JENNIFER LUYSTER v. JAMES COLUCCI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JENNIFER LUYSTER,

Plaintiff-Appellant,

v.

JAMES COLUCCI,

Defendant-Respondent.

___________________________________________________________

November 21, 2014

Submitted September 23, 2014 Decided

Before Judges Messano and Hayden.

On appeal from Superior Court of New Jersey,

Family Part, Chancery Division, Monmouth County, Docket No. FM-13-1857-11.

Jennifer Luyster, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

In this post-judgment matrimonial matter, plaintiff Jennifer Luyster appeals from a September 9, 2013 order denying as moot her motion to enforce litigant's rights against defendant James Colucci, to enforce the court-ordered parenting time schedule, and to award her other appropriate relief. After considering plaintiff's contentions in light of the applicable legal principles, we reverse and remand for a hearing on plaintiff's motion.

We discern the following facts from the record. The parties were married in 1997 and had two daughters, born in 2000 and 2002 respectively. The August 4, 2003 final judgment for divorce incorporated a consent order setting custody and parenting time. The parties agreed to share joint custody with the children residing with plaintiff. The parenting time schedule stated that defendant would have the children for two weeks each summer.

Due to disagreements over custody and parenting time issues, particularly concerning the children's health, there have been several motions in Family Court. In an order dated July 18, 2011, the trial court granted plaintiff's request that each party notify the other about vacation time "no later than April 1 of each year . . . ."

According to plaintiff, the parties had agreed that defendant's two-week 2013 summer vacation would begin on July 22, 2013, for one week and on August 19, 2013, for the second week. A dispute arose as defendant claimed that plaintiff had promised him two extra days to make up for the children missing visitation with him, in order to attend school activities at home. When the July week ended, defendant refused to return the children.

On August 1, 2013, plaintiff filed a motion requesting that the trial court find defendant in violation of litigant's rights for interfering with the parenting time schedule based on defendant's retention of custody of the children beyond the allotted time. In her motion, plaintiff noted that defendant had previously been found in violation of court orders on several occasions. After plaintiff filed the motion, multiple attempts were made to negotiate a return of the children; however, these efforts were unsuccessful. Defendant replied that the original vacation dates he had proposed were "tentative," and the parties were actively discussing the parenting time schedule. On August 21, 2013, in her reply papers, plaintiff filed a request for oral argument on this motion. The children were returned on August 26, 2011.

The trial court issued an order on September 9, 2013 denying plaintiff's motion. In the order, the trial court found that the issues were moot since the summer was over and as such, no hearings were necessary. Moreover, the trial court found that defendant could not be in violation of litigant's rights "where the parties were actively discussing and disputing the summer vacation schedule." The court also found moot plaintiff's request to hold defendant in contempt for interfering with court-ordered custody. The trial court also noted that the July 18, 2011 order "encouraged [the parties] to first mediate these issues prior to filing a motion in Court" and ordered the parties to attend parenting time mediation. This appeal followed.

On appeal, plaintiff argues first that the trial court erred by failing to make a determination concerning whether defendant's conduct violated litigant's rights and the parenting time schedule. We agree and conclude that the trial court erred by not substantively addressing plaintiff's motion as the issues presented were not moot.

Generally, appellate courts accord considerable deference to the factual findings of Family Part judges. Cesare v. Cesare, 154 N.J. 394, 413 (1998). Such deference is accorded because Family Part judges develop "special expertise" in family matters. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). Similar deference is accorded to the discretionary decisions of Family Part judges. Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012). "Judicial discretion connotes conscientious judgment, not arbitrary action; it takes into account the law and the particular circumstances of the case before the court." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007) (quoting Higgins v. Polk, 14 N.J. 490, 493 (1954)). An abuse of discretion occurs "when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (internal citations omitted).

In contrast, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 378 (1995). Thus, we reverse where "the court ignores applicable standards," Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008), or where the court's "conclusions are [] 'clearly mistaken' or 'wide of the mark'" such that it can be said that a "denial of justice" has occurred. Parish v. Parish, 412 N.J. Super. 39, 48 (App. Div. 2010) (citing N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).

"A court may not make credibility determinations or resolve genuine factual issues based on conflicting affidavits." K.A.F. v. D.L.M., 437 N.J. Super. 123, 137-38 (App. Div. 2014). Instead, where there are genuine and substantial issues of fact in dispute, courts are required to hold a hearing. See Barblock v. Barblock, 383 N.J. Super. 114, 124 (App. Div.), certif. denied, 187 N.J. 81 (2006) (finding that no hearing was required where no factual disputes were demonstrated); see also Mackowski v. Mackowski, 317 N.J. Super. 8, 11 (App. Div. 1998) (remanding for a hearing where the "trial court's order was based on its evaluation of conflicting affidavits and adoption of the assertions of one party over the other" without a hearing).

Here, we agree with plaintiff that the trial court erred by finding that the motion was moot and thereby declining to reach the merits. "An issue is 'moot' when the decision sought in a matter . . . can have no practical effect on the existing controversy." Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006) (internal citations omitted). Courts normally will not decide an issue when the "controversy no longer exists and the disputed issues have become moot." De Vesa v. Dorsey, 134 N.J. 420, 428 (1993). We are convinced that the issues in plaintiff's motion, whether defendant had violated the court-ordered parenting time schedule and, if so, what was the appropriate remedy, were not moot. Under the circumstances here, where the visitation schedule, including summer vacation, was ongoing, remedies for violations of court orders would have an effect on the controversy presented.

It is not disputed in the record that the court-ordered summer visitation was two weeks, which must be set by April 1 of each year. There appeared to be a dispute between the parties about when the father would take two extra make-up visitation days. Based on this dispute, defendant kept the children almost five weeks while the parties discussed the exact date the children would return. Plainly, the dispute concerned a matter of substantial importance, namely whether the defendant had violated the parties' parenting time schedule for keeping the children beyond the time limit stated in the court order.

After defendant refused to return the children, the mother had to hire an attorney and engage in extended negotiations to get the children returned. In her motion, she argued that the defendant was in violation of the court-ordered vacation schedule, which should have been set by April 1 and the children should be returned immediately. Defendant replied that the parties were simply discussing the dates for defendant's vacation time. By determining that the extent of the summer vacation was not clear because the parties were discussing it, the court resolved the contested matter based upon defendant's representations, which were disputed by plaintiff. Consequently, we reverse and remand to the Family Part for a hearing on whether the court-ordered visitation schedule was violated.

We further find that the trial court erred in deciding that the motion to enforce litigant's rights was moot1 because "summer vacations are over." In addition to a motion to enforce litigant's rights under R. 1:10 3, additional remedies are available for violations of custody and parenting orders, including compensatory time with the children, economic sanctions, court-ordered counseling, and modification of the custodial arrangement. R. 5:3-7(a). Consequently, the fact that summer was over at the time the trial court considered plaintiff's motion did not prevent the court from addressing and remedying any violation found. See, e.g., Pasqua v. Council, 186 N.J. 127, 133 (2006) (plaintiffs arrested for failing to pay court-ordered child support); P.T. v. M.S., 325 N.J. Super. 193, 208 (App. Div. 1999) (defendant sanctioned for impeding court-ordered reunification process); Saltzman v. Saltzman, 290 N.J. Super. 117, 120-22 (App. Div. 1996) (sanctioned for failing to pay child support).

Additionally, we note that the issues presented on appeal here are similar to those that occurred in this court's decision in Parish, supra, 412 N.J. Super. at 58. In Parish, the father filed a motion to enforce litigant's rights to compel the mother to comply with the court ordered parenting time schedule. Id. at 44. The trial judge did not review the merits but rather concluded that the motion was moot and directed the parties to bring their disputes to the parenting coordinator. Id. at 47. In reversing the trial judge's decision, we determined that the trial judge's decision "caused unnecessary delay and the parenting time problems remained unresolved" and that the trial judge should have resolved the dispute as the parties "anxiously awaited" a determination from the court. Id. at 58-60.

The reasoning in Parish applies with equal force in this case. By concluding that plaintiff's motion was moot, the trial court left the parties in a state of uncertainty that potentially could give rise to more friction and disputes between the parties. Such a conclusion is bolstered by the fact that defendant has violated previous court orders on several occasions. The trial court should have made a decision in this case and its failure to do so warrants a remand.

We next consider plaintiff's contention that the trial court abused its discretion by not granting oral argument. Pursuant to Rule 5:5-4, a court must "ordinarily grant requests for oral argument on substantive and non-routine discovery motions . . . ." A request for oral argument is timely filed if it is sought in the original moving papers or reply papers. R. 1:6-2(d). In the September 9, 2013 order, the court did not address the reason oral argument was not held on this substantive motion. As we are remanding for a hearing, we need not consider whether the court's failure to permit oral argument was an abuse of discretion.

Reverse and remand for a hearing on plaintiff's motion to enforce litigant's rights.

1 Although we find that the issue of whether the court-ordered summer vacation schedule was violated and the request for sanctions for such violation was not moot, we note even if it were, it should have been addressed by the court. While courts generally will not review a case when the issue has been resolved, a well-known exception to the doctrine of mootness is reserved for those issues that are "likely to reoccur but capable of evading review." Betancourt v. Trinitas Hosp., 415 N.J. Super. 301, 311 (App. Div. 2010) (quoting Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 330 (1996)). The summer vacation issue has the potential to be a recurring issue every year.