MALLORY R. GLADISH v. ROBERT R. SERVIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MALLORY R. GLADISH,

Plaintiff-Appellant,

v.

ROBERT R. SERVIS,

Defendant-Respondent.

Submitted May 20, 2014 Decided May 29, 2014

Before Judges Reisner and Carroll.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FD-15-0473-13.

DeNoia & Tambasco, attorneys for appellant (G. John Germann, on the brief).

Tonneman, Vuotto, Enis & White, attorneys for respondent (Andrea B. White, of counsel; Ashley N. Richardson, on the brief).

PER CURIAM

Plaintiff Mallory Gladish appeals from a May 31, 2013 Family Part order that denied her motion to vacate a January 18, 2013 order and directed the parties to participate by consent in determining child support. After reviewing the record in light of the contentions advanced on appeal, we are unable to conclude that plaintiff's assent to the custody and parenting time provisions of the January 18, 2013 order was knowing and voluntary, nor intended as anything more than an interim resolution until she returned with counsel. Accordingly we reverse and remand for further proceedings consistent with this opinion.

The parties, who were never married, have a daughter who was born in September 2012. On October 19, 2012, plaintiff filed a complaint seeking joint legal custody and primary physical custody of the child, and to compel defendant Robert Servis to pay fifty percent of the child's medical expenses.

Initially both parties were represented by counsel on the January 18, 2013 hearing date. The parties attempted to mediate the issues during the morning session. After their efforts proved unsuccessful, they appeared before the trial judge that afternoon. Plaintiff's counsel then sought to withdraw, citing a breakdown in their relationship. The court granted the application, and indicated it would adjourn the matter for a thirty-day period to allow plaintiff to retain new counsel.

The court then inquired as to details of an interim parenting time schedule to be implemented pending the next court appearance. The judge permitted defendant's attorney to read into the record a comprehensive form of custody and parenting time order that she had prepared in advance of the hearing, that contained defendant's proposed permanent resolution.

The proposed order provided, among other things, that the parties would share joint legal and physical custody of the child, and granted defendant overnight visitation with the child from Tuesday morning until Thursday morning each week, and on alternate weekends from Friday evening until Monday morning.

The trial judge engaged in colloquy with defendant's counsel and the unrepresented plaintiff in an effort to foster a negotiated resolution. At times, the judge commented to plaintiff on the appropriateness of defendant's proposed schedule, advising plaintiff that the law favoring the "tender years doctrine" has since yielded to both parents having equal access to the child. At one point during the hearing, the court swore in and took testimony from defendant's mother, who was present in the courtroom, regarding her availability to assist with the child's care.

Nevertheless, during the hearing, plaintiff continued to express concerns over various aspects of the proposed custody and parenting time arrangement. Specifically, she was opposed to the midweek visitation being exercised on an overnight basis, and the alternate weekend visitation extending into Monday morning. As to the latter, the judge indicated, "No. Let him have her until Monday." Plaintiff also expressed doubts about the viability of defendant's request for the right of first refusal to exercise parenting time with the child should plaintiff be unable to do so. When plaintiff attempted to express her concerns about the parties' ability to communicate, the court stopped her, stating, "I don't want to hear this. We're moving forward."

Ultimately, at the conclusion of the hearing, the judge asked plaintiff, "So, you agree? What is the answer?" Plaintiff responded, "Temporarily, until we come back to court. I don't want to agree on this permanently." Both parties then affixed their consent on the order, which the court accordingly entered.

Plaintiff immediately retained new counsel, who promptly moved to vacate the January 18, 2013 order, and to establish a child support order. Defendant opposed the motion, and cross-moved to enforce the order. After securing a transcript of the January 18, 2013 proceedings, and hearing oral argument from counsel, on May 31, 2013, the court denied plaintiff's motion to vacate. The court found no basis to grant relief under Rule 4:50-1, and accepted defendant's argument that any application to modify the prior order should be guided by a change of circumstances analysis, citing Lepis v. Lepis, 83 N.J. 139 (1980), and related case law. Also, since defendant consented to exchange financial information and fix a child support award, retroactive to the filing date of plaintiff's motion, the court ordered that the "[p]arties are to participate by consent in determining child support pursuant to the Guidelines." This appeal by plaintiff followed.

"Generally, the special jurisdiction and expertise of the family court requires that we defer to factual determinations if they are supported by adequate, substantial, and credible evidence in the record." Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012). This court owes "particular deference" to the family courts because of their "special jurisdiction and expertise in family matters." Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Such deference will be "disturbed only upon a showing that the findings are 'manifestly unsupported by or inconsistent with the competent, relevant[,] and reasonably credible evidence' to ensure there is no denial of justice." Ibid. (quoting Platt v. Platt, 384 N.J. Super. 418, 425 (App. Div. 2006)).

"The Family Court possesses broad equitable powers to accomplish substantial justice." Finger v. Zenn, 335 N.J. Super. 438, 446 (App. Div. 2000), certif. denied, 167 N.J. 633 (2001). This court "accord[s] great deference to discretionary decisions of Family Part judges." Milne, supra, 428 N.J. Super. at 197. Such discretion "takes into account the law and the particular circumstances of the case before the court." Ibid. (internal quotation marks omitted). This court, however, will not defer to a family court's decision where the court abused its discretion. See, e.g., State ex rel. J.A., 195 N.J. 324, 340 (2008). "An abuse of discretion 'arises when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Milne, supra, 428 N.J. Super. at 197 (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)). The family judge's legal decisions are subject to this court's plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007).

We would also be remiss if we failed to note "New Jersey's strong public policy in favor of the settlement of litigation." Gere v. Louis, 209 N.J.486, 500 (2012); see alsoContinental Ins. Co. v. Honeywell Int'l Inc., 406 N.J. Super. 156, 195 n.31 (App. Div. 2009). "The settlement of litigation ranks high in our public policy." Brundage v. Estate of Carambio, 195 N.J.575, 601 (2008) (quoting Jannarone v. W.T. Co., 65 N.J. Super. 472, 476 (App. Div.), certif. denied, 35 N.J.61 (1961)). "This policy rests on the recognition that parties to a dispute are in the best position to determine how to resolve a contested matter in a way which is least disadvantageous to everyone." Gere, supra, 209 N.J.at 500 (citations omitted) (internal quotation marks omitted).

We particularly note that "[a]dvancing that public policy [of fostering the settlement of disputed claims] is imperative in the family courts where matrimonial proceedings have increasingly overwhelmed the docket . . . . This practice preserves the right of competent, informed citizens to resolve their own disputes in whatever way may suit them." Ibid.(alteration in original) (citations omitted) (internal quotation marks omitted).

Guided by these principles, our review of the record does not support the conclusion that the parties reached a binding, permanent resolution of the custody and parenting time issues at the January 18, 2013 hearing. Rather, it is clear from the record that when plaintiff's initial counsel was permitted to withdraw, plaintiff requested the opportunity to retain new counsel. The court agreed, and indicated that the matter would be adjourned to a new date. The conversation then centered on an interim parenting plan, to be effective during the relatively brief thirty-day adjournment period. Notwithstanding, the court then entered into negotiations with the pro se plaintiff and the represented defendant, designed to reach a permanent custody arrangement.

While we have no doubt that the trial judge acted with the best of motives, we cannot sustain the result that ensued. Essentially, the judge involved herself in the negotiations, choosing certain positions advanced by defendant, despite plaintiff's expression of confusion and her obvious objections and concerns. The judge also sua sponte placed defendant's mother under oath and took testimony from her, without affording plaintiff the right to have her requested attorney present or either party the opportunity to examine the witness, testify, or call other witnesses. In the end, it is clear that plaintiff reluctantly accepted the custody and parenting provisions, but as nothing more than an interim arrangement pending a short return date. As such, we further conclude that it was error for the court to review plaintiff's motion to vacate the prior order under a change of circumstances standard.

Accordingly, we reverse and remand to the trial court to schedule further proceedings to establish a permanent custody arrangement. The parties shall also file and exchange fully-supported Case Information Statements so that the court, upon resolution of the custody proceedings, can establish an appropriate child support award, which the parties have evidently been unable to agree upon. Pending the conclusion of the custody hearing, the provisions of the interim January 18, 2013 order shall remain in effect.

Reversed and remanded. We do not retain jurisdiction.