JILLIAN A. MCMICHAEL v. STEPHEN MAY
Annotate this CaseNOT 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-0215-21
JILLIAN A. MCMICHAEL,
Plaintiff-Respondent,
v.
STEPHEN MAY,
Defendant-Appellant.
Submitted April 4, 2022 – Decided April 20, 2022
Before Judges Rose and Marczyk.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester County,
Docket No. FD-08-0391-18.
Adinolfi, Lieberman, Burick, Roberto & Molotsky, PA,
attorneys for appellant (Drew A. Molotsky, on the
brief).
Respondent has not filed a brief.
PER CURIAM
Defendant, Stephen May, appeals from an August 24, 2021 Family Part
order granting plaintiff, Jillian McMichael's application to modify a custody
order. The trial court, following a summary proceeding, reduced defendant's
parenting time from seven overnights every two weeks, to two overnights every
two weeks. Following our review of the record and applicable legal principles,
we reverse and remand for a plenary hearing and an opportunity for the parties
to conduct discovery.
I.
We derive the following facts and procedural history from the record. The
parties shared joint legal custody of their eight-year-old daughter, E.M., with
defendant designated as the parent of primary residence pursuant to a November
9, 2017 order. Plaintiff and defendant shared parenting time on a 50-50 basis.
Defendant had overnights every Monday and Tuesday, and plaintiff had
overnights every Wednesday and Thursday. The parents alternated weekend
overnights which included Friday, Saturday, and Sunday.
In May of 2021, defendant moved from his parents' home in Deptford
Township, which was close to plaintiff's residence and E.M.'s school, to
Alloway, New Jersey. Defendant contended the new residence in Alloway is a
thirty-minute drive to E.M.'s school and defendant's prior residence. On school
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days when E.M stayed with defendant, defendant woke E.M. up shortly before
6:00 a.m. and dropped her off at his mother's home so that he could be at work
by 7:00 a.m. Defendant's mother assisted in taking E.M. to school, which starts
at 8:15 a.m., and cared for her after school until defendant gets off work.
The parties appeared before the trial judge for a Zoom hearing on August
24, 2021. Plaintiff argued it was unreasonable for E.M. to awaken that early, as
she was "dragging" as a result of the changed arrangement, and she did not want
overnights with defendant during the week. Defendant, on the other hand,
argued the child enjoyed spending time with him, particularly the overnights.
Plaintiff testified she noticed at the end of the prior school year, shortly
after defendant moved, that her daughter was "just beat," and could not get into
a routine. She also indicated E.M. was being driven to defendant's mother's
home at 5:30 a.m.1 Plaintiff disputed that E.M. got up at 5:55 a.m., and also that
the drive was "much longer" than thirty minutes.
Defendant acknowledged his daughter was initially tired on school
mornings following the move, but then adjusted. Defendant also testified his
1
Testimony also was adduced regarding defendant's living arrangements and
other people living in the home, where he rented rooms. However, the trial court
did not base its decision on those issues and appeared to be satisfied there were
no concerns about the living arrangements at defendant's residence.
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3
daughter liked living with him and the fact there were other children living in
the other part of the house with whom she liked to play.
The trial judge determined defendant's move from Deptford and its
corresponding impact on E.M. constituted a change in circumstances. The court
then addressed parenting time. Specifically, the court noted,
The court will look to adjust the custody parenting time
issue in this case. Not custody, custody is gonna remain
exactly how it is. But -- actually I am gonna change
custody a little bit.
. . . Because the court does have a concern about
the child waking up that early in the morning just to go
to her grandmother's house where she can go to school
from there. . . .
. . . The child is eight years old. While eight
hours of sleep may be good for an adult, younger
children require more sleep than that.
And having more sleep would impact her ability
to do other activities such as dance and softball . . . .
By the time [her activities are done] . . . she
would be looking to go to bed, at the earliest, around
what she's doing now, approximately 9:00 at night.
And the court finds that that's concerning and
mother's concern is justified.
So -- but the court doesn't want to keep parenting
time away from dad. It's just the issue about the
sleeping and making sure the child has enough time to
sleep.
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So the court is gonna modify the parenting time
as follows: . . . the parties are still gonna alternate their
weekends. Dad's parenting time is still gonna be Friday
through Sunday. . . . But what's gonna happen is, the
child on . . . Sunday . . . he's gonna bring back the child
to mom's house, at 7:00.
Mom is gonna have the child overnight [on
Sunday]. . . .
. . . Mr. May will be able to pick up the child and
spend the entirety of the afternoon with the child . . .
on . . . Mondays and Tuesdays after school . . . .
But . . . Mr. May is . . . gonna have to drop the
child off by . . . 8:30 [at plaintiff's home].
....
[E.M.] will stay at mom's house [Monday and
Tuesday] . . . and then mom will be able to spend her
typical Wednesday, Thursday days with the child.
II.
On appeal, defendant contends the court held a "short summary hearing"
and only conducted limited questioning of the parties. In short, there was no
plenary hearing. Defendant further argues the court failed to allow discovery
and did not conduct or consider a child interview. Defendant avers the court
erred by not sending the parties to mediation. Defendant notes the court
modified the equal parenting-time arrangement in the original order and reduced
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his overnights from seven out of fourteen days to just two out of fourteen days.
As a result, plaintiff has become the de facto primary residential custodian.
Defendant reiterates the court's order resulted in a substantial change of
parenting time which fundamentally overhauled the custodial and parenting time
of the parties without a plenary hearing.
In addition, defendant submits he was never provided with a full copy of
the complaint filed by plaintiff before the hearing. 2 Defendant notes the trial
court also failed to address the statutory factors set forth in N.J.S.A. 9:2-4, which
is mandatory in a contested custody case. Kinsella v. Kinsella, 150 N.J. 276,
317 (1997). Defendant further contends the court should have required both
parties to submit their custody and parenting time/visitation plan pursuant to
Rule 5:8-5 because plaintiff sought a change in residential custody. Defendant
also asserts the trial court failed to refer this matter to mediation, which was
required pursuant to Rule 5:8-1, because the application required a request to
change parenting time.
2
Rather, defendant was instructed that if he wanted to receive a copy of the
"original complaint" he had to call the court.
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III.
Our scope of review of Family Part orders is limited. Cesare v. Cesare,
154 N.J. 394, 411 (1998). We accord deference to the family courts due to their
"special jurisdiction and expertise" in the area of family law. Id. at 413. The
court's findings are binding as long as its determinations are "supported by
adequate, substantial, credible evidence." Id. at 411-12 (citing Rova Farms
Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)).
A decision concerning custody or visitation is within the sound discretion
of the judge. See Randazzo v. Randazzo, 184 N.J. 101, 113 (2005). A judge
must consider a request for modification of a custody or visitation order in
accordance with the procedural framework established in Lepis v. Lepis, 83 N.J.
139, 157-59 (1980). To establish a prima facie case for modification of a
visitation arrangement, the moving party must show a substantial change in
circumstances. Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). The
moving party must also demonstrate the changed circumstances affect the
welfare of the child such that his or her best interests would best be served by
modifying the current arrangement. Ibid. In evaluating whether the requisite
changed circumstances exist, the court must consider the circumstances that
existed at the time the current order was entered. Sheehan v. Sheehan, 51 N.J.
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7 Super. 276, 287-88 (App. Div. 1958). After considering those facts, the court
can then "ascertain what motivated the original judgment and determine whether
there has been any change in circumstances." Id. at 288.
A plenary hearing is required when there is "a genuine and substantial
factual dispute" regarding the child's wellbeing. Hand, 391 N.J. Super. at 105.
The need to hold a plenary hearing is particularly compelling where there are
material factual disputes raised by the parties. See K.A.F. v. D.L.M., 437 N.J.
Super. 123, 137 (App. Div. 2014) ("A court, when presented with conflicting
factual averments material to the issues before it, ordinarily may not resolve
those issues without a plenary hearing."). The failure to conduct a plenary
hearing where there are genuine issues of fact in dispute requires reversal and
remand for such a hearing. Id. at 138; see also Faucett v. Vasquez, 411 N.J.
Super. 108, 119 (App. Div. 2009) ("Absent exigent circumstances, changes in
custody should not be ordered without a full plenary hearing.").
Moreover, our Supreme Court in Faucett noted, "The touchstone for all
custody determinations has always been 'the best interest[s] of the child.'" Id. at
118 (quoting Kinsella, 150 N.J. at 317). "Custody issues are resolved using a
best interests analysis that gives weight to the factors set forth in N.J.S.A. 9:2-
4(c)." Hand, 391 N.J. Super. at 105. That statute permits a judge to make "[a]ny
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. . . custody arrangement . . . in the best interests child." N.J.S.A. 9:2-4(c).
Faucett, 411 N.J. Super. at 118. N.J.S.A. 9:2-4(c) requires a judge to evaluate
various factors involving the custody of a minor child. The statute provides:
In making an award of custody, the court shall consider
but not be limited to the following factors: the parents'
ability to agree, communicate and cooperate in matters
relating to the child; the parents' willingness to accept
custody and any history of unwillingness to allow
parenting time not based on substantiated abuse; the
interaction and relationship of the child with [their]
parents and siblings; the history of domestic violence,
if any; the safety of the child and the safety of either
parent from physical abuse by the other parent; the
preference of the child when of sufficient age and
capacity to reason so as to form an intelligent decision;
the needs of the child; the stability of the home
environment offered; the quality and continuity of the
child's education; the fitness of the parents; the
geographical proximity of the parents' homes; the
extent and quality of the time spent with the child prior
to or subsequent to the separation; the parents'
employment responsibilities; and the age and number
of the children.
[Ibid.]
IV.
We recognize non-dissolution matters on the FD docket can be demanding
for Family Part judges, and many FD applications are of a summary nature. See
J.G. v. J.H., 457 N.J. Super. 365, 374 (App. Div. 2019). However, when an
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application involves a contested custody and parenting application, the trial
court must "look past the docket designation to the nature of the dispute." Ibid.
Here, defendant never received any specific information or narrative from
plaintiff with respect to why plaintiff was seeking a change in custody. Rather,
plaintiff only checked two boxes on the FD application form, indicating she
sought to change the existing custody/parenting time order. When asked to
"explain anything the court should know about this application," plaintiff stated,
"See original complaint for narrative." The original complaint, however, is not
part of the record, and defendant submits he never received it. Rather, the form
advised he could call a number to obtain a copy. While defendant should have
called the number in advance of the hearing, the better practice would have been
for the court to have forwarded a copy of the complaint to defendant. As a result,
defendant appeared for the Zoom hearing without knowing plaintiff was seeking
a significant change in the parenting time schedule. While this is no fault of the
trial judge, we are concerned plaintiff was not provided with sufficient notice in
advance of the hearing regarding the precise nature of the application.
While the court took limited testimony from the parents, the hearing was
more in the nature of a summary proceeding. The court simply questioned the
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parents about the dispute. This procedure was similar to what occurred in J.G.,
and did not constitute a plenary hearing.
In J.G., although the parties were represented by counsel, the trial court
conducted the questioning and did so in a summary manner. We noted:
The proceeding that took place did not constitute a
plenary hearing. The motion judge asked the parents
questions, going back and forth between them. He did
not allow Jane's counsel to participate meaningfully in
the proceedings. The parents were not given an
opportunity to exchange discovery, retain an expert
witness, call witnesses, or cross-examine each other.
[ Id. at 373.]
Moreover, as with any contested custody matters, prior to a plenary hearing, "the
parties should have been sent to mediation, Rules 1:40-5 and 5:8-1, and, if they
were unable to resolve the issues, they should have been required to submit a
Custody and Parenting Time/Visitation Plan pursuant to N.J.S.A. 9:2-4(e), Rule
5:8-5(a), and Luedtke v. Shobert, 342 N.J. Super. 202, 218 (App. Div. 2001)."
Id. at 371. Finally, while the court addressed certain issues with respect to the
best interest of the child, the court did not specifically address the factors set
forth in N.J.S.A. 9:2-4. See Bisbing v. Bisbing, 230 N.J. 309, 322 (2017) (citing
N.J.S.A. 9:2-4(f)).
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For the reasons set forth above, we vacate the August 24, 2021 order and
remand this matter for discovery and mediation, which shall take place within
forty-five days of this opinion. We are mindful that E.M. is eight years old and
has been living under the schedule set forth in the August 24, 2021 order the
entire school year. On remand, the trial court shall fashion a temporary
parenting time order until the parties can attend mediation, or a subsequent
plenary hearing, if necessary. If the matter is not resolved at mediation, the
matter shall be scheduled for plenary hearing.
Reversed and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
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