WANDA CARTER v. ANTONIO ASENCION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5620-04T15620-04T1

WANDA CARTER,

Plaintiff-Appellant,

v.

ANTONIO ASENCION,

Defendant-Respondent.

______________________________________

 

Submitted October 31, 2006 - Decided December 8, 2006

Before Judges Holston, Jr. and Grall.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Essex County, FD-07-3865-01.

Wanda Carter, appellant pro se.

Respondent Antonio Asencion did not file a brief.

PER CURIAM

Plaintiff Wanda Carter and defendant Antonio Asencion are the parents of a child who was born on November 26, 2000. Plaintiff appeals from an order granting defendant parenting time in North Carolina for two weeks during the summer of 2005 and every summer thereafter. Defendant did not oppose plaintiff's motion for a stay pending appeal, which we granted, and has not filed a brief on the merits. Because the order was entered without prior notice to plaintiff, we reverse.

Plaintiff and defendant never married. By consent order of February 9, 2001, they share joint legal custody of their child. Plaintiff has "primary physical custody" and defendant has "liberal visitation." On February 22, 2002, a child support order was entered. At that time, defendant was working in Union, New Jersey.

On May 17, 2005, the court denied defendant's motion for a reduction of child support. On the same day, plaintiff filed an application to "terminate [defendant's] support" obligation and obtain "full custody of" the child. On May 23, 2005, the court issued notice that a hearing on plaintiff's application concerning support and custody would be conducted on June 15, 2005. The hearing was conducted as scheduled. Both parties appeared. They signed an order terminating defendant's support obligation, fixing arrears at $0, denying plaintiff's application for sole custody and imposing the visitation schedule that plaintiff challenges on this appeal.

Our review of a judge's decision about parenting time is limited. The judge's conclusions "are entitled to great weight and will not be lightly disturbed on appeal." DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976). In this case, however, we do not have the benefit of a record of the hearing because the recording device in the court room was set at the incorrect speed and cannot be transcribed or deciphered. The facts of the case stated above are drawn from prior orders entered in this matter. The trial judge did not supplement the record with a written statement of reasons in accordance with Rule 2:5-6(c), and defendant did not move to settle or supplement the record as authorized by Rule 2:5-5(a).

Because we are satisfied that plaintiff had no notice that the issue would be addressed on her complaint to terminate defendant's support obligation and obtain sole custody, we need not consider plaintiff's claim that she and defendant had an agreement for parenting time in New Jersey, which the judge ignored. Notice of the issues that will be considered at a hearing is a fundamental component of procedural due process that cannot be disregarded in matters involving parenting time. See, e.g., Fusco v. Fusco, 186 N.J. Super. 321, 327-29 (App. Div. 1982) (noting that rules designed to permit expeditious handling of motions without argument in appropriate cases were never intended "to dispense with due process").

The provisions of the order of June 15, 2005 that require parenting time in North Carolina are reversed and vacated without prejudice to any future application that defendant may wish to file.

 

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A-5620-04T1

 

December 8, 2006