MARY ELIZABETH WHITE v. CARL J. FLORCZAK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4287-04T14287-04T1

MARY ELIZABETH WHITE,

Plaintiff-Appellant,

v.

CARL J. FLORCZAK,

Defendant-Respondent.

_______________________________________

 

Submitted April 26, 2006 - Decided May 10, 2006

Before Judges Conley and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, FM-20-1647-93.

Mary Elizabeth White, appellant pro se.

Respondent did not file a brief.

PER CURIAM

Plaintiff appeals a March 4, 2005, order denying her February 28, 2005, order to show cause which sought restoration of her status as custodial parent of the parties' teenage son. Three days prior to the filing of this order to show cause, the trial judge had, on February 25, 2005, entered an order directing the parties to submit to psychiatric evaluations, after which the matter was to be "relist[ed] . . . to determine whether it is in [their son's] best interest for [the] court to reinstate Plaintiff's parenting time or change physical custody. . . . At the plenary hearing [their son] must be present for an in camera interview with the court."

The history to all of this includes the parties' January 24, 1994, final judgment of divorce which provided, pursuant to the parties' property settlement agreement, for joint legal custody of the child with plaintiff having physical custody and defendant having visitation rights. That changed in early 1995, with defendant becoming the residential parent and plaintiff having visitation rights. In early 2005, defendant moved to suspend plaintiff's visitation rights, resulting in the February 25, 2005, order directing psychiatric evaluations.

Plaintiff's order to show cause to resume her visitations, and to change the custodial status of the parties, was denied by the judge because the psychiatric evaluations, and thus the plenary custody hearing, had not occurred. That this is clear is reflected by the following colloquy between the judge and plaintiff:

THE COURT: Ms. White, you know that you were before this Court previously and I ordered a plenary hearing after psychiatric evaluations were completed to determine the issue of custody.

. . . .

Here, today, you're asking for more immediate relief, but notwithstanding my order for that plenary hearing, you want right now to have physical custody of [your son]. So you're now testifying about why you just think it's a better idea in general for [him] to live with you, but that's not what we're here for today. That's what we're coming back for on another day after the psychiatric evaluations are done. . . .

Thus, the judge concluded: "Once the psychiatric evaluations are complete, we'll be back. . . . I will see you at a later date. We have a hearing after the psychiatric evaluations."

It is evident from all of this that plaintiff's appeal is interlocutory. She has not moved for leave to appeal and we see no basis for granting such leave nunc pro tunc.

Ordinarily, we would do no more than dismiss the appeal as interlocutory. We note, however, that plaintiff has asserted in her brief that her required psychiatric evaluation was performed in May 2005. If so, and if submitted to the trial judge, and if defendant's evaluation has also been completed, the plenary custody hearing should, at this point, be conducted.

We, therefore, remand to the trial judge for further proceedings. If the required evaluations have been performed, and a custody hearing not yet scheduled, such hearing should be held forthwith. If such a hearing has already been conducted, and a decision entered, this aspect of our opinion would be moot. If the evaluations have not been completed, efforts should be made to ensure that that is accomplished so that a final judgment can be entered on the custody issue.

Remanded for further proceedings. We do not retain jurisdiction.

 

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4

A-4287-04T1

May 10, 2006