S.M.B v. M.J.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6012-09T2

S.M.B.,

Plaintiff-Respondent,

v.

M.J.,1

Defendant,

and

S.Z.,

Defendant-Appellant.

_________________________________

SubmittedMay 18, 2011 Decided July 7, 2011

Before Judges Sapp-Peterson and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FD-05-16-07.

Bonnie D. Putterman, attorney for appellant.

The Law Office of Paul J. Baldini, P.A., attorneys for respondent (Toni M. Blough, on the brief).

PER CURIAM

Defendant,2 S.Z., appeals from the denial of her motion seeking various relief regarding custody, parenting time, and visitation related to her daughter, S.J., residing at that time in North Carolina with plaintiff, S.M.B. Additionally, the motion sought modification of the August 12, 2009 order to reflect that S.Z. and S.M.B. share joint legal custody of the minor child. Defendant also appeals from the denial of her request for attorney's fees and costs associated with the motion in its entirety. The Family Part judge denied defendant's motion, concluding that New Jersey no longer had jurisdiction over proceedings involving S.J. The court, based upon lack of jurisdiction, also denied plaintiff's cross-motion seeking various forms of relief. We remand to the trial court for the entry of an amended order correcting the designation of S.M.B. in the August 12, 2009 order as having sole legal custody of S.J. We affirm in all other respects.

S.Z. is the biological mother of S.J., born in 1998. M.J. is the biological father of S.J., and S.M.B. is S.J.'s paternal grandmother. From her birth until 2007, S.J. lived with S.Z. In 2007, however, S.Z. was experiencing emotional problems and was abusing drugs. At the same time, M.J. was incarcerated in federal prison in Seattle, Washington. As a result, S.Z. and S.M.B. reached an agreement regarding issues of custody and parenting time that they memorialized in a Consent Order entered by the court on February 28, 2007. The order included the following provision: "The parties shall have joint legal custody of the minor child, [S.J.]" and that "[S.Z.] shall be designated as the Parent of Alternate Residence." The order set forth that S.Z.'s supervised visits with S.J. would be "as agreed upon by the parties." The order also reflected the parties' agreement that unsupervised visits with S.J. would commence upon S.Z.'s satisfaction of conditions outlined in the order.

Thereafter, the parties continued to appear before the Family Part judge concerning matters of visitation and parenting. A December 17, 2007 order denied S.Z.'s motion for unsupervised visitation because she failed to provide satisfactory proof of treatment. On January 25, 2008, the court modified the location for supervised visitation. On March 3, 2009, the court entered an order permitting unsupervised visits with S.J. subject to Probation conducting a "home inspection of defendant [S.Z.]'s residence[.]" The court also ordered that if S.M.B. was willing to pay, a "custody/parenting/relocation evaluation" could be done privately or, alternatively, the evaluation could be done through the Family Court Assessment Team (FCAT).

Thereafter, S.Z. filed a motion seeking the transfer of custody of S.J. back to her. Plaintiff cross-moved for an order permitting her to relocate to North Carolina with S.J. The court conducted a hearing on July 6, 2009, at which S.Z. was the sole witness testifying. In addition to S.Z.'s testimony, the court admitted numerous documents into evidence, including psychological evaluations performed by Doctors Kristen Wynns and Susan McLaughlin. Defendant objected to the court's consideration of most of the documents on hearsay grounds. At the conclusion of S.Z.'s testimony, plaintiff moved to dismiss her custody application. The court granted the motion. The court found that defendant was "not where she was three years ago, that's clear to me. She's taken significant steps to improve her lot. She's taken significant steps to become a better mother. She's not the mess that she was three years ago." Notwithstanding this finding, the court reasoned that it was defendant's burden to show a change in circumstances that warranted a modification of the custody arrangement. Citing Mastropole v. Mastropole, 181 N.J. Super. 130 (App. Div. 1981), the court reasoned that when evaluating whether there had been a change in circumstances justifying an order transferring custody back to defendant,

it can't simply be with regard to Ms. [Z]. It's got to be a change in circumstances with regard to the child. And candidly, I don't have enough, ma'am. You've made progress. You're to be commended for it, but I needed specific proofs and specific facts as to why [S.J.] was going to do better with you and I don't have the record, ma'am.

Turning its attention to plaintiff's relocation motion, the court found that S.M.B. provided legitimate reasons for the desired move to North Carolina, namely, an employment opportunity that would greatly increase S.M.B.'s financial situation. The court granted the motion but retained jurisdiction over the matter "unless or until [it] surrender[ed] jurisdiction. So, even though everybody's headed toward North Carolina, for the time being [this court]'s the right [court] to be given any additional applications." Defendant inquired whether she could come back to court when she had "everything together and can show solid proof that I have everything together[.]" The court responded, "Okay. Well, ma'am, I think I just said that for the time being it remains a New Jersey case."

The court directed plaintiff's counsel to prepare the order memorializing its decision and to submit the proposed order "under the five day rule[.]" R. 4:42(c). The proposed order denied defendant's application for a change in custody and granted plaintiff's cross-motion to relocate S.J. from New Jersey to North Carolina. The order also contained the following language: "IT IS FURTHER ORDERED that custody of [S.J.] . . . shall continue in the sole custody of [S.M.B.]" (Emphasis added). Defendant did not object to the form of the proposed order and, once entered, filed no appeal of the court's ruling.

On June 1, 2010, defendant filed a motion seeking the following relief: (1) designating defendant as the parent of primary residence; (2) alternatively, modifying the parenting time to include overnight summer visitation as well as "[w]inter [b]reak and [s]pring [b]reak"; (3) modifying the [August 12, 2009] order to reflect that the parties share joint legal custody of [S.J.]; and (4) attorney's fees and costs of defendant's motion. In her certification submitted in support of the motion, defendant stated:

9. [Plaintiff's attorney] included in the [August 12, 2009] order that [plaintiff] has "sole custody[.]" Sole custody was never addressed by the court at the hearing. My attorney and I listened to all three CD[]s which contain the entirety of the hearing. The reason this is important is the plaintiff throws the term "sole custody" around every chance she gets. I will demonstrate this by way of the emails received later in my certification.

10. Moreover, a review of the previous orders state that I have joint legal custody of [S.J.] . . . There are no orders in my possession that state the plaintiff has sole custody. This must be amended so I can be apprised of the health and education situations with my daughter should the custody not be changed.

Plaintiff opposed the motion in all respects. Addressing the claim that the August 12, 2009 order did not award her sole custody, plaintiff argued that defendant failed to object to the form of the order, failed to appeal the judgment, and failed to comply with the requirements of Rule 4:50-1 for relief from judgment by submitting a brief in support of her application. Plaintiff also argued that "sole custody . . . is a smoke screen issue" because the "reality of [the] circumstances is that [S.Z.] is not a joint parent with regard to the raising of [S.J.]"

At the court's invitation to respond by brief to the jurisdiction issue raised by plaintiff, defendant submitted a brief. In addition to responding to plaintiff's contention that the court lacked jurisdiction over the matter, defendant addressed the "sole custody" language contained in the August 12, 2009 order. Defendant argued that what the court said on the record on July 9, 2009, and what was reflected in the August 12, 2009 order was "quite different." The brief noted further:

Furthermore, counsel inadvertently or mistakenly changed the custodial arrangement to sole custody with a swipe of a pen. [S.Z.,] who is not well versed in the law and who did not have the benefit of counsel[,] was unable to figure that out from reading the order. This is a court of equity. It would be fundamentally unfair to require [S.Z.] to do something that was not the intent of the court. Moreover, counsel is not asking for relief from a judgment. Simply that the judgment be modified to reflect what was ordered. Clearly a mistake or inadvertence on the part of counsel occurred when he prepared the order. Additionally[,] the mistake or inadvertence was not discovered until counsel listened to the tape of the hearing. Thus[,] the argument over the passage of [eleven] months fails.

Although both parties requested oral argument, the court apparently did not conduct oral argument. Instead, the court issued a written opinion denying the parties' motions in their entirety on jurisdictional grounds. The court observed that S.J. had been living in North Carolina for eleven months and that "substantial evidence concerning [S.J.'s] care, protection, training, and personal relationships is more readily available in North Carolina than New Jersey." The court did not address the claimed error in the August 12, 2009 order.

On appeal, defendant presents the following arguments for our consideration:

POINT I

THE DEFENDANT HAS ESTABLISHED THAT NEW JERSEY HAS CONTINUING EXCLUSIVE JURISDICTION OVER THIS MATTER IN ACCORDANCE WITH N.J.S.A. 2A:34-66.

POINT II

THE COURT ERRED IN DETERMINING THAT THERE WAS NO SUBSTANTIAL EVIDENCE PRESENT IN NEW JERSEY THAT WOULD WARRANT THE NEW JERSEY COURTS RETAINING JURISDICTION OF THIS MATTER.

POINT III

THE COURT ERRED IN NOT ANALYZING ALL OF THE RELEVANT FACTORS SET FORTH IN THE INCONVENIENT FORUM PROVISION OF N.J.S.A. 2A:34-71.

POINT IV

THE TRIAL COURT FAILED TO STAY THE PROCEEDINGS UPON CONDITION THAT A CHILD CUSTODY PROCEEDING BE PROMPTLY COMMENCED IN ANOTHER STATE AS REQUIRED BY UCCJEA.

We have considered the points raised in light of the briefs submitted, the record, and applicable legal principles, and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We do, however, find merit in one issue raised in defendant's brief but not separately set forth as a point, the designation of S.M.B. as having sole legal custody of S.J. in the August 12, 2009 order.3

There is no dispute that the language of the August 12, 2009 order does not reflect the court's oral opinion placed on the record on July 9, 2009. Because the court directed that the proposed order be submitted under the "five-day rule," defendant had the opportunity to review the order and to object. She failed, however, to do so. Nonetheless, the application to correct the error, if it were to be treated, as plaintiff argued before the trial court, as a motion pursuant to Rule 4:50-1(a) ("mistake, inadvertence, surprise or excusable neglect") was timely filed. R. 4:50-2 (relief based upon section (a) must be made within a reasonable time and not more than one year after the entry of the judgment or order from which relief is sought).

When defendant raised the error before the trial court in the June 2010 motion, plaintiff did not dispute defendant's contention that the court never awarded plaintiff sole custody in its July 9, 2009 ruling. Rather, plaintiff invoked procedural grounds as a basis to prevent correction of the record. We recognize that defendant, as a pro se litigant, is held to the same standard for compliance with our court rules as a litigant represented by counsel. Rubin v. Rubin, 188 N.J. Super. 155, 159 (App. Div. 1982). Nonetheless, a procedural bar to relief should not serve as a sword to deny relief, particularly where, as here, the error is undisputed. McNair v. McNair, 332 N.J. Super. 195, 199 (App. Div. 2000) (noting that trial court has continuing jurisdiction to "correct a conceded error in the order[.]").

Moreover, as the record demonstrates, the motions before the court in July 2009 were defendant's motion to change the custody arrangement, which the court denied, and plaintiff's cross-motion to relocate S.J. from New Jersey to North Carolina, which the court granted. Plaintiff's cross-motion merely sought permission to remove S.J. from New Jersey to North Carolina and opposed defendant's motion to change the existing custody arrangement. We need not delineate the potential impact upon defendant resulting from the loss of joint legal custody. See Beck v. Beck, 86 N.J. 480, 486 (1981) (noting that sole custody tends to isolate a child from the non-custodial parent). Defendant should not, in the absence of a judicial determination, be stripped of having joint legal custody over S.J., nor should plaintiff be awarded "sole custody" through an obvious error in an order. See Heinl v. Heinl, 287 N.J. Super. 337, 353 (App. Div. 1996) (explaining that the "oral pronouncement of a judgment in open court on the record constitutes the jural act, and the entry of written judgment is merely a ministerial act memorializing the prior jural act.").

We therefore remand to the trial court for the entry of an amended order correcting the August 12, 2009 order to properly reflect its oral decision denying defendant's motion to change custody and thereby continuing the February 28, 2007 consent order awarding joint legal custody to defendant and plaintiff, with plaintiff designated as the "Parent of Primary Residence" and defendant designated as the "Parent of Alternate Residence."

Affirmed in part. Modified in part and remanded to the trial court for entry of an amended August 12, 2009 order consistent with this opinion. We do not retain jurisdiction.

1 Also referred to as J.M. in the appellate record.

2 Although M.J. is also a named defendant in this matter, reference to defendant throughout this opinion refers to S.Z. only.

3 See VW Credit, Inc. v. Coast Auto. Grp., Ltd., 346 N.J. Super. 326, 335 (App. Div.) (considering an appellant's contention even though it was not set forth in a separate point heading as required by Rule 2:6-2(a)(5)), certif. denied, 172 N.J. 178 (2002).