J.K. v. R.B.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1434-11T2

J.K.,

Plaintiff-Appellant,

v.

R.B.,

Defendant-Respondent.

_______________________________________

November 26, 2012

Submitted October 16, 2012 Decided

Before Judges Yannotti and Harris.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-875-09.

David M. Lipshutz, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Plaintiff appeals from orders entered by the Family Part, which provide, among other things, that the parties shall have joint legal custody of their three minor children, and defendant shall be the parent of primary residence. We affirm in part, reverse in part, and remand the matter for further proceedings.

The parties were married on July 17, 2004. In August 2007, the court imposed certain civil restraints upon the parties; granted plaintiff exclusive possession of the marital residence; granted custody of the children to plaintiff; required defendant to complete a drug/alcohol program; precluded defendant from having contact with his step-daughter; required defendant to remain drug and alcohol free; and allowed plaintiff to refuse parenting time in the event defendant appeared to be under the influence of drugs or alcohol. In September 2008, the court entered another order which required, among other things, supervision of defendant's visits with the children.

In the latter part of 2009, plaintiff filed a complaint for divorce. In 2011, the court conducted a trial in the matter and entered an amended final judgment of divorce on June 14, 2011, which, among other things, denied plaintiff's application for permission to remove the children from New Jersey, granted plaintiff sole legal custody of the children, and provided a schedule for defendant's parenting time. The judgment also provided that the children were to be enrolled in school in New Jersey, and plaintiff was required to provide defendant with a "legitimate address" as to the whereabouts of the children.

On August 8, 2011, defendant filed a motion in aid of litigant's rights, seeking, among other relief, an order holding plaintiff in contempt for failing to comply with the final judgment of divorce; granting him full residential custody of the children; requiring plaintiff to have supervised parenting time based upon her "proven disregard" of the court's order precluding her from removing the children from New Jersey; requiring plaintiff to undergo a psychiatric evaluation and counseling; and awarding defendant counsel fees.

In his supporting certification, defendant stated that plaintiff failed to comply with the final judgment because she did not allow him to have parenting time, had taken the children out of New Jersey, the children were not enrolled in school in New Jersey, and plaintiff had changed the registration of her vehicle to West Virginia. Defendant said that plaintiff told him she was living in West Virginia. He also stated that plaintiff was engaged to be married to a person who "evidently lives in West Virginia."

Defendant additionally stated that he had recently seen the children and was "stunned" by their poor hygiene. He asserted that, at one point, plaintiff told him she was home schooling the children. Defendant also said that plaintiff was telling the children "terrible lies" about him, had filed a report alleging sexual abuse with the Division of Youth and Family Services (Division)1 which had been dismissed, and failed to provide him with an address for the children.

The motion judge considered the motion on September 2, 2011. Plaintiff's attorney told the judge that plaintiff had not been served with defendant's motion and asked the judge to dismiss or carry the motion. The judge stated that defendant had provided the court with a copy of the signed receipt, indicating that plaintiff had been served with the motion papers. The judge also noted that plaintiff had been in contact with the court during the weeks preceding the return date on the motion. The judge refused to adjourn the motion.

After hearing the arguments of counsel for the parties, the judge rendered a decision from the bench. The judge noted that he was familiar with the case, since he had presided over the trial in the matter in May of 2011. The judge said it was his understanding that the children would have been returned to New Jersey. The judge stated that he had not received any documentation indicating that the children would be home-schooled. The judge also said he wanted the children to be educated and he was not satisfied that this was being done.

The judge determined to transfer custody to defendant but was doing so without prejudice. The judge said that if plaintiff could show she had satisfied "the bare minimums" of the State's requirements for home schooling, he would "take a look at that." The judge also said he was concerned plaintiff had not been complying with the previously-entered parenting time order. The judge stated that he wanted the children to be returned to New Jersey by the following day.

The judge again emphasized that his decision was without prejudice. The judge stated that if plaintiff wanted to home school the children, he wanted to see some documentation on that issue. The judge said that, in the meantime, he intended "to take the proverbial bull by the horns" and "see that the children are educated[.]" The judge noted that the school year was scheduled to begin the following week, and said the children were going to be in school at that time.

The judge entered an order dated September 20, 2011, which transferred custody of the children to defendant without prejudice; established a schedule for plaintiff's parenting time; terminated defendant's child support obligation; required plaintiff to provide defendant with necessary documentation for the children's enrollment in school in New Jersey; denied defendant's application to compel plaintiff to undergo a psychiatric evaluation; provided that plaintiff's parenting time need not be supervised; and denied defendant's application to hold plaintiff in contempt.

Plaintiff thereafter filed a motion for reconsideration of the provisions of the September 20, 2011 order changing custody of the children and terminating defendant's child support obligation. Plaintiff also sought, among other relief, an order requiring defendant to provide proof that he had completed a drug/alcohol program, to complete parenting classes, and to pay all child support arrears.

In her supporting certification, plaintiff noted that she had initially moved to West Virginia with the children believing that she had either defendant's consent or the court's approval. She opted to home school the children, employing her skills as a teacher. Plaintiff stated that, as the divorce trial approached, defendant "suddenly took the position" that he did not consent to her move to West Virginia.

Plaintiff noted that, after the trial, the court denied her request to move the children to West Virginia. She said it was "not a simple thing to pick up and" and return to New Jersey. She claimed she moved the children back to her mother's residence in New Jersey, and she went "back and forth" to West Virginia, where her fiancé lives.

Plaintiff additionally said she was "absolutely stunned" the court had transferred custody of the children to defendant. She stated that, after the court entered the September 20, 2011 order, she had to explain to the children, one of whom is autistic, that they were going to reside with their father. According to plaintiff, the autistic child "reacted violently and poorly."

In her certification, plaintiff disputed that she had received defendant's motion in aid of litigant's rights. She said that the children were not living in West Virginia. Plaintiff stated that she had home schooled two of the children in West Virginia and planned to "set up" home schooling for them in New Jersey.

Plaintiff also disputed defendant's claims that she had not allowed him to exercise his parenting time, failed to provide proof of her attendance at a parenting course, and she had not provided the children with adequate care. She said there were serious concerns about defendant and his ability to be custodial parent for the children. She claimed that defendant had engaged in "bizarre and dangerous behaviors." She additionally claimed that defendant had not presented sufficient evidence to show a change of circumstances warranting a change of custody.

Defendant opposed plaintiff's motion and filed a cross-motion to hold plaintiff in contempt for, among other things, failure to transfer the children to defendant in the time required; provide him with her current address and telephone number; cooperate in allowing his telephone contact with the children; and provide documentation that would allow the children to be enrolled in school.

Plaintiff opposed defendant's cross-motion. In her certification, plaintiff acknowledged that she did not transfer the children to defendant when required, but did so a few days later because they had been "traumatized" when told of the change in custody.

Plaintiff also said she had never been ordered to provide defendant with her address and she had "a reason" to keep her address confidential. She stated, however, that defendant knew her address. Plaintiff additionally denied she had blocked defendant's calls, and said she had provided defendant with all records necessary to enroll the children in school.

The judge considered the motions on October 14, 2011. The judge observed that the case was one involving "borderline parental alienation." He said that he had no problem with joint custody, and would establish a parenting time schedule that worked for both parties. He also stated that he was "not content" with having plaintiff make unilateral decisions that the children would be home schooled and she did not have to work. The judge added:

So what I want to do is get back to a point where we have two parents parenting the children and not one; we have two parents making decisions, not one; and that the children remain in [this] jurisdiction for a significant amount of time before we even consider any suggestion of relocation again.

The judge entered an order dated October 14, 2011, which modified the September 20, 2011 order, and provided that the parties would share joint legal custody of the children, with defendant serving as parent of primary residence; the parties would have equal, shared parenting time; and plaintiff must pay defendant child support in the amount of $48 per week. This appeal followed.

Plaintiff raises the following arguments for our consideration:

POINT I

DEFENDANT'S MOTION TO MODIFY THE TWO MONTHS OLD JUDGMENT FOR CUSTODY, AND PLAINTIFF'S SUBSEQUENT MOTION FOR RECONSIDERATION, LEFT THE TRIAL JUDGE WITH TWO CHOICES: (1) DENY DEFENDANT'S MOTION AND CONTINUE CUSTODY WITH PLAINTIFF IF DEFENDANT HAD SHOWN NO PRIMA FACIE CASE FOR A TRANSFER; OR (2) SCHEDULE A PLENARY HEARING IF A PRIMA FACIE CASE HAD BEEN SHOWN. THE TRIAL JUDGE'S DECISION TO TRANSFER CUSTODY ON THE PAPERS WAS [NOT] [APPROPRIATE].

POINT II

THE TRIAL COURT DID NOT CONSIDER NUMEROUS REQUIRED STATUTORY CUSTODY FACTORS AND DID NOT PROVIDE LOGICAL, FACTUAL, AND LEGAL AUTHORITY FOR THE FACTORS IT DID CONSIDER. DEFENDANT DID NOT SHOW EVEN A PRIMA FACIE CASE OF A SUBSTANTIAL CHANGE OF CIRCUMSTANCES WARRANTING A TRANSFER OF CUSTODY OF THE PARTIES' THREE YOUNG CHILDREN.

POINT III

THE TRIAL COURT'S STATED BASIS FOR 50/50 PARENTING TIME WAS ILLOGICAL AND WITHOUT FACTUAL OR LEGAL AUTHORITY.

POINT IV

TRIAL COURT VIOLATED [RULE] 1:7-4 BY FAILING TO PROVIDE FINDINGS OF FACT AND CONCLUSIONS OF LAW.

POINT V

PLAINTIFF WILL NOT PRESENT ARGUMENT AS TO SEVERAL EGREGIOUS PROCEDUR[AL] ERRORS AT THE 9/2/11 HEARING.

We turn first to plaintiff's contention that the trial court erred by transferring custody of the children to defendant without conducting a plenary hearing. "A party seeking to modify custody must demonstrate changed circumstances that affect the welfare of the children." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (citing Borys v. Borys, 76 N.J. 103, 115-16 (1978); Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div.), certif. denied, 28 N.J. 147 (1958)). Furthermore, the court should conduct a plenary hearing "when the submissions show there is a genuine and substantial factual dispute regarding the welfare of the children[.]" Ibid. (citing Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976). See also Lepis v. Lepis, 83 N.J. 139, 159 (1980) (holding that a hearing is required when a party demonstrates the existence of a genuine issue as to a material fact).

We are satisfied that the evidence before the court on defendant's initial motion in aid of litigant's rights was sufficient to warrant an immediate change in custody, without prejudice. As we noted previously, plaintiff did not file any papers in opposition to that motion. Plaintiff claimed she never received the motion papers, but the judge noted that the court had a signed receipt indicating that the motion papers had been served upon her.

Furthermore, defendant's motion papers indicated that the children had been removed from New Jersey, despite the court's prior order denying plaintiff's removal application. Defendant's motion papers also indicated that the children had not been enrolled in school for the term that was about to begin. Based on defendant's submission, the motion judge was justifiably concerned that the children were not being properly educated.

In our view, the record before the trial court was sufficient to warrant the immediate transfer of custody of the children from plaintiff to defendant without prejudice to an application by plaintiff for reconsideration of that determination. We are satisfied that, in view of plaintiff's failure to raise a genuine issue of fact regarding the custody change, the court did not err by entering the September 20, 2011 order changing custody without a plenary hearing.

We conclude, however, that plaintiff's motion for reconsideration of the September 20, 2011 order and defendant's response to that motion raised genuine issues of material fact that should not have been resolved without a plenary hearing. In her motion, plaintiff sought, among other relief, reinstatement of the provision of the final judgment of divorce, which granted her sole legal custody of the children.

In her supporting certification, plaintiff disputed defendant's assertion that the children were not receiving appropriate educational instruction. She claimed she had undertaken a rigorous program of home schooling for the children, which she said had excellent results.

Plaintiff also disputed defendant's assertion that she improperly removed the children from New Jersey in violation of the court's order. Plaintiff asserted that she and the children were living with her mother in New Jersey, and she would travel from time to time to West Virginia, where her fiancé resides.

Plaintiff additionally disputed defendant's assertion that she interfered with his attempts to telephone the children. She said she provided defendant with all information necessary to ensure that the children were enrolled in school.

Plaintiff further claimed that the children were unhappy with the change in custody. She said they were "bewildered and sad." According to plaintiff, one child had gained weight, another child was chewing her nails and skin, and the parties' autistic son was regressing in his behavior. She said defendant's behaviors were "disturbing." She also said that she had a better understanding of how to care for the children than defendant.

We are satisfied that plaintiff's motion for reconsideration raised genuine issues of material fact as to whether the change in custody from plaintiff to defendant was in the children's best interests. We recognize that the court modified the September 20, 2011 order and allowed the parties to share joint custody of the children. We are convinced that the record allowed the court to order a joint custody arrangement as an interim measure, but the court should not have definitively resolved the issues raised by plaintiff's motion without conducting a plenary hearing and making appropriate findings of fact and conclusions of law.

We therefore affirm the court's September 20, 2011, order transferring custody from plaintiff to defendant without prejudice. We affirm in part and reverse in part the court's October 14, 2011 order, and remand the matter for a plenary hearing.

The trial court shall address the factors in N.J.S.A. 9:2-4(c), and any other relevant factor in determining whether a change in custody is in the best interests of the children. The court shall make appropriate findings of fact and conclusions of law. R. 1:7-4(a).

The joint custody arrangement established by the court's October 14, 2011 order shall remain in effect pending the hearing and a decision on plaintiff's motion for reconsideration of the custody change.

Affirmed in part, reversed in part and remanded to the trial court for further proceedings in conformity with this opinion. We do not retain jurisdiction.

1 The Division is now known as the Division of Child Protection and Permanency. See L. 2012, c. 16, eff. June 29, 2012.