M.H.S. v. L.G.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5816-12T2

M.H.S.,

Plaintiff-Respondent,

v.

L.G.S.,

Defendant-Appellant.

_____________________________

September 30, 2013

Argued September 16, 2013 Decided

Before Judges Yannotti, Ashrafi and St. John.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Hudson County, Docket No. FM-09-920-13.

David Perry Davis argued the cause for

appellant.

Stacey Boretz argued the cause for respondent (Lindabury, McCormick, Estabrook & Cooper, P.C., attorneys; Ms. Boretz on the brief; Frederick A. D'Arcangelo, on the brief).

PER CURIAM

In this matrimonial case, defendant-wife appeals by our leave from several interlocutory orders of the Family Part that granted unsupervised overnight parenting time to plaintiff-husband; temporarily transferred physical custody of the infant child to husband; and denied wife's applications for a stay. She also appeals as of right from a July 12, 2013 order directing that she be held in custody for refusing to produce the child for unsupervised parenting time with husband.1 The orders were issued without the court holding an evidentiary hearing to consider wife's contention that the child was at risk because husband was allegedly obsessed with internet pornography that contained incestuous themes.

We make no determination here that husband in fact viewed incest or any other kind of pornography, but we conclude that the Family Part erred in discrediting wife's accusations and ordering changes in parenting time and custody without conducting an evidentiary hearing. We reverse and remand for an evidentiary hearing and other proceedings consistent with this opinion.

The parties were married in October 2011, and their only child, a girl, was born in September 2012. In November 2012, husband filed a complaint for divorce. In December 2012, wife filed an answer, a counterclaim for divorce, and a motion for pendente lite relief, including that she be granted sole custody of the child and that husband have parenting time only under supervision. Wife alleged she had recently discovered that husband was "addicted" to internet pornography with an incestuous theme, and that he was also abusing prescription drugs. Husband filed opposition and a cross-motion requesting unsupervised parenting time and a psychiatric evaluation of wife. The motion and cross-motion also requested pendente lite financial rulings that are not relevant to this appeal.

The Family Part heard argument on the motions on January 11, 2013. Husband and wife were present in court with counsel, and the court put them under oath, but it did not take testimony regarding wife's accusations. Counsel for husband alleged that wife and her sister had broken into husband's residence in Brooklyn and planted evidence of pornography sites on his computer. Wife's attorney denied that allegation and agreed to provide wife's evidence to the court. During the lengthy oral argument, the court discussed options for supervised parenting time for husband pending the court's resolution of the dispute. The following colloquy then occurred:

HUSBAND: I refuse to be supervised

. . . .

HUSBAND: I'm sorry. I don't want to be I refuse to be supervised under any circumstances.

COURT: Okay.

HUSBAND: I can wait. That's fine.

COURT: If if he

HUSBAND: I don't want to see my child until everything is settled

COURT: If he wants to wait, that's his prerogative.

HUSBAND: Okay.

On January 15, 2013, the court entered an order addressing the parenting time dispute as follows: (1) ordering joint legal custody of the child, wife being designated the parent of primary residence and husband the parent of alternate residence; (2) directing the parties to propose a court-appointed parenting/custody expert pursuant to Rule 5:3-3(b), and adding that the court would choose the expert if the parties could not agree; (3) referring the matter to the Division of Child Protection and Permanency (DCPP)2 to investigate the "respective allegations of drug abuse, inappropriate sexual conduct, and psychological instability," and also directing wife to forward to DCPP her evidence of pornography sites allegedly viewed by husband and information about how she acquired that evidence; (4) referring the parties for home inspection reports; and (5) directing that a "plenary hearing shall be scheduled as soon as practicable immediately following receipt of the [custody/ parenting time] expert's report."

On January 22, 2013, the court received a certification from wife detailing her accusations, with exhibits attached. She alleged she had separated from husband because he had hit her and because she had found recordings of his sexual activity with other women on the laptop that they shared as their only household computer. Her sister and other family members had counseled her not to return to husband and had convinced her to allow installation of a spyware program on the computer. In November 2012, by means of the spyware, she allegedly found many instances of visits to pornography websites, in particular, with themes of father-daughter or mother-son sexual activity. The titles and pictures shown on the websites suggested they involved under-aged persons. Wife attached lists of websites that had allegedly been visited in November and December 2012. She also described in her certification three specific instances of prior conduct by husband toward the child that she viewed, in retrospect, as unusual and indicating a risk of sexual misconduct.

DCPP conducted an investigation and issued a confidential one-page report dated February 14, 2013. The opening sentence of the report indicated the scope of the DCPP investigation: "No allegations of abuse or neglect, this was a child welfare assessment." The report stated that DCPP had the child examined by a doctor and found no "signs of sexual abuse" or other problems and "deemed the baby a happy healthy child." The wife's residence contained appropriate sleeping arrangements for the child, and background checks on wife's family members living in the residence had been conducted. DCPP had referred husband and wife for psychological evaluations, and husband was also referred for drug use evaluation. The DCPP caseworker had left a message with a detective of the Brooklyn Special Victims Unit of Sex Crimes/Cyber Crimes, presumably regarding wife's allegations of visits to pornography sites. The report contained nothing else about wife's allegations and no closing finding or conclusion. Our record does not reveal when DCPP submitted the February report to the court, and wife's counsel informed us at oral argument that he had not seen the report and was not even aware it existed.

The parties did not move forward in selecting a custody/ parenting time expert, and the court also did not take action in that regard, apparently because the Family Part judge who had heard the case on January 11, 2013 was re-assigned to a different division of the court. In May 2013, husband filed a motion seeking unsupervised parenting time. A judge newly assigned to the case conducted a status conference on May 28, 2013. Both attorneys requested an opportunity to review the results of the DCPP investigation. The court made general reference to a DCPP report it had in its possession but did not disclose the report to counsel.

The court actually had in its possession and reviewed a confidential DCPP report dated May 24, 2013. Like the earlier report, the second report was only one page in length and contained no further information regarding wife's pornography accusations. The only new information was that psychological evaluations had been conducted and the psychologist concluded both parents could benefit from parenting skills training, and that husband's drug use evaluation indicated no adverse results. DCPP had done nothing more to investigate the accusations regarding pornography websites than was indicated in the first report. The May 24, 2013 report also contained no finding or conclusion with respect to wife's accusations of sexual misconduct.

At the May 28 status conference, the court attempted to schedule a date to hear husband's motion to lift restrictions on his parenting time and also stated it would conduct a hearing at which wife would have to authenticate the "screenshots" of website pornography on the computer that she alleged husband had visited. On June 7, 2013, the court issued an order stating that husband's motion "shall be heard pursuant to the motion calendar," and also "that the Division of Child Protection and [Permanency] child welfare assessment prepared on May 24, 2013 found no risk of harm to the minor child from the Plaintiff and that Plaintiff was not in need of substance abuse treatment." Written reasons for the June 7 order, addressing denial of attorney's fees to wife, stated that wife "acted in bad faith" and made "false allegations in open court" regarding internet pornography, which the court described as "a non-issue." The court's finding that wife acted in bad faith was based on "the conclusions of the [DCPP] report."

The next transcribed proceeding occurred on June 28, 2013. Husband appeared with counsel, and wife was present in the courtroom but a new attorney she had retained appeared by telephone. The court denied as untimely the new attorney's request for an adjournment. The court mistakenly believed that the June 28 return date of husband's motion had been fixed at the May 28 status conference in wife's presence. It described wife's retention of new counsel as "a stunt" to delay the matter. The court also stated that wife and her prior attorney were informed on June 14 that husband's motion would be heard on June 28.

Although no testimony was taken on June 28 regarding wife's accusations, and no evidence of pornography websites was considered by the court, the court stated that wife's accusations were not "credible" and were made "in bad faith." Several times the court stated that wife's allegations were determined to be "unfounded" by DCPP. The court stated that wife "is not credible to this court with regards to any of the motions and allegations." Consequently, it ruled that restrictions on husband's parenting time would be lifted.

The court ordered that the child be produced for husband's parenting time starting at 6:00 p.m. that same evening, Friday, through 7:00 p.m. Sunday, and that the same weekend parenting time would apply again the following weekend. The court also stated that a hearing would be conducted on July 12, 2013, to "re-visit" the parenting time schedule and to "review all of the issues." The court entered an order the same date, June 28, 2013, implementing its rulings.

Wife obtained a temporary stay from a single justice of the Supreme Court pending an application for a stay to the Family Part. The Family Part denied a stay on July 9, 2013. Wife then sought an order to show cause in the Family Part for recusal of the Family Part judge. By order dated July 10, 2013, the judge denied the recusal application "as non-emergent" and listed it to be heard on the regular motion calendar on August 9, 2013. The court also ordered wife to produce the child at the July 12 hearing "for parenting time to occur." On Thursday, July 11, 2013, we granted permission to wife to file an emergent motion before us for leave to appeal and a stay, the motion being due in this court on Monday, July 15.

On Friday, July 12, 2013, the Family Part heard motions in the case, but it did not conduct an evidentiary hearing pertaining to wife's allegations of risk to the child. The court declined to delay its parenting time order although counsel argued that the custody and parenting time issue would be submitted to this court, the Appellate Division, early the following week. Upon learning that wife declined to produce the child for weekend parenting time that same evening, the court ordered that she be held in custody until she complied. We are informed that, after several hours in confinement, wife was released without having produced the child.

At the conclusion of the July 12 hearing, the court stated that it was temporarily modifying the custody arrangement and granting physical custody of the child to husband because wife was then incarcerated. Late on Friday, July 12, 2013, the court executed a change-of-custody order, also directing that local police officials enforce the order. Counsel for wife did not receive a copy of the order that evening.

On Saturday, July 13, 2013, police officers appeared at wife's residence to enforce the July 12 change-of-custody order. Wife's counsel made an emergency application before us, and we issued a stay.

On July 24, 2013, the Family Part filed a written opinion pursuant to Rule 2:5-1(b) explaining further its reasons for the several custody and parenting time orders that are the subject of this appeal.

Also on July 24, 2013, we issued an order granting wife's motion for leave to appeal and for a stay of all custody and parenting time orders entered by the Family Part on or after June 28, 2013. We accelerated the appeal, carving out limited jurisdiction for the Family Part to enforce any support orders predating June 28, 2013, to decide the pending application for recusal of the Family Part judge, and also "to consider an application, if made, for supervised parenting time by plaintiff [husband], not overnight."

On August 1, 2013, the Family Part sua sponte entered an order for eleven hours of supervised parenting time for husband each Saturday and Sunday, the supervisor being designated as husband's sister, who was visiting from Egypt, or his mother, about whom little information appears in the record. On August 20, 2013, by oral decision and order, the Family Part denied wife's motion for recusal, granted additional parenting time to husband, and made several other rulings in preparation for trial of the case in October 2013.3

We hold that the custody and parenting time dispute should not have been decided without an evidentiary hearing. See P.T. v. M.S., 325 N.J. Super. 193, 198-200 (App. Div. 1999); Fusco v. Fusco, 186 N.J. Super. 321, 327 (App. Div. 1982).

On appeal of the Family Part's decision on custody and parenting time, our standard of review typically requires that we "uphold the factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record." MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)). Here, the Family Part did not make findings on the basis of evidence presented at a hearing to prove the best interests of the child in accordance with N.J.S.A. 9:2-4(c). Our standard of review, therefore, is broader than if the court's decision were based on findings after an evidentiary hearing. We need not defer to the Family Part's findings and conclusions. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009).

To establish the need for an evidentiary hearing in a custody or parenting time dispute, a party must show that a genuine issue of material fact exists. Segal v. Lynch, 211 N.J. 230, 265 (2012); Lepis v. Lepis, 83 N.J. 139, 159 (1980); see also Pfeiffer v. Ilson, 318 N.J. Super. 13, 14 (App. Div. 1999) ("a plenary hearing is not necessary in every case . . . but rather only where a prima facie showing has been made that a genuine issue of fact exists bearing upon a critical question such as the best interests of the children . . . ").

"A plenary hearing is required when the submissions show 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); accord Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976). "[C]onclusory certifications" do not create a genuine issue of material fact. Faucett v. Vasquez, 411 N.J. Super. 108, 128 (App. Div. 2009), certif. denied, 203 N.J. 435 (2010).

In this case, wife's accusations were not made by means of a conclusory certification. Her January 22, 2013 certification explained how she had obtained evidence from a laptop that she described as the only household computer, and the certification attached lists of websites she claimed husband had visited. It also included screenshots of the pornographic sites. Based on that showing, wife was entitled to an evidentiary hearing to prove her allegations.

The Family Part misread the May 24, 2013 DCPP report as concluding that wife's accusations were "unfounded." Neither DCPP report contained a finding or conclusion that wife's accusations were "unfounded" or "unsubstantiated." The two reports revealed that DCPP did not investigate wife's accusations regarding incest pornography. Nothing in those reports made specific reference to the accusations, and there is no evidence that the caseworker's call to a sex crimes detective in Brooklyn resulted in further investigation or a conclusion regarding wife's allegations.

Even if the DCPP report contained such a finding or conclusion, it is the court's responsibility to determine the facts, and that function cannot be ceded to a third party such as DCPP. See Milne v. Goldenberg, 428 N.J. Super. 184, 202 (App. Div. 2012); Capell v. Capell, 358 N.J. Super. 107, 108-09 (App. Div.), certif. denied, 177 N.J. 220 (2003); P.T., supra, 325 N.J. Super. at 216.

In written reasons attached to its June 7, 2013 order, the Family Part stated: "Given the conclusions of the report, the Court finds that [wife] acted in bad faith for making false allegations in open court, requiring the Court to order the Division to conduct a risk assessment, all the while instigating and exacerbating what has determined to be a non-issue." No substantial or credible evidence exists in the record to support that conclusion. See P.T., supra, 325 N.J. Super. at 219. Although the Family Part did not hear testimony from wife or examine her evidence, it stated that she was not credible in making her accusations. Credibility should have been determined by means of a hearing. See Segal, 211 N.J. at 265; Tancredi v. Tancredi, 101 N.J. Super. 259, 262 (App. Div. 1968).

In its amplification opinion of July 24, 2013, the court stated that it rejected wife's accusations because she had not authenticated the screenshots attached to her certification. It is unclear to us what authentication the court was seeking before proceeding with a hearing. Wife's certification stated that she obtained the screenshots after her sister installed spyware on a computer that she claimed belonged to both wife and husband. A foundation for admission of the exhibits in evidence will likely require her sworn testimony at a hearing and the testimony of her sister, but wife was not given the opportunity to present such testimony.

Furthermore, while we make no determination without an evidentiary record and legal argument as to whether wife or her sister violated any law in installing spyware and intercepting computer images, or in the effect of any such violation on this case, the manner of their obtaining the evidence should not divert the Family Part from its primary function of evaluating the best interests of the child. See Kinsella v. Kinsella, 150 N.J. 276, 317 (1997); Hand, supra, 391 N.J. Super. at 105. Ultimately, it is the court's responsibility to determine the veracity of wife's accusations based on the evidence that is presented at a hearing.

We conclude that the Family Part's decision not to hold an evidentiary hearing was a mistaken exercise of discretion, see Hand, supra, 391 N.J. Super. at 111-12; Fusco, supra, 186 N.J. Super. at 328, and its conclusions that wife's allegations were false and made in bad faith were without substantial support in the record, see P.T., supra, 325 N.J. Super. at 219.

Having determined that a plenary hearing is necessary, we also conclude, reluctantly, that on remand the matter must be heard by a different judge. We sparingly exercise our authority to direct re-assignment of a case on remand, but we do so when necessary "to preserve the appearance of a fair and unprejudiced hearing." Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 1:12-1 (2014); see In re Baby M., 109 N.J. 396, 463 n.19 (1988) (trial judge's weighing of the evidence and potential commitment to findings required re-assignment on remand to another judge); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 617 (1986) (trial judge was committed to findings); Johnson v. Johnson, 390 N.J. Super. 269, 274-75 (App. Div. 2007) (motion judge resolved factual disputes and made credibility determination without a hearing); P.T., supra, 325 N.J. Super. at 221 (in parenting time dispute, Family Part judge reached conclusions insufficiently supported by the evidence and appeared committed to those findings). Because the judge in this case has already found wife's allegations to lack credibility and to have been made in bad faith, and because the judge expressed a strong commitment to her findings, the matter must be assigned to another judge on remand.

Reversed and remanded for a plenary hearing and other proceedings consistent with this decision before a different judge. We do not retain jurisdiction.

1 Our record does not include a written order to that effect, but the transcript of the Family Part proceedings on July 12, 2013, shows that the court cited Rule 5:3-7(a) and ordered wife to be immediately taken into custody and confined.

2 Formerly the Division of Youth and Family Services (DYFS).

3 Wife did not file a motion for leave to appeal, or a notice of appeal, from the August 1 or 20, 2013 orders. Although those orders are not before us on this appeal, wife's original emergent motion requested that the parenting time dispute be remanded for an evidentiary hearing before a different judge of the Family Part.

Upon our granting leave to appeal from the earlier orders, the Family Part no longer had jurisdiction to supervise and control proceedings. Its jurisdiction was limited as indicated in our July 24, 2013 order and as otherwise authorized by specific court rules. R. 2:9-1(a). Nevertheless, the Family Part made rulings and apparently entered a case management order requiring the parties to attend an Early Settlement Panel conference, addressing the schedule for completion of a custody/parenting time expert report, and scheduling a trial date.