MARY ATHERHOLT v. MICHAEL R. HUNTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4987-11T4

MARY ATHERHOLT,

Plaintiff-Appellant,

v.

MICHAEL R. HUNTER,

Defendant-Respondent.

___________________________

January 17, 2013

Argued December 19, 2012 - Decided

Before Judges Grall and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-1491-05.

Kathleen P. Stockton argued the cause for appellant (Archer & Greiner, P.C., attorneys; Ms. Stockton and Peter J. Banfe, on the briefs).

Michael R. Hunter, respondent pro se.

PER CURIAM

Plaintiff Mary Atherholt appeals from the April 26, 2012 Family Part order, which transferred residential custody of her son, M.H.,1 to his father, defendant Michael Hunter. We reverse and remand for a plenary hearing.

M.H. was born in February 1998. Plaintiff and defendant were divorced in Maryland in 2002. In their divorce judgment, plaintiff was granted sole legal and residential custody of M.H. and defendant was granted parenting time. Defendant subsequently moved to Delaware, where he currently resides. In December 2002, plaintiff moved to New Jersey where, in June 2005, she registered the Maryland divorce.

In January 2010, defendant filed a motion, seeking an order granting him sole legal and residential custody of M.H. In a February 25, 2010 order, the trial judge denied the motion without prejudice. The judge ordered the parties to engage in mediation to determine whether there should be a change in residential custody, and if mediation failed to resolve the matter, to file another motion.

Mediation apparently failed because in August 2010, defendant filed another motion. In a September 24, 2010 order, a different judge denied the motion without prejudice, finding there was no evidence warranting a change in custody at that time. The judge also denied defendant's request for the judge to conduct an in camera interview with M.H., and ordered the parties to attend a custody neutral assessment (CNA). The judge did not set a date for a future hearing after receipt of the CNA report.

The CNA report recommended that residential custody remain with plaintiff with an increase in defendant's parenting time. Defendant then contacted the judge and requested a review of the CNA.2 On May 27, 2011, the parties appeared before the judge for the review. The judge made clear he was not conducting a change in custody hearing that day, and would schedule a plenary hearing if the parties were unable to reach an agreement. Plaintiff's counsel agreed the judge could hold a hearing, but argued there were no changed circumstances warranting a hearing.3 The parties consented to having the judge conduct an in camera interview with M.H. The judge stated he would issue an opinion after completing the interview.

On July 14, 2011, the judge interviewed M.H., who expressed his preference to reside with defendant and visit his mother every other weekend. The judge did not issue an opinion after the interview. Instead, eight months later, he sent the parties a letter advising that on April 20, 2012, he would conduct another in camera interview and hold a hearing.4

On April 20, 2012, the parties appeared in court pro se, and the judge interviewed M.H. M.H., now fourteen years old, expressed his preference to reside with defendant after graduating from the eighth grade at the end of the 2011-2012 school year, and visit his mother every other weekend and in the summer. After the interview, the judge informally questioned the parties about what change in circumstances, if any, had occurred since February 25, 2010. Defendant said that M.H. had now expressed a preference to reside with him, and that there were better educational opportunities for his son at a certain high school in Delaware. Plaintiff said that no changes had occurred and M.H. had equal educational opportunities in New Jersey.

Following the questioning, the judge noted that M.H. had done well to that point and had no health concerns while in plaintiff's care. Nonetheless, he found "it's a point in time where [M.H.'s] future is better prepared at [the high] school [defendant proposed] as opposed to the [high school plaintiff proposed]." The judge found a change in circumstances based on M.H.'s age; M.H.'s preference to reside with his father; the educational opportunities offered by the Delaware high school defendant proposed; and because at M.H.'s "age, a father would have more input into what a son's going through." The judge concluded that "the change in circumstances was [M.H.'s] going into high school, and that . . . it would be in the best interest for [M.H.] to go to [the high school defendant proposed]." In an April 26, 2012 order, the judge granted the parties joint legal custody of M.H., and granted defendant residential custody beginning in September 2012.5 This appeal followed.

On appeal, plaintiff raises the following arguments:

I. THE COURT CONDUCTED A CUSTODY HEARING WHEN NO MOTION HAD BEEN FILED AND NO MOTION WAS PENDING BEFORE THE COURT.

II. THE COURT DID NOT PROPERLY FIND THAT THERE WAS A CHANGE IN CIRCUMSTANCES TO WARRANT A REVIEW OF LEGAL OR PHYSICAL CUSTODY.

III. CUSTODY OF THE CHILD WAS NOT A "GENUINE AND SUBSTANTIAL ISSUE" AND IT WAS IMPROPER FOR THE COURT TO INTERVIEW THE CHILD ON EITHER OCCASION.

IV. THE COURT DID NOT PROVIDE PROPER NOTICE TO THE PARTIES THAT A CUSTODY TRIAL WAS GOING TO TAKE PLACE ON APRIL 20, 2012.

V. THE COURT VIOLATED THE PLAINTIFF'S DUE PROCESS RIGHTS BY FAILING TO ALLOW THE PLAINTIFF TO CROSS-EXAMINE THE DEFENDANT OR PRODUCE OTHER WITNESSES OR EVIDENCE.

VI. HAD THE COURT FOUND THERE WAS A CHANGE IN CIRCUMSTANCES, THE COURT ERRED BY FAILING TO GIVE THE PARTIES THE OPPORTUNITY TO ENGAGE IN A PERIOD OF DISCOVERY OR HAVE THE OPPORTUNITY TO RETAIN A CUSTODY EXPERT.

VII. THE WAY IN WHICH THE COURT CONDUCTED THE CHILD[']S INTERVIEWS WAS IMPROPER AND RESULTED IN PREJUDICE TO THE PLAINTIFF.

VIII.THE COURT DID NOT GIVE ANY CONSIDERATION FOR OR ANALYZE THE STATUTORY CUSTODY FACTORS SET FORTH IN [N.J.S.A.] 9:2-4.

IX. THE PLAINTIFF HAD SOLE LEGAL CUSTODY OF THE MINOR CHILD AND WAS PERMITTED TO MAKE ALL EDUCATIONAL DECISIONS FOR THE MINOR CHILD.

Our scope of review of child custody determinations is exceedingly limited. 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); see also Sheehan v. Sheehan, 51 N.J. Super. 276, 295 (App. Div.), certif. denied, 28 N.J. 147 (1958). We will "not disturb the 'factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Where our review addresses questions of law, a trial judge's findings "are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002).

A judgment involving the custody of minor children is subject to modification at any time based on significant changed circumstances that would affect the welfare of the child. Beck v. Beck, 86 N.J. 480, 497 (1981); M.P. v. S.P., 169 N.J. Super. 425, 431 (App. Div. 1979). The court's primary consideration is the best interests of the child. V.C. v. M.J.B., 163 N.J. 200, 227-28, cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000); Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). The court must focus on the child's "safety, happiness, physical, mental and moral welfare." Fantony v. Fantony, 21 N.J. 525, 536 (1956). As part of the analysis, the judge must consider the following factors:

the parents' ability to agree, communicate and cooperate in matters relating to the child; the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child's education; the fitness of the parents; the geographical proximity of the parents' homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents' employment responsibilities; and the age and number of the children. A parent shall not be deemed unfit unless the parents' conduct has a substantial adverse effect on the child.

[N.J.S.A. 9:2-4c.]

A party seeking a change in custody bears the burden of making a prima facie showing of a change in circumstances that affects the welfare of the child. Sheehan, supra, 51 N.J. Super. at 287; Faucett v. Vasquez, 411 N.J. Super. 108, 119 (App. Div. 2009), certif. denied, 203 N.J. 435 (2010). A plenary hearing is required where there is a "genuine and substantial factual dispute regarding the welfare of the children, and the trial judge determines that a plenary hearing is necessary to resolve the factual dispute." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007); see also R. 5:8-6 (requiring the court to "set a hearing date" if it "finds that the custody of children is a genuine and substantial issue"); Mackowski v. Mackowski, 317 N.J. Super. 8, 10-11 (App. Div. 1998) (requiring a plenary hearing where the teenaged child expressed preference to live with her father). As part of the plenary hearing, "the court may on its own motion or at the request of a litigant conduct an in camera interview with the child(ren)." R. 5:8-6. If the court elects to conduct an interview, it shall afford the parties "the opportunity to submit questions for the court's use during the interview and shall place on the record its reasons for not asking any question thus submitted." Ibid. In addition, the parties must be afforded an opportunity to present expert witnesses at the hearing to assist in determining the child's best interests. Kinsella, supra, 150 N.J. at 318-19; Fehnel v. Fehnel, 186 N.J. Super. 209, 215 (App. Div. 1982).

Here, on September 24, 2010, the judge denied defendant's motion to change custody without prejudice instead of setting a date for a future hearing after receipt of the CNA. In Faucett, we admonished this type of practice, finding it "short-circuited . . . the evaluative process that is required [in change of custody matters]." Faucett, supra, 411 N.J. Super. at 130. What occurred here also contravened Rule 5:8-6, which requires the court to set a hearing date within six months after the last responsive pleading where the custody of children is a genuine and substantial issue.

A plenary hearing should have been held in this case. During the judge's interviews with M.H.,6 which occurred after the February 25, 2010 order, M.H. expressed a preference to reside with his father and attend high school in Delaware. This created a genuine and substantial dispute regarding M.H.'s welfare requiring a plenary hearing. Mackowski, supra, 317 N.J. Super. at 11. No formal motion was necessary. The judge had the authority to sua sponte consider the change in custody issue; however, he was required to hold a plenary hearing and consider all of the factors set forth in N.J.S.A. 9:2-4. Beck, supra, 86 N.J. at 489. What occurred on April 20, 2012 did not even remotely resemble a plenary hearing. It was nothing more than an informal inquisition of two pro se parties. Nor did the judge consider or analyze all of the factors set forth in N.J.S.A. 9:2-4.

Accordingly, we reverse and remand for a plenary hearing before a different judge. The parties shall be afforded a brief period of discovery, and may present expert testimony at the hearing. In the event the judge elects to conduct an in camera interview with M.H. prior to the hearing, he or she shall comply with Rule 5:8-6.

Reversed and remanded for further proceedings consistent with this opinion.

1 We use initials to identify the child to protect his identity.

2 The record does not reveal how defendant made the request; however, there is no dispute he did not file a motion.

3 Plaintiff was represented by counsel at various times during this matter.

4 It appears that plaintiff was pro se at this time because the judge addressed the letter directly to her.

5 The judge also granted other relief not relevant to this appeal.

6 Because plaintiff consented to the first interview and did not object to the second one, we reject her argument in Point III that it was improper for the judge to interview M.H.; however, we agree with her argument in Point VII that the judge erred in failing to afford the parties the opportunity to submit questions for the judge's use during the interview. R. 5:8-6.