M.A.P. v. N.E.G.

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2576-16T1

M.A.P.,

              Plaintiff-Respondent,

v.

N.E.G.,

          Defendant-Appellant.
_______________________________

              Submitted November 16, 2017 – Decided December 8, 2017

              Before Judges Simonelli and Haas.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Somerset
              County, Docket No. FD-18-0229-17.

              The Romero Firm, LLC, attorneys for appellant
              (Pablo Forray, on the brief).

              Respondent has not filed a brief.

PER CURIAM

        In this non-dissolution matter, defendant appeals from the

Family Part's January 24, 2017 order denying her motion for

reconsideration        of   an   earlier    order    that    granted    plaintiff
residential custody of the parties' two-year-old son, A.C. (Andy).1

The court entered the custody order on November 29, 2016, after

defendant    was    unable      to    get   to    the     courthouse       in    time     to

participate in the proceeding.                   Having considered defendant's

arguments in light of the record and applicable principles of law,

we   conclude      that   the    trial      court    mistakenly        exercised        its

discretion   in     conducting        the   custody       hearing     in   defendant's

absence.

      Up   until    November     29,     2016,      there      was    no   court     order

establishing custody, parenting time, or child support for the

parties'    child.        Defendant      acted      as    the    parent     of   primary

residence, plaintiff had parenting time as agreed upon by the

parties, and he periodically paid defendant child support.                              For

the first two years of Andy's life, he and defendant lived with

E.C., who was defendant's former boyfriend and the father of her

two other children.          This arrangement ended shortly before this

litigation    commenced,        and    defendant         and    the   three      children

thereafter lived separately from E.C.

      On October 3, 2016, plaintiff filed a complaint alleging he

was now taking care of Andy every night and, therefore, he should



1
  We use initials and fictitious names to protect the privacy of
the family.


                                            2                                      A-2576-16T1
have physical custody of the child instead of defendant.         The

clerk's office mailed a notice to defendant, stating that the

matter would be heard on November 29, 2016.2

     When the trial judge called the matter at approximately 3:20

p.m. on that date, only plaintiff was present.3   Plaintiff stated

he spoke to defendant during the past week, but did not talk to

her about the hearing and did not know whether she was aware that

a court proceeding had been scheduled.

     The judge then telephoned defendant.   Through an interpreter,

the judge told defendant that plaintiff had filed an application

for custody of Andy and asked if she was "able to participate in

this hearing."    Defendant replied, "It would be better if I could

come personally" and would "come right now if it's possible."    The

judge asked defendant if she could get to the courthouse by 4:00

p.m. and defendant said, "Of course."    Defendant asked the judge

if she could bring a witness, but the judge stated, "No, no

witnesses here.     You just need to come yourself . . . to the

Somerset County Courthouse."




2
  The clerk's office sent the notice by regular mail and by
certified mail, return receipt requested.
3
 Court staff advised the judge that the certified mail containing
the hearing notice had not been claimed, and the notice sent by
regular mail had not been returned.

                                  3                         A-2576-16T1
     When defendant did not appear by 4:25 p.m., the judge decided

to proceed in her absence.      Plaintiff testified that he picked

Andy up from defendant's house each night around 6:00 p.m. and the

child slept at plaintiff's house overnight.    At 7:00 each morning,

plaintiff took the child to a babysitter, where he stayed until

1:00.   Defendant then picked Andy up from the babysitter and she

cared for him until 6:00 p.m.    Based upon this schedule, plaintiff

asserted he was now the child's primary caretaker and should be

the parent of primary residence.       Plaintiff also stated that he

wanted to have residential custody of Andy because defendant was

always trying to collect child support from him.

     At the end of the hearing, the judge rendered a brief oral

opinion granting the parties joint legal custody of Andy, with

plaintiff having residential custody.        The judge stated that

plaintiff was willing and able to care for the child, had a stable

household, and would permit defendant to have reasonable parenting

time.

     The   next   morning,      defendant   filed   a   motion    for

reconsideration and for a return of Andy to her physical custody.

She then retained an attorney and filed a certification in support




                                   4                         A-2576-16T1
of her motion.4 In the certification, defendant asserted she never

received a copy of plaintiff's complaint or the hearing notice.

Instead, she "first learned of [p]laintiff's legal action to obtain

custody of" Andy when the judge called her on November 29, 2016.

Defendant stated she got her three children ready and attempted

to get to the courthouse in time.       However, she did not arrive

until after it had closed for the day.     She returned on November

30, and obtained a copy of the court's order.

     Defendant   provided   a   certification    from   her   neighbor

concerning the hearing notice.        The neighbor stated that the

envelope containing the notice was left in her mailbox on October

22, 2016.   The neighbor did not know who defendant was and simply

held the notice in the hope someone would come and pick it up.

The day after defendant filed her motion for reconsideration,

defendant's friend asked the neighbor if any of defendant's mail

had been delivered to her and she gave him the notice.

     Defendant also asserted that plaintiff took little interest

in the child after his birth, and only visited him occasionally.

She stated that E.C. "has always been the boy's de facto father"

and allowed her to give the child his surname.    Defendant asserted



4
  The attorney also filed an order to show cause seeking to have
custody of the child immediately returned to defendant. The judge
denied the motion after determining it was "non-emergent[.]"

                                  5                            A-2576-16T1
that she and plaintiff met with an immigration lawyer in March

2015.    After the lawyer advised the parties "that [p]laintiff's

immigration case could be reopened if he had a child born in the

United   States[,]"     plaintiff    asked    for     a    paternity     test   that

confirmed he was the child's father.                According to defendant,

plaintiff then began to take more interest in Andy, although he

provided little financial support.

       Although   she   was   no   longer    living       with   E.C.,   plaintiff

certified that E.C. was the one who picked up all three children

each night while she went to work.                  E.C. kept the children

overnight and then took them to school or the babysitter the next

day.    E.C. provided a certification stating that plaintiff played

only a limited role in the child's life.

       Following oral argument on January 24, 2017, the judge denied

defendant's motion for reconsideration.             The judge did not address

defendant and her neighbor's assertions that the hearing notice

was delivered to the wrong apartment.           Instead, the judge stated:

                 The [c]ourt waited until about 4:30,
            maybe 4 - - even as late as 4:40 and
            [defendant] did not appear.     Therefore, we
            proceeded without her. So I do not find that
            [defendant's lack of] service argument has any
            merit because not only was she provided with
            a copy of the papers[,] but this [c]ourt
            communicated directly with her on the record
            and she informed the [c]ourt she would be here
            and she did not appear, without calling the
            [c]ourt and explaining why.

                                       6                                    A-2576-16T1
     The judge also denied defendant's request that custody of the

child be returned to her because defendant could not demonstrate

there had been a change of circumstances after the judge switched

residential custody from defendant to plaintiff on November 29,

2016.     This appeal followed.

     On    appeal,   defendant    argues   the   judge   should   not    have

proceeded on November 29, 2016 in her absence.           We agree.

     A judge's decision to grant an adjournment to enable a party

to participate in a matter rests within its sound discretion. J.D.

v. M.D.F., 
207 N.J. 458, 480 (2011).         The exercise of discretion

must be "founded upon the reason and conscience of the judge, to

a just result in the light of the particular circumstances of the

case."     State v. Hayes, 
205 N.J. 522, 538 (2011) (quoting Smith

v. Smith, 
17 N.J. Super. 128, 132 (App. Div. 1951), certif. denied,


9 N.J. 178 (1952)).

     The judge should also consider the impact of proceeding

without both parents on the best interests of the child.                  See

Luedtke v. Shobert, 
342 N.J. Super. 202, 214 (App. Div. 2001)

("[W]here . . . a party is seeking relief which will impact upon

a child, who has no independent representation, the court should

seldom, if ever, proceed without both parents being represented,

or, if they choose not to be, then being entirely satisfied that

the child's interests are being adequately protected.").                As we

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have previously held, "changes in custody are not to be made

without a plenary hearing, absent exigent circumstances."         Entress

v. Entress, 
376 N.J. Super. 125, 133 (App. Div. 2005).

      In this case, the judge was not presented with an emergency

situation that warranted a hearing on that date, and proceeding

in defendant's absence was not compelled by the interests of the

child.     We appreciate the judge's concern that defendant stated

she could appear by 4:00 p.m. and then did not do so.            However,

in deciding to conduct the hearing without defendant, the judge

did not adequately consider the relative prejudice to the parties,

including the child.

      The prejudice to defendant of a one-sided presentation of the

issues was obvious.       See Berkowitz v. Soper, 
443 N.J. Super. 391,

407 (App. Div. 2016) (discussing prejudice to a defendant of trial

conducted in her absence).       The one-sided proceeding also deprived

the child of a hearing and best interests determination based on

a   full   presentation    of   the   evidence.   As   for   prejudice    to

plaintiff, we recognize that he was present, but this matter could

have easily been scheduled for another day within a short time

period.

      Plainly, Andy would have been better served by a determination

of his best interests based on a complete presentation of evidence

by both parties.   Therefore, we conclude that the judge mistakenly

                                       8                           A-2576-16T1
exercised her discretion in proceeding on November 29, 2016 and

changing the parties' long-standing custody and parenting time

arrangement in the absence of defendant.

     We    are    also    satisfied      that    the   judge   erred     in   denying

defendant's motion for reconsideration.                 We review the denial of

a motion for reconsideration to determine whether the trial court

abused its discretionary authority.                 Cummings v. Bahr, 
295 N.J.

Super. 374, 389 (App. Div. 1996).                 Here, defendant explained in

her certification that she never received notice of the hearing

and did everything she could after the judge called to get to the

courthouse       before   the     matter       concluded.      Indeed,    defendant

returned    the    next       morning,    obtained     the   judge's     order,    and

immediately      filed    a    motion    for    reconsideration.       Defendant's

neighbor confirmed that defendant did not receive the notice until

two days after the hearing.             The judge mistakenly did not consider

these certifications in denying defendant's motion.

     The judge also failed to adequately address defendant and

E.C.'s assertions that plaintiff was not taking care of Andy

overnight as he alleged.          The conflicting factual positions of the

parties raised issues of credibility that should not have been

resolved without a plenary hearing.

     Under these circumstances, we are constrained to reverse the

November 29, 2016 and January 24, 2017 orders and remand for a

                                           9                                  A-2576-16T1
plenary hearing on the issue of custody.         The trial court shall

conduct the hearing and render a final decision within thirty days

of the date of this opinion. Pending the completion of the remand,

the parties shall continue the status quo by sharing joint custody

of   Andy,   with   plaintiff   maintaining   residential   custody   and

defendant having parenting time as agreed upon by the parties.

      Nothing within this opinion forecasts any views on the merits

of the parties' respective claims.       We say no more than that the

initial custody determination for this child should not have been

made without a plenary hearing with both parties present.

      Reversed and remanded.     We do not retain jurisdiction.




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