JESSE E. DEANE v. BARBARA A. DEANE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JESSE E. DEANE,

Plaintiff-Appellant,

v.

BARBARA A. DEANE,

Defendant-Respondent.

____________________________

April 6, 2015

Submitted October 6, 2014 Decided

Before Judges St. John and Rothstadt.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Cape May County, Docket No. FM-05-81-12.

Frederick A. Mick, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Plaintiff Jesse E. Deane appeals from the Family Part's July 12, 2013 post-judgment order denying his motion for reconsideration of the court's earlier decision denying him overnight parenting time with one of his children.1 In his appeal, plaintiff argues the court erred by not conducting a plenary hearing to determine whether parenting time was in the child's best interest. He further argues the court "abdicat[ed] its authority" by allowing the child to decide whether to spend overnights with him and failed to consider evidence supporting the statutory factors governing a child's best interest. Finally, plaintiff argues his motion for reconsideration should have been granted because he "brought to the trial court's attention several material facts and probative, competent evidence . . . which the court failed to consider" in exercising its authority to determine the child's best interests.

We have considered these arguments in light of our review of the record and the applicable legal principles. We reverse and remand for a plenary hearing, the entry of an order regarding plaintiff's request for parenting time with the child and an explanation for the court's conclusions.

Plaintiff and defendant, Barbara A. Deane, were married in 1993. Five children were born during their marriage: the oldest in 1994, the next in 2000 and triplets in 2004. On January 31, 2013, the parties were divorced pursuant to a judgment entered that date, which incorporated a Marital Settlement Agreement (MSA) dated the same day.

The MSA addressed the parties' custody and parenting time with their children. It provided for joint legal custody of the children, with defendant as the parent of primary residence. The parents agreed to directly arrange parenting time with their eighteen-year-old child; and schedule each parent for four overnights on an alternating basis with their triplets. However, the agreement expressly acknowledged the parties had not resolved the issue of parenting time with their then twelve-year-old daughter. They also acknowledged their dispute about plaintiff's parenting time with their daughter was already the subject of a motion pending before the court. In the MSA they agreed the court would ultimately have to resolve the issue if they did not reach a subsequent agreement. Accordingly, when the parties appeared before the judge, he told them he would talk to their daughter "to get a sense and a feel for where she is and I'll send your lawyers a letter and tell you what I think. Okay? I think that's the best that I can do with that issue." Neither party objected to the suggested procedure.

The motion to which the MSA referred was actually plaintiff's notice of cross-motion, which he filed in September 2012, seeking an order compelling defendant to comply with a parenting plan for all the children recommended by the parties' parenting mediator. According to plaintiff, the plan called for "each party [to have] four consecutive overnights with the children on an alternating basis." In his supporting certification, plaintiff explained the parties began to see the mediator at the suggestion of defendant's attorney and, after several meetings with the mediator, they developed a schedule for parenting time that led to a "'four nights on, four nights off' schedule." According to plaintiff, after a month of compliance, defendant stopped complying with the agreed plan. After further mediation sessions, plaintiff agreed to at least two modifications to the original plan. Nevertheless, defendant still refused to abide by the recommendations or the agreement.

Ultimately, in early September 2012, defendant told plaintiff their almost twelve-year-old daughter would no longer participate in any overnight parenting time with plaintiff and she "was old enough to decide for herself." In her certification opposing plaintiff's motion, defendant explained the decision to discontinue overnight visitation with plaintiff was the child's and based on her desire to remain in the same town where her friends and extracurricular activities were located, rather than stay over at plaintiff's home in another town. Defendant asked the court to interview the child "so that she can express her reasons as to why she is not spending overnights in the [p]laintiff's household."

By April 2013, the parties could not resolve the issue of parenting time for the one child. As a result, plaintiff's counsel wrote to the court asking the judge to interview the child and make a determination.

The judge met with the daughter on May 16, 2013, spoke to her on the record outside the presence of the parties and their attorneys, and subsequently wrote to plaintiff's counsel and defendant. In his letter, he noted he found the daughter "to be a charming, intelligent and otherwise wonderful young lady." Further, their daughter indicated "that she and her father do get together occasionally, be it for dinner or another activity. Given her clearly stated preference, I am not inclined at this juncture [to] order anything other than the current informal arrangement." The court never entered an order memorializing its decision.2

A short time afterward, plaintiff filed a motion for reconsideration. Evidently, defendant did not oppose the motion. In his supporting letter to the court, plaintiff described the history of the parties' involvement with the jointly selected parent mediator. He explained the origin of the mediator's recommendation was the mediator's concern plaintiff's "parenting time should not amount to special occasions or 'weekend Dad' type of time that might affect [their] ability to share in the everyday, and often more difficult, parenting issues." He also described how defendant ceased the overnight visitations when the daughter protested. Plaintiff stated his daughter's decision was based on her erroneous "perceptions about the current situation." He also argued "the [c]ourt should not allow a child of her tender years to dictate the parenting schedule." Contrary to what the daughter told the judge, she only averaged dinner with her father twice a month and saw him a few minutes a couple of times each week when he picked up the other children, at sporting events they attended or while he coached the daughter's basketball team. Finally, plaintiff reminded the court the child's desires are but one component of determining the child's best interests.

After considering plaintiff's motion without oral argument, the court entered an order denying relief. The order further stated

After judicial review the application is denied. The plaintiff's concerns are of a nature that do not lend themselves to judicial remedy.

This appeal followed.

"A motion seeking reconsideration of a prior order is governed by Rule 4:49-2, which requires the movant to explicitly identify the grounds for the motion to fit within that 'narrow corridor' in which reconsideration is appropriate." Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010). "'The motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred." Ibid. (quoting Rule 4:49-2) (citations omitted). "[T]he magnitude of the error cited must be a game-changer for reconsideration to be appropriate." Id. at 289. "'Said another way, a litigant must initially demonstrate that the [c]ourt acted in an arbitrary, capricious, or unreasonable manner, before the [c]ourt should engage in the actual reconsideration process.'" Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)(Emphasis in original)).

"Reconsideration itself is 'a matter within the sound discretion of the [c]ourt, to be exercised in the interest of justice[.]'" Id. at 288 (quoting D'Atria, supra, 242 N.J. Super. at 401).

It is not appropriate merely because a litigant is dissatisfied with a decision of the court or wishes to reargue a motion, but

should be utilized only for those cases which fall into that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.

[Ibid. (quoting D'Atria, supra, 242 N.J. Super. at 401).]

Plaintiff's motion for reconsideration stated the specific grounds he believed supported his motion. They included the court's failure to consider all of the statutory factors relevant to a court's establishment of parenting time when it made its determination to follow the child's wishes without a hearing and its denial of oral argument on the motion to compel parenting time. We agree with plaintiff's assertions that he articulated a legal basis necessitating reconsideration. Further, we find additional omissions made by the judge in rendering this order.

We initially conclude procedural irregularities in the Family Part's resolution of plaintiff's motion were significant, had "potentially serious consequences in terms of the correct and expeditious disposition of litigation, and should not be repeated in the future." Filippone v. Lee, 304 N.J. Super. 301, 305 (App. Div. 1997). These irregularities included the judge not fulfilling his obligation to enter an order as to plaintiff's original motion to compel visitation, R. 1:6-2(f), or provide any statement of reasons or law upon which his order was based. N.J.S.A. 9:2-4(f) ("The court shall specifically place on the record the factors which justify any custody arrangement not agreed to by both parents."); R. 1:7-4(a). As we stated in Filippone

We have repeatedly cautioned the trial court with respect to the critical importance of the obligation to provide findings and a statement of reasons both in terms of the trial and appellate process. Litigants and their attorneys are entitled to know the factual and legal basis of the court's determination, and they are disserved if the trial court fails in this obligation. Moreover, the appellate court ordinarily cannot perform its review function in the absence of findings.

[Filippone, supra, 304 N.J. Super. at 306.]

Also, the court did not offer the parties an opportunity to present oral argument, even though plaintiff specifically requested the opportunity in his notice of cross motion. R. 5:5-4(a). Where a court is asked to consider a "substantive motion . . . the parties should have been allowed to argue orally as a matter both of due process and the appearance of due process." Filippone, supra, 304 N.J. Super. at 306 (App. Div. 1997).

Substantively, the court did not engage in the required consideration of the statutory factors relating to a determination of a child's best interest. Where a court is called upon to make a custody determination, "the ultimate judgment is squarely dependent on what is in the child's best interests." Baures v. Lewis, 167 N.J. 91, 115 (2001) (citing N.J.S.A. 9:2-4; Kinsella v. Kinsella, 150 N.J. 276, 317 (1997); Fantony v. Fantony, 21 N.J 525, 536 (1956)). "The touchstone for all custody determinations has always been 'the best interest[s] of the child.'" Faucett v. Vasquez, 411 N.J. Super. 108, 118 (App. Div. 2009) (quoting Kinsella, supra, 150 N.J. at 317) (alteration in original), certif. denied, 203 N.J. 435 (2010)).

When determining the best interest of a child in custody or parenting time disputes, the court must consider and apply the factors listed in N.J.S.A. 9:2-4(c). Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). The judge must articulate reasons for the custody determination and refer specifically to the pertinent statutory criteria and generally to the statutory scheme. Kinsella, supra, 150 N.J. at 317 (1997); Terry v. Terry, 270 N.J. Super. 105, 119 (App. Div. 1994). These factors are

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. 9:2-4(c) (emphasis added).]

These considerations apply equally to parenting time disputes. "[V]isitation rights are almost 'invariably' granted to the non-custodial parent." V.C. v. M.J.B., 163 N.J. 200, 228 (quoting Beck v. Beck, 86 N.J. 480, 495 (1981)), cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000).

Indeed, the denial of visitation rights is such an extraordinary proscription that it should be invoked only in those exceptional cases where it clearly and convincingly appears that the granting of visitation will cause physical or emotional harm to the children or where it is demonstrated that the parent is unfit.

[Id. at 228-29. (citation and internal quotation marks omitted).]

Usually, the determination of parenting time requires a plenary hearing. "[T]he matter of visitation is so important . . . that if a plenary hearing will better enable a court to fashion a plan of visitation more commensurate with a child's welfare, a plenary hearing must be required by the court even if the parties have waived it." Fusco v. Fusco, 186 N.J. Super. 321, 327 (App. Div. 1982) (citation and internal quotation marks omitted).

In addition to a hearing, the court can interview the child, if she is of sufficient age and maturity. N.J.S.A. 9:2-4(c). "The statute only requires the judge to consider the child's 'preference,' when he or she is 'of sufficient age and capacity to reason so as to form an intelligent decision[.]'" D.A. v. R.C., 438 N.J. Super. 431, 460 (App. Div. 2014). Procedures for interviewing children are set forth in Rule 5:8-6. As we have previously noted, if a judge elects to interview a child,

Rule 5:8-6 mandates the court to: (1) conduct an interview with the child in camera; (2) "afford counsel the opportunity to submit questions for the court's use during the interview"; ([3]) "place on the record its reasons for not asking any question thus submitted"; ([4]) create and preserve a stenographic or recorded audio record of each interview in its entirety; and ([5]) provide transcripts of the interview(s) to counsel and the parties upon request and payment for the cost. Ibid.

The court should also ensure and make clear that "neither parent" is permitted "to discuss nor reveal the contents of the interview with the children or third parties without permission of the court." Ibid. We recommend the court enter a case management order to memorialize this particularly important aspect of the interview process. This order must make clear that any violation of this confidentiality provision may expose the responsible individual to sanctions pursuant to either a motion to enforce litigant's rights brought by a party under Rule 1:10-3, or Summary Contempt Proceedings initiated by an Order to Show Cause under Rule 1:10-2.

[D.A., supra, 438 N.J. Super. at 459.]

Neither the rule nor the statute requires "the judge to ask a child to select between two opposing parents." Ibid.

Where a court properly performs its judicial function, i.e. considers oral argument, holds a hearing if necessary, properly interviews a child, enters an order and gives its reasons for its entry, "'the decision concerning the type of custody arrangement [is left] to the sound discretion of the trial court[.]'" Nufrio v. Nufrio, 341 N.J. Super. 548, 555 (App. Div. 2001) (alterations in original) (quoting Pascale v. Pascale, 140 N.J. 583, 611 (1995)). Therefore, on appeal "the opinion of the trial judge in child custody matters is given great weight . . . ." Terry, supra, 270 N.J. Super. at 118 (citations omitted).

However, we cannot defer to the trial court here because it did not perform its judicial function. Plaintiff's concern about the curtailing of his overnight visits with one of his children warrants a judicial remedy. We acknowledge and appreciate the judge's sensitivity towards the child and his good intentions in attempting to resolve the parties' dispute. However, the judge failed to determine the best interest of the child when he merely interviewed the twelve-year old, despite the apparent consent of the parties to the procedure he followed. Much more was required and ultimately should have resulted in the entry of the appropriate order with either an oral or written explanation of the court's reasoning underpinning its conclusions.

Reversed and remanded for proceedings consistent with this opinion, including a plenary hearing, followed by entry of an order and a statement of reasons. We do not retain jurisdiction.

1 The Family Part judge never entered an order but rather sent a letter on May 20, 2013, to the parties with his decision.

2 A transcript of the judge's conversation with the daughter was prepared in September 2013.