proper PC appointment. |
| Whether GAL fees and attorney fees were properly allocated. | Milne challenges gross GAL fees and unequal cost allocation. | Allocations based on ability to pay and reasonableness of charges; no abuse of discretion. | GAL fees reduced to $54,000; unequal allocation upheld based on income disparity; defendant’s fee award affirmed. |
| Whether final allocation of GAL expenses was properly reconsidered on remand. | Milne contested reconsideration and reliance on prior order. | Remand permitted reallocation reflecting financial circumstances. | Final allocation affirmed; remand procedures upheld. |
Key Cases Cited
- Cesare v. Cesare, 154 N.J. 394 (1998) (deference to family court factual findings; standard of review for custody rulings)
- N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88 (2008) (child welfare and deference to family court expertise)
- N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596 (2007) (specialized child welfare custody considerations; appellate review)
- Beck v. Beck, 86 N.J. 480 (1981) (sua sponte custody determinations; best interests standard)
- Fawzy v. Fawzy, 199 N.J. 456 (2009) (GALs are witnesses; cross-examination required)
- Hand v. Hand, 391 N.J. Super. 102 (2007) (courts may modify custody to reduce parental acrimony while serving children's best interests)
- Tretola v. Tretola, 389 N.J. Super. 15 (2006) (need for plenary hearing on disputed factual issues in custody matters)
- Fusco v. Fusco, 186 N.J. Super. 321 (1982) (custody disputes involving expert testimony require plenary consideration)