Y.D.S. v. V.W.W.

 

(NOTE: The status of this decision is Published.)

                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-2337-18T1

Y.D.S.,

          Plaintiff-Appellant,

v.

V.W.W.,

     Defendant-Respondent.
_________________________

                    Submitted November 6, 2019 – Decided December 12, 2019

                    Before Judges Accurso and Gilson.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Camden County,
                    Docket No. FV-04-1059-17.

                    Law Offices of Joseph Basso, LLC, attorneys for
                    appellant (Joseph Basso, on the brief).

                    Respondent has not filed a brief.

PER CURIAM
      The mother, Y.D.S., appeals from a December 20, 2018 order that changed

the custody and parenting time arrangement for the parties' one child. 1 Because

custody was modified without a showing of a change of circumstances, we

reverse and remand for further proceedings.

                                         I.

      The record presented to us is incomplete. The mother submitted some,

but not all, orders concerning the custody of the child. The father, V.W.W., did

not file a timely brief and we, therefore, precluded him from filing a late bri ef

or other papers. Accordingly, we discern the relevant facts and procedural

history primarily from the orders that were included in the mother's appendix.

      The mother and father dated and, while they were seeing each other, they

had a son, who was born in February 2016. Shortly after the son's birth, the

parties broke up and they have lived separately since that time.

      The relationship between the parties has been contentious since their

breakup. In October 2016, the parties obtained final restraining orders against

one another under the Prevention of Domestic Violence Act,  N.J.S.A. 2C:25-17

to -35. The father obtained a final restraining order against the mother under



1
  We use initials and titles (that is, mother and father) to protect the privacy and
confidentiality interests of the parties. R. 1:38-3(d)(13).
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docket number FV-04-1053-17 (the FRO matter), and the mother obtained a

final restraining order against the father under docket number FV-04-1059-17

(the DV matter).    Most of the orders provided to us were entered in the DV

matter, but in some of the orders the mother is listed as plaintiff and in other

orders the father is listed as plaintiff. A review of the family court's docket in

the DV matter reflects that there were usually two orders entered on each

motion; one order on the form for child support hearings, and a corresponding

order amending the final restraining order.

      We have not been provided with the initial custody order. The record

does, however, establish that as of March 2017, there was an established custody

arrangement. In that regard, we were provided with a March 31, 2017 order

entered in the DV matter that recited and continued the existing custody

arrangement.

      Under that custody arrangement, the mother was designated the parent of

primary residential custody and the father was identified as the parent of

alternate residential custody. The father was also granted the right to enjoy

parenting time with his son on Tuesdays and Thursdays from 12 p.m. to 8 p.m.

and every other weekend from Friday until Sunday at 8 p.m.




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      The record reveals that on at least three occasions — March 31, 2017,

November 1, 2017, and August 21, 2018 — the court denied the father's repeated

requests to change the custody arrangement. On November 27, 2018, the family

court entered an order denying an application for an order to show cause filed

by the father.2 The father had apparently again sought to change custody. In

that regard, the November 27, 2018 order states:

            1. [father's] Order to Show Cause is DENIED without
            prejudice. 2. [father] has not shown by a preponderance
            of the credible evidence that irreparable harm to the
            child will occur if an emergent application is not
            granted. Nor has [father] shown by a preponderance of
            the credible evidence a probability of ultimate success
            on the merits of the complaint.

      Almost one month later, on December 20, 2018, the family court

conducted a hearing on the father's application to change custody. Both parties

appeared at that hearing and neither party was represented by counsel. The court

did not conduct an evidentiary hearing, nor was formal testimony provided.

Instead, the court informally questioned both parties.

      The father stated that he was seeking a change in custody because the

mother was often late for pick up and drop off times and she would change



2
  The order was signed and dated on December 17, 2018, but states that the
decision was made on November 27, 2018.
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parenting time without reasonable notice. Therefore, the father asked the court

to change the custody arrangement to equal parenting time where the parents

would have alternating weeks with the child.

      The mother strongly objected to any change and argued that it was not in

the child's best interest to make such a change. When the court indicated that it

was considering granting the father's request, the mother asked for an

adjournment so that she could retain legal counsel. The court did not grant an

adjournment.

      Instead, without making a finding of a change of circumstances, and

without conducting an evidentiary hearing, the court granted the father's

application.   The court did discuss the factors identified in  N.J.S.A. 9:2- -4

concerning an award of custody of a child. The court also stated that it had

considered the best interest of the child and reasoned that it was in the child's

best interest not to be moved between the parents so often. Thus, the court

entered an order granting the father's application to change the custody and

parenting time arrangement and directed that each parent would have custody of

the child on alternating weeks.




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                                        II.

      The mother appeals from the December 20, 2018 order arguing that the

family court erred in changing custody without (1) a showing of a change of

circumstances, and (2) a plenary hearing. We agree that there was no showing

of a change of circumstances and, thus, we vacate the December 20, 2018 order

and remand the matter for further proceedings.

      Modification of an existing custody order is a "two-step process." R.K.

v. F.K.,  437 N.J. Super. 58, 62 (App. Div. 2014) (quoting Hand v. Hand,  391 N.J. Super. 102, 105 (App. Div. 2007)). First, a party must show "'a change of

circumstances warranting modification'" of the custody arrangements. Id. at 63

(citations omitted) (quoting Beck v. Beck,  86 N.J. 480, 496 n.8 (1981)). If the

party makes that showing, the party is "'entitled to a plenary hearing as to

disputed material facts regarding the child's best interests, and whether those

best interests are served by modification of the existing custody order.'" Ibid.

(quoting Faucett v. Vasquez,  411 N.J. Super. 108, 111 (App. Div. 2009)).

      "The paramount consideration in child custody cases is to foster the best

interests of the child." Beck,  86 N.J. at 497; see also  N.J.S.A. 9:2-4(a) (stating

that in any action concerning children, "the best interests of the child shall be a

primary consideration").


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      Generally, changes in custody should not be ordered without a plenary

hearing. R. 5:8-6; Faucett,  411 N.J. Super. at 119 (citing Entress v. Entress,  376 N.J. Super. 125, 133 (App. Div. 2005)).        "A thorough plenary hearing is

necessary in contested custody matters where the parents make materially

conflicting representations of fact." J.G. v. J.H.,  457 N.J. Super. 365, 372 (App.

Div. 2019) (citing K.A.F. v. D.L.M.,  437 N.J. Super. 123, 137-38 (App. Div.

2014)). The factors to be considered in awarding custody or a change in custody

are set forth in  N.J.S.A. 9:2-4.

      Family courts "are frequently called upon to make difficult and sensitive

decisions regarding the safety and well-being of children." Hand,  391 N.J.

Super. at 111. Given "their special expertise in family matters, we do not

[generally] second-guess their findings and the exercise of their sound

discretion."   Ibid. (citing Cesare v. Cesare,  154 N.J. 394, 413 (1998)).

Nevertheless, when the family court does not hold a plenary hearing, and the

record establishes that the material facts are undisputed, we owe no deference

to the family court.

      Here, the father did not make a primary showing of a change of

circumstances.    Instead, he referenced problems regarding parenting time

exchanges, but there was no showing that those problems impacted the best


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interests of the child. Just as importantly, the mother strongly objected to the

change in the parenting time arrangement and argued it was not in the child's

best interest. The court did not conduct a hearing concerning the child's best

interests and did not allow the mother an adjournment to retain counsel. Given

the custody issue at stake, the adjournment should have been granted.

      We also note that the father had repeatedly filed motions to change the

custody arrangement and other family judges had repeatedly denied those

applications. Indeed, the last application was denied in August 2018, less than

four months before the father made yet another application. The family court

was aware of these repeated applications, but seems to suggest that modifying

custody might help the parties gain the ability to communicate effectively in the

best interest of their child and not to repeatedly make court applications. While

encouraging parents to act in the best interest of their child is a good practice,

its application here rewarded the father for making the same motion numerous

times without any showing of a change in circumstances.

      In summary, we vacate the December 20, 2018 order and remand the

matter to the family court for further proceedings. 3 If the father makes a future



3
  We also vacate any corresponding order in the DV matter or the FRO matter
that memorialized the same change in the custody arrangement.
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application, he must initially establish a prima facie showing of a change of

circumstances warranting modification of the existing custody arrangement. If

such a prima facie showing is made, the court will need to decide whether the

parties should be accorded discovery and a plenary hearing.

      Reversed and remanded. We do not retain jurisdiction.




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