K.K. v. W.L.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

K.K.,

Plaintiff-Appellant,

v.

W.L.,

Defendant-Respondent.

-

Before Judges Harris and Hoffman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-609-02.

Law Office of Louis G. Guzzo, attorneys for appellant (Mr. Guzzo, on the brief).

Scott T. Schweiger, attorney for respondent.

PER CURIAM

Plaintiff mother appeals from a December 20, 2012 Family Part order that transferred, "temporarily and without prejudice," primary residential custody of her then thirteen-year-old son, T.L. (Trent),1to defendant, her ex-husband, who

lives in Virginia. Because the record provides no indication that the Family Part made the necessary findings and conclusions in support of its decision, we reverse and remand for further proceedings.

I.

Plaintiff and defendant married in 1998 and divorced in 2002. They had one child, Trent, born in 1999. Plaintiff also has two other children, Nigel, born in 1995, and Derek, born in 2003.

Following an eight-day trial in 2004, plaintiff was awarded primary residential custody of Trent, with both parents sharing joint legal custody. Since the completion of the custody trial, the parties have returned to court over a dozen times addressing issues of custody and parenting time.

On September 19, 2012, defendant filed a motion seeking transfer of residential custody of Trent to him. In the motion, defendant claimed that Trent provided him information that Nigel engaged in illegal drug activity. Additionally, defendant claimed there was a history of violence between Nigel and Trent, and alleged that Nigel had been adjudicated in juvenile court based upon a past assault of Trent. Defendant further claimed that Trent repeatedly stated he wanted to live with him due to

constant arguing, fighting, and other issues in his mother's home.

On the return date of the motion, the judge heard oral argument and determined that the issues presented warranted further investigation and review. The judge ordered Nigel to submit to a hair follicle test within fifteen days. On December 3, 2012, she conducted in camera interviews of both Trent and Nigel.2 The judge next held a telephone conference with counsel on December 20, 2012.3 At the conclusion of the conference, the judge entered the order under review, which provided, in pertinent part:

1. The parties are to share joint legal custody of [Trent] . . . with father as [Parent of Primary Residence] and mother as [Parent of Alternate Residence], temporarily [and without] prejudice.

2. On 12/25/12, [Trent] will leave [New Jersey] to reside with his father in Virginia.

. . . .

5.) Within 2 days after school ends in May or June of 2013, the child will return to [New Jersey] for parenting time with mother for 14 days.

6.) Counsel is to notify the Court of [Trent's] return to [New Jersey] to enable the Court to schedule an interview for a status update from [Trent].

7.) During the interview, the Court will fashion a parenting time schedule for the summer and beyond.

The record contains no indication that the order was accompanied by a written or oral opinion or statement of reasons. This appeal followed.

II.

"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). A plenary hearing is required when the submissions show there is a genuine and "substantial factual dispute regarding the welfare of the children." Ibid.; see Lepis v. Lepis, 83 N.J. 139, 159 (1980). Rule 5:8-6 requires that the court conduct a hearing if it "finds that the custody of children is a genuine and substantial issue[.]"

As Judge Messano explained in Faucett v. Vasquez, 411 N.J. Super. 108, 119 (App. Div. 2009):

Absent exigent circumstances, changes in custody should not be ordered without a full plenary hearing. R. 5:8-6; Entress v. Entress, 376 N.J. Super. 125, 133 (App. Div. 2005). That is so because, as we have noted in another context, even "a temporary

decision to change custody can take on a life of its own, creating a new status quo." Peregoy v. Peregoy, 358 N.J. Super. 179, 203 (App. Div. 2003). The status quo ante is significant because "[a] party seeking to modify custody must demonstrate changed circumstances that affect the welfare of the child[]." Hand, supra, 391 N.J. Super. at 105; Beck v. Beck, 86 N.J. 480, 496 n.8 (1981); see Todd v. Sheridan, 268 N.J. Super. 387, 398, 633 A.2d 1009 (App. Div. 1993) (holding that a moving party must demonstrate "changed circumstances which would have an impact on the child's welfare").

The standard of review on matters of custody and parenting time is highly deferential. With respect to custody in particular, the conclusions of trial judges regarding child custody 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 cannot properly assess the decisions made by the judge because no reasons for those decisions were placed on the record. Rule 1:7-4(a) requires that "on every motion decided by a written order" the judge must "by an opinion or memorandum decision, either written or oral, find the facts and state [his or her] conclusions of law[.]" "The rule requires specific findings of fact and conclusions of law[.]" Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 1:7-4 (2013).

"Meaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion." Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990). "The absence of adequate findings . . . necessitates a reversal." Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996). We ordinarily remand to the trial court to make findings of fact if the trial court failed to do so. Barnett & Herenchak, Inc. v. State Dep't of Transp., 276 N.J. Super. 465, 473 (App. Div. 1994).

[Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008).]

Absent a specific finding that there existed no genuine and substantial issue regarding Trent's custody, the failure to conduct a plenary hearing was inconsistent with Rule 5:8-6 and our decisions in Mackowski v. Mackowski, 317 N.J. Super. 8, 11 (App. Div. 1998) (requiring a plenary hearing where the teenage child expressed preference to live with her father), superseded on other grounds by R. 5:8-6, and G.C. v. M.Y., 278 N.J. Super. 363, 368 (App. Div. 1995) (concluding it was improper to make a custody decision on an emergent basis without a plenary hearing and interview with the children in the absence of imminent or threatened harm to the children).

The paramount consideration in any custody case is the best interests of the child. Beck v. Beck, 86 N.J. 480, 497 (1981); Grover v. Terlaje, 379 N.J. Super. 400, 410 (App. Div. 2005). In reaching its best interests determination, the trial court "must

specifically reference the statutory criteria set forth in N.J.S.A. 9:2-4(c)." Luedtke v. Shobert, 342 N.J. Super. 202, 218 (App. Div. 2001) (citing Terry v. Terry, 270 N.J. Super. 105, 119 (App. Div. 1994)). In the absence of "overwhelming admitted facts[,]" a plenary hearing is "virtually a necessity in every custody case[.]" M.C. v. M.C., 215 N.J. Super. 132, 140 (Ch. Div. 1986).

In fairness to the Family Part judge, we recognize that her interview of Trent and Nigel, as well as her review of confidential record and reports, including juvenile proceedings, DYFS records, and Nigel's hair follicle test results, may well have convinced her that Trent faced imminent or threatened harm to warrant an immediate transfer of custody. If that, in fact, was the case, the judge needs to make specific findings of fact and conclusions of law in support of her decision. We also recognize that the judge clearly viewed this as an interim decision as her order transferred custody "temporarily and without prejudice," and provided for a further child interview at the end of the school year. Even so, a plenary hearing was required here.

To summarize our decision, we reverse that part of the order of December 20, 2012 granting the father's motion for

change of custody and remand to the Family Part to fully address the custody issue, following an updated interview of Trent.

If not already scheduled, the Family Part shall complete the further interview of Trent and hold a review hearing by June 28, 2013. Pending further order of the trial court, defendant shall continue to have temporary residential custody of Trent. The proceedings on remand shall include a plenary hearing, unless the court is satisfied that current circumstances indicate an absence of a genuine and substantial issue regarding the custody of Trent. In all events, the court shall make the required findings of fact and conclusions of law. Rule 1:7-4(a).

Reversed and remanded. We do not retain jurisdiction.

1 We use pseudonyms to protect the privacy of the minor children.

2 The record contains no indication that the interviews were recorded, as required by Rule 5:8-6, nor any indication of the hair follicle test results.

3 There is no indication in the record that this conference was recorded.

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