V.P. VS. P.A.P. (FM-18-0606-17, SOMERSET COUNTY AND STATEWIDE) ( 2019 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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-3793-17T2
    V.P.,
    Plaintiff-Appellant,
    v.
    P.A.P.,
    Defendant-Respondent.
    __________________________
    Argued December 19, 2018 – Decided December 13, 2019
    Before Judges Fuentes, Vernoia and Moynihan.
    On appeal from the Superior Court of New Jersey,
    Chancery Division, Family Part, Somerset County,
    Docket No. FM-18-0606-17.
    Andrew M. Shaw argued the cause for appellant (The
    DeTommaso Law Group, LLC, attorneys; Andrew M.
    Shaw, on the briefs).
    Joseph DiRienzo argued the cause for respondent
    (DiRienzo & DiRienzo, PA, attorneys; Joseph
    DiRienzo, on the brief).
    The opinion of the court was delivered by
    FUENTES, P.J.A.D.
    Defendant appeals from a post-judgment order entered by the Chancery
    Division, Family Part that modified the terms of the parenting time arrangement
    the parties agreed to and memorialized in a Marital Settlement Agreement
    (MSA). We reverse and remand for the Family Part to conduct a plenary hearing
    to determine if a change in residential custody and/or modification of the
    existing parenting arrangement is in the best interest of the parties' two teenaged
    daughters.
    I
    Plaintiff V.P. (Victoria) and defendant P.A.P. (Peter) 1 were married in
    October 2003. They had two daughters, K.D.P. (Kadance), who is now sixteen
    years old, and H.A.P. (Heather), who is now thirteen. The parties separated in
    2016. Each party retained private counsel and negotiated the terms of the MSA
    they signed on June 16, 2016. The MSA contains 108 numbered paragraphs that
    comprehensively address and resolve all the issues associated with the
    dissolution of the marriage.
    1
    Pursuant to Rule 1:38-3(d), records of proceedings before the Chancery
    Division, Family Part are confidential. We use pseudonyms to protect the
    privacy of the litigants and preserve the confidentiality of these proceedings.
    2
    A-3793-17T2
    Under Paragraph 7, both parents have "legal custody" of the children and
    must discuss and agree on "all matters relating to the health (including
    psychological and psychiatric) welfare, religious training, education, activities,
    camp, and other issues of similar importance affecting the children . . . [.]" Any
    agreements reached by the parties related to these matters "shall be confirmed
    in writing in an email with the Husband and the Wife expressing their consent
    to the agreement. In the event [they] are unable to agree . . . neither [party]
    shall act unilaterally."
    Before the October 25, 2016 amendments to the MSA, Paragraph 19,
    denoted "Parenting Time Schedules," provided defendant with "regular
    parenting time with the children based on a five[-]week repeating schedule[.]"
    This was illustrated in a graph and was expected to work "for all future years
    and the [defendant] and the [plaintiff] shall work together to agree upon the
    specific dates in the future."
    The parties also provided a self-executing, nonjudgmental remedy to be
    used when a parent, for whatever reason, did not have parenting time with the
    children for more than ten days. Under Paragraph 19 in the original MSA, in
    the event either parent "does not have parenting time with the children for ten
    (10) consecutive days, that parent shall have a right to a midweek dinner from
    5:00 p.m. to 8:00 p.m., with the specific date to be agreed upon."
    3
    A-3793-17T2
    On October 25, 2016, the parties amended the MSA and "replaced" several
    parts of the agreement "in their entirety." Our focus here is limited to the
    amendments that touched upon parenting time.         The amendment replaced
    "Paragraphs 19 and 20 2. . . in their entirety" with a new Paragraph 19 denoted
    "Parenting Time Schedules." Starting on Tuesday July 5, 2016, the amended
    arrangement provided defendant "regular parenting time with the children based
    on a three (3) week repeating cycle, which begins on a Monday and ends with a
    Sunday."
    The amended Paragraph 20 provides a parenting time schedule for
    holidays and special events. The time the children spend with defendant during
    these events "are periods of time that take precedence, but do not break the
    continuity of the parenting [time] schedule set forth" under the amended
    Paragraph 19. This arrangement covers holidays and special events "for 2016,
    2017 and thereafter on a year to year basis." The parties once again included a
    chart to illustrate how they expected this parenting time and holiday/special-
    events schedule would work. The last parenting time item involved vacations.
    2
    Although Paragraph 21 states that "the parenting time set forth in [P]aragraph
    20 above shall take precedence over the regular parenting time set forth in
    [P]aragraph 19," the copy of the MSA provided to us in the appellate record
    does not have a Paragraph 20.
    4
    A-3793-17T2
    Once again, the parties methodically established a comprehensive protocol
    designed to manage this aspect of the children's interactions with a parent.
    On November 14, 2017, the Family Part entered a Dual Final Judgment of
    Divorce (JOD) formally dissolving the marriage and expressly incorporating the
    amended MSA as part of the court's decree. On March 27, 2018, less than five
    months after the court issued the JOD, defendant filed a notice of Motion to
    Enforce Litigant's Rights seeking seventeen specifically enumerated items of
    relief that would materially alter, if not outright eradicate, the carefully
    negotiated provisions in the MSA related to the children's residential custody
    and parenting time. For example, defendant sought an order from the court: (1)
    "immediately" awarding him residential custody of the children pending a
    plenary hearing; (2) restricting plaintiff's contact with the children to "a
    supervised setting," until otherwise ordered by the court; (3) directing
    "[p]laintiff to undergo a psychiatric evaluation"; and (4) requiring plaintiff's
    adherence to "any recommendations" made by the psychiatrist, and
    "cooperat[ion] with a custody evaluation."
    Defendant's remaining prayers for relief involved the imposition of some
    form of sanction against plaintiff based on her alleged violations of the MSA.
    In support of this extraordinary application, defendant averred plaintiff
    "deliberately" engaged in conduct designed to alienate the children's affections
    5
    A-3793-17T2
    for him; she attempted to thwart his "ability to attend events, meetings, and
    medical appointments for the children" and "unilaterally" scheduled his younger
    daughter "in a new full-year competitive cheer program . . . that dramatically
    interfered with [his] parenting time. . . [.]" Defendant also claimed plaintiff
    refused to take the children to Hebrew School or follow a physician's alleged
    "therapeutic recommendations[.]"
    In the event the court were to deny his request to transfer residential
    custody of the children to him immediately, defendant requested he be awarded
    "make-up parenting time to begin immediately and continue until all make-up
    overnights have occurred[.]" Defendant petitioned the court to sanction plaintiff
    $1000 "per day for each day she fails to produce the children for parenting time"
    and for each therapeutic session missed by the children. Finally, defendant
    asked the judge to interview the children directly. If this interview reveals the
    children have "knowledge of this litigation," the judge should order that
    plaintiff's contact with the children be "supervised at all times."
    In support of this motion, defendant submitted a certification replete with
    accounts of plaintiff's alleged misconduct with the children. Most of defendant's
    allegations of plaintiff's misconduct predate the November 14, 2017 JOD. 3 The
    3
    We also note that the law firm that filed this motion on defendant's behalf is
    the same firm that represented defendant in the matrimonial proceedings.
    6
    A-3793-17T2
    few accounts of plaintiff's alleged misbehavior, which occurred after the
    November 14, 2017 JOD, can be characterized as minor or petty. For example,
    defendant averred that plaintiff:
    encouraged the children to alienate [his] side of the
    family, as well.     To make a long story short,
    [Kadance's] Bat Mitzvah was a nightmare. Plaintiff had
    [Kadance] "un[-]invite" me and my family to her party.
    Ultimately, I was re-invited but was limited to only a
    handful of guests. When I gave [p]laintiff my list of 25
    people from my side of the family, she responded that
    they already had 68 invites and the venue was for 70.
    Defendant did not seek emergent relief from the Family Part in his Notice
    of Motion to Enforce Litigant's Rights dated March 27, 2018. In fact, the motion
    indicated a return date of April 20, 2018.
    II
    On April 1, 2018, defendant filed an Order to Show Cause (OTSC)
    substantially seeking the same relief he sought in the March 27, 2018 motion.
    Defendant and his attorney appeared before the Family Part on April 2, 2018 for
    a hearing on the OTSC. Neither plaintiff nor her attorney were present at this
    hearing. As the following interactions show, the judge initially treated this
    matter as an ex parte application.
    THE COURT: All right. This is . . . defendant's Order
    to Show Cause. And he has submitted in . . . support of
    that a Letter Brief with a Certification consisting of 15
    pages, 31 paragraphs, with a number of different
    7
    A-3793-17T2
    attachments. Apparently this is an ongoing problem
    that [plaintiff] . . . is not allowing him access to the two
    children, [Kadance], age 13, and [Heather], age 11. It
    has been going on for some time. There was . . . another
    appearance . . . just about a year ago it flared up.
    THE COURT: Tell me, . . . [addressing defendant] in
    your own words, what has happened in the last year.
    ....
    How . . . often have you seen your children?
    DEFENDANT: Well, . . . in the last - - I guess, it's
    almost about three months, I - - the only time I've had
    them would be on two separate occasions. I had dinner
    with them at a public restaurant. That was [plaintiff's]
    insistence. And she sat in the parking lot and waited
    for them. So it was like an hour.
    . . . I'm supposed to get them, pretty much, two
    weekends out of three from - -
    THE COURT: There's no . . . requirement for any
    supervised visitation. Is that . . . correct?
    ....
    DEFENSE COUNSEL: No, sir. No, Your Honor.
    At this point in the proceeding, the court clerk informed the judge that
    plaintiff's counsel had contacted the court and asked to participate
    telephonically. In the colloquy that ensued telephonically, plaintiff's counsel
    alleged she only received part of defendant's OTSC late in the evening of the
    previous day. Defendant's counsel refuted these allegations.
    8
    A-3793-17T2
    Despite the disputed accounts related to service of process, the judge
    ultimately found the relief sought in the OTSC were "essentially the same" relief
    defendant sought in the motion filed on March 27, 2018. At this point, the judge
    told plaintiff's counsel that prior to her telephonic appearance, defendant
    testified under oath that "he has not been getting his children." The judge then
    addressed defendant directly as follows:
    THE COURT: I want specifics as to what dates you
    were supposed to get them and - - and when was the last
    time you saw them. You started to tell me about a – a
    restaurant. Is that correct?
    DEFENDANT: Yes, Your Honor.
    THE COURT: When was . . . the last time you had
    dinner with them?
    DEFENDANT: Well, I had dinner with them last Friday
    at Buffalo Wild Wings. This - - this last Friday.
    THE COURT: All right. And when were you supposed
    to have them for the weekends?
    DEFENDANT: Well, this weekend is a little bit of an –
    DEFENSE COUNSEL: Go back to January.
    DEFENDANT: Yeah. I - - I mean, if - - if I go all the -
    - basically, the - - the schedule is as defined in the - - in
    the MSA.
    ....
    Two - - two weekends out of three.
    9
    A-3793-17T2
    ....
    THE COURT: Okay. How many have you gotten since
    January 1st?
    DEFENDANT: [S]ince January - - I - - going from
    January 20th onward, I haven’t had any.
    Defendant also testified that he did not see his daughters on President's
    Day weekend and other days specifically identified in the MSA. According to
    defendant, he had missed thirty-six parenting time days since January 20, 2018.
    In response to the judge's question, defendant provided the following
    explanation in support of his claim:
    I had pleaded with my ex-wife on numerous occasions.
    And she basically has refused to even - - directly even
    address me. She puts the two girls on the - - she has
    them contact me and say we're not coming. This . . .
    happened over and over again, and at which point I said,
    that - - that can't - - that's obviously more hurtful than
    anything else. So going forward I said, don’t do that.
    That’s obviously not a good way to handle this, my two
    - - you know, 11 and 13 year old daughters telling me
    that they don’t have to come if they don’t want to. So
    . . . thereafter I would send her e-mails. I'd try to call
    her. She won't answer the phone.
    I actually had gone to the police. The police called her
    on a number of occasions[.] [S]he doesn’t answer the
    phone in some circumstances when the police call her.
    And I send her e-mails . . . a lot of times she doesn’t
    answer. When she does answer she says, the kids don’t
    want to come. It's your problem to solve. You . . .
    better figure something out. And she sent me . . . a
    10
    A-3793-17T2
    picture of a book on good parenting, all that kind of
    stuff. That . . . [is] her answer.
    Defense counsel cited to a statement made by the judge who presided over
    the matrimonial litigation which cautioned the parties that "kids don’t make the
    decisions[.]" According to defendant's counsel, "things got back on track
    immediately following the hearing. He was able to see his children." Defense
    counsel also apprised the judge that previous attempts to address the problem
    through mediation proved to be ineffectual. A Consent Order dated June 2, 2017
    memorialized the parties' agreement:
    The parties agree that they will immediately commence
    co-parenting counseling and family therapy with Dr.
    Timothy Hamway. The parties agree that they will both
    participate in co-parenting counseling and family
    therapy with Dr. Hamway and that both of their
    children will also participate in family therapy. The
    parties shall follow Dr. Hamway's recommendation and
    protocol as to the participants for each session, the
    frequency/duration of the sessions, etc.
    The parties agree that they will abide by the reasonable
    recommendations of Dr. Hamway. They also agree that
    Dr. Hamway shall be authorized to communicate with
    the children's therapists. The parties further agree that
    they both expressly authorize Dr. Hamway to report to
    and communicate to the [c]ourt upon request of either
    party or their counsel.
    Despite these efforts, defense counsel claimed: "We're literally in the
    same place at the same time as we were last year. Only now the harm is so much
    11
    A-3793-17T2
    more. Last year, I think he lost 24 days of parenting time. Now we’re talking
    about 36."
    Plaintiff's counsel prefaced her response by noting that she did not
    represent plaintiff the previous year. She also noted that the remarks defense
    counsel attributed to a previous judge, ("kids don’t make the decisions"), were
    made in the context of a motion hearing in which no testimony was taken. That
    judge appointed the therapist who remains involved with the family. According
    to plaintiff's counsel, the steps her client took with respect to the children were
    in accordance with the therapist's recommendations. According to plaintiff's
    counsel, the parties were scheduled to attend a therapy session with the therapist
    that night.
    Plaintiff's counsel characterized the situation with the children as the
    symptoms of "a deteriorated relationship between dad and these girls." She
    apprised the court that plaintiff intended to file a cross-motion "seeking much
    of the same relief that [defendant] seeks. Maybe we need experts. Maybe we
    need a custody evaluation. I'm sure everybody loathes that. There's an issue
    here that needs to be solved. Nobody is disputing that." Plaintiff's counsel thus
    asked the judge to afford her the opportunity to respond to defendant's
    allegations in writing to provide the court with a balanced presentation of the
    facts.
    12
    A-3793-17T2
    The judge made the following comments at the conclusion of the hearing:
    THE COURT: Well, here's what I see. I see a Court
    Order not being followed. Dr. Hamway is not going to
    tell me what . . . to do with . . . an Order. They can
    make -- a doctor can make a recommendation. Your
    client is –
    PLAINTIFF'S COUNSEL: Sure.
    THE COURT: -- not going to tell me, nor is
    [defendant]. All right. This is what I'm ordering. And
    I'm very, very -- you can tell your client I'm very close
    to changing custody. This cannot go on.
    ....
    . . . I want everybody here at 8:30 tomorrow morning.
    I don't want any excuses. I don't want to hear about trial
    schedules or anything else. I'm going to make a
    decision on this tomorrow. We may change custody. I
    don't know if I'm going to do that or not. I have to see
    what's in the best interest of the children. But we're not
    going to have another year of somebody violating Court
    Orders. It's as simple as that.
    The court reconvened the following day.         The parties were the only
    witnesses; they were sworn in at the commencement of the hearing.              The
    transcript of the April 3, 2018 hearing shows the judge questioned the parties in
    a haphazard fashion, going back and forth between them.              The lawyers
    intervened at will in this "conversational" format and supplemented or rephrased
    their client's testimony. The judge acquiesced to these irregularities and actively
    encouraged this approach. The following exchange illustrates the problem:
    13
    A-3793-17T2
    DEFENSE COUNSEL: Okay. Telephone contact. Just
    kind of goes to his lack of -- of contact with the
    children. Mom doesn't facilitate any telephone contact.
    He calls -- and this is, again, certified to in his
    Certification. He calls and texts them and doesn't get
    returned calls.
    THE COURT: Do they -- the girls have cell phones?
    PLAINTIFF: Yes.
    DEFENDANT: Yes. I got –
    DEFENSE COUNSEL: Yes.
    DEFENDANT: I paid for them.
    THE COURT: Who do you text[?]
    DEFENDANT: Both - - both daughters.
    THE COURT: And they've not [returned] your texts?
    DEFENDANT: Usually not.
    THE COURT: Do they return your phone calls?
    DEFENDANT: No. Almost never.
    THE COURT: Yesterday there [was] testimony . . . the
    last visit you had with your children was when? . . .
    DEFENDANT: Last Friday I . . . took them to dinner,
    Buffalo Wild Wings, for an hour.
    THE COURT: Where?
    (Attorney Confers with Client)
    14
    A-3793-17T2
    DEFENDANT: [I]'m sorry. [Plaintiff] took them and
    waited in the parking lot, I think.
    PLAINTIFF: No.
    Plaintiff's counsel argued that "[t]his isn't a case of physical abuse. It's a
    case of allegations of emotional issues[.]" According to plaintiff's counsel, Dr.
    Hamway was not willing to participate in court proceedings or offer an opinion
    on how the court should decide the custody issue. The record shows the judge
    was sympathetic to plaintiff's counsel position and expressed his frustration with
    Dr. Hamway's unwillingness to provide the court with his opinion on this
    contentious matter.
    THE COURT: I'm particularly bothered by the fact that
    we're getting second and third-hand snippets of Dr.
    Hamway. There are no Medical Reports. There's no
    Counseling Reports, no Psychology Reports, no School
    Reports. There's nothing that . . . tells me . . . that
    explains why the Court Order is not being followed.
    At this point, plaintiff's counsel asked the judge to interview the children
    directly. The judge did not respond to plaintiff's counsel request or otherwise
    address this issue. The judge made clear, however, that he was prepared to
    enforce the parenting time approved by the court in the amended MSA and
    memorialized in the Consent Order "[b]ecause no 14 year old and no 12 year old
    [sic] . . . are going to drive this bus." At the conclusion of this hearing, the judge
    made the following statement:
    15
    A-3793-17T2
    These . . . are very difficult matters because it's difficult
    to raise children. And it's particularly difficult for
    divorced parents to raise children. And there's a fine
    line between alienation . . . by the parent of primary
    residence and children not just wanting to move from
    place to place and perhaps not be with their father.
    We're going to come up with some resolution today.
    Okay. Their relief is going to be granted.
    At this point, the judge reviewed the public policy and statutory standards
    codified in N.J.S.A. 9:2-4, and addressed the parties as follows:
    [T]he [L]egislature, when they came up with this
    enactment, which really follows hundreds of years of
    common law of religious tradition, of general morals
    and ethics in the communities over the years, did not
    talk about cheer, 4 did not talk about after school
    activities. Their obligation, these children, is to follow
    the Court Order.
    If they lock themselves in their room, they lock
    themselves in their room. They do that at home.
    Children at home do that all over the world every day.
    They don't want to see a parent, they don't [want] to talk
    to a parent, they lock themselves in their room. That's
    simple when the parents are on the same page. You tell
    them, get out of the room, or you take away the phone,
    or they don't go to cheer, or you do something as a
    parent to discipline the children to make sure that they
    obey you.
    They can . . . [defendant], I'm not going to drag them
    out of the room. If they go to your house three days in
    4
    The judge's comment about "cheer" relates to a part of plaintiff's testimony in
    which she explained that the older girl was actively involved in cheerleading at
    school. The team participates in competitive activities on weekends, which at
    times conflict with her attendance in Hebrew School.
    16
    A-3793-17T2
    a row and they stay in their room with no cell phone,
    no TV, no music, that's their business. My guess is that
    at some point in time they'll come down to a -- to a
    communal area where they can use a phone, where they
    can watch TV, where they can listen to music, and have
    their friends over. It's just my guess. I don't know your
    children.5
    The judge ordered the parties and their counsel to confer in a nearby room
    and develop a mutually acceptable schedule that would gradually require the
    girls to have overnight parenting time with defendant. The judge also ordered
    the attorneys to call him on a weekly basis to report how the reconfigured
    parenting time plan was working. The judge characterized this as akin to a
    "status conference call." He also made clear the goal was for defendant to have
    the girls overnight "within ten days" and "a full weekend" within twenty days.
    Plaintiff's counsel also apprised the judge that the parties had agreed to
    retain a parenting coordinator with "binding authority pending any application
    before [the court]." This agreement would be implemented within ten days.
    Heather, the youngest daughter, would attend Hebrew School on Sundays.
    5
    The judge also cited to Beck v. Beck, 
    86 N.J. 480
    , 499 (1981), in which the
    Supreme Court held that when recalcitrant parents act in a manner that "deprive
    the child of the kind of relationship with the other parent that is deemed to be in
    the child's best interests, removing the child from the custody of the
    uncooperative parent may well be appropriate as a remedy of last resort."
    17
    A-3793-17T2
    Kadance would continue to attend "confirmation academy 6 through [the] current
    session. And then the parties [would] reevaluate whether or not she's going to
    continue in the future." The parties also sought guidance from the judge on how
    to sanction the children if they were unwilling to cooperate with this modified
    parenting time arrangement. Defendant's counsel suggested the removal of their
    cellphones but expressed concern that the children would blame defendant.
    The record shows the judge wanted to make clear to the children that these
    custodial arrangements were ordered by the court and would be enforced by the
    court.
    THE COURT: Okay. These kids want to blame
    somebody, they can come in here. And I'll -- and they'll
    hear me and I'll hear them.
    DEFENSE COUNSEL: Okay. But we also -- I guess
    what we were asking -- and I think the parties wanted
    to hear from Your Honor, if you had any further
    suggestions. Because the problem has been that the
    kids don't want to go to parenting time for whatever
    reason. So -- you know, [plaintiff], I think, is
    concerned. How do I get these kids to comply? And
    beyond the cell phone thing, I don't really know what
    else to do . . . to convince these kids –
    ....
    THE COURT: I want this . . . provision in the [Consent]
    Order. The children are directed to comply with this
    6
    As explained by the parties, confirmation academy is an aspect of Hebrew
    School.
    18
    A-3793-17T2
    Order. They will be subject to sanctions if they do not
    comply. Including loss of cell phone privileges, loss of
    internet privileges, loss of social media, loss of
    extracurricular activities, loss of travel.
    DEFENSE COUNSEL: Okay. Thank you, Your Honor.
    THE COURT: And I want the parents -- and -- you
    know, I can't -- I'm not there. I don't know how you're
    going to spin it to them. But I want them to realize this
    is . . . not coming from [defendant] or [plaintiff], this is
    coming from me. And I want direction in there at the
    [c]ourt's . . . own direction7 that that is what I'm going
    to order.
    The parties and counsel conferred as ordered and worked out a modified
    parenting time schedule that sketched out the material parts of the agreement in
    five handwritten pages. Plaintiff's counsel also described the details of the
    arrangement on the record. This modified agreement required the parents to
    attend a therapy session with Dr. Hamway "where they're both going to air out
    any of their disputes that they may have or their misunderstandings from Dr.
    Hamway. So Dr. Hamway can tell both of the parties together what his
    anticipation is for the ongoing sessions."
    The parties did not submit a formal typewritten, fully executed consent
    order to the court. On April 4, 2018, the day following the hearing that produced
    7
    Although the transcript reflects "direction," we believe the judge intended to
    say "discretion."
    19
    A-3793-17T2
    the handwritten parenting agreement, the court issued a sua sponte order
    directing the parties to appear on April 25, 2018 for a hearing. The caption of
    the order stated: "Failure to Submit Consent Order."
    The parties did not appear before the judge on April 25, 2018 as ordered.
    Instead, the judge conducted an off-the-record telephone conference with
    defendant's counsel and plaintiff's recently retained substitute counsel. At the
    end of this impromptu telephone conference, the judge summarized on the
    record the discussions he had with counsel. A transcript dated April 25, 2018,
    contains the following prefatory comments from the judge:
    Neither the parties, nor their attorneys, are here. This
    morning at about 8:30, I had a conference call which
    lasted about 15 or 20 minutes with [defendant's counsel
    and the attorneys] representing . . . plaintiff. That call
    was not on the record. I told the parties that I would be
    putting certain findings and a recap of the call on the
    record this morning. They could order that if they
    wanted.
    ....
    This is . . . essentially, a case where the defendant is
    alleging that the plaintiff has alienated the children
    against him.
    According to the judge, plaintiff's substitute counsel suggested the court
    appoint Dr. Hamway as the "Reunification Therapist" because he was familiar
    with the parties' travail. The judge advised the attorneys that he was not willing
    20
    A-3793-17T2
    to take this action without: (1) hearing directly from Dr. Hamway; and (2)
    determining who was responsible for violating the agreement that was placed on
    the record on April 2, 2018.
    Instead, in an order dated April 27, 2018, the judge appointed Dr. Marcy
    Pasternak "as the reunification therapist in this matter" and held the parties
    equally responsible for the cost of the reunification therapy, "without prejudice
    and subject to allocation." The judge also prohibited the attorneys from sending
    Dr. Pasternak "any correspondence, reports, notes or other documents . . . unless
    she requests the information."       The judge ordered Dr. Hamway and Dr.
    Pasternak "to cooperate with one another," but made clear that the therapy
    reunification sessions with Dr. Pasternak had priority over "athletics, social
    functions, parenting time, and extracurricular activities." He also made plaintiff
    responsible for bringing the girls to the therapy sessions and prohibited the
    parents from texting or calling the girls "during reunification sessions." The
    judge specifically ordered plaintiff "not [to] wait outside during the reunification
    sessions."
    The judge appointed attorney Amy Shimalla as Parenting Coordinator and
    made the parties equally responsible for the cost of Shimalla's services, "without
    prejudice and subject to allocation." The judge ordered Shimalla to prepare and
    submit for his review an order appointing her Parenting Coordinator by May 2,
    21
    A-3793-17T2
    2018 and directed the parties to sign Shimalla's retainer agreement by May 9,
    2018. The judge directed that "[a]ll previous orders shall continue in full force
    and effect except to the extent modified by this Order." Finally, the judge made
    clear that the April 27, 2018 order "addresses the issues which were the subject
    of the consent order."
    In the Statement of Reasons in support of his decision to enter this sua
    sponte order, the judge explained that he imposed this arrangement based on
    certain admissions made by plaintiff's counsel during the April 25, 2018
    telephone conference. Specifically:
    The plaintiff, through counsel, does not deny the
    allegation that she travelled to the Kalahari Resort at
    the time [defendant] took his daughters to that resort.
    She admits, through her attorneys, that she exchanged
    over 160 text messages with their daughter [Heather]
    during the Kalahari trip.
    Based on these alleged off-the-record admissions by plaintiff's counsel,
    the judge concluded:
    It is clear that the plaintiff is interfering with the
    defendant's efforts to have a meaningful relationship
    going forward. She apparently discharged her last
    attorney shortly after the plaintiff and her prior counsel
    consented to an increase in parenting time. Due to the
    plaintiff's actions, the matter is presently scheduled for
    a dismissal of the defendant's motion because the
    parties failed to submit the consent order.
    22
    A-3793-17T2
    The judge concluded his Statement of Reasons with the following
    admonition: "The plaintiff needs clearer direction and must understand that
    there will be consequences for continued interference. She is put on notice that
    sanctions will be imposed if she fails to abide by Court Orders."
    Plaintiff filed her Notice of Appeal from the April 27, 2018 order that
    same day. Defendant filed a second OTSC before the same Family Part judge
    on May 1, 2018, seeking nearly the identical relief he sought in the first OTSC,
    namely: (1) immediate transfer of residential custody of the two teenage girls;
    (2) supervised communication when plaintiff contacts the girls; (3) an order for
    plaintiff to submit to psychiatric evaluation; (4) directing plaintiff to cooperate
    with a custody evaluation; (5) holding plaintiff in violation of litigant's rights on
    a variety of grounds; and (6) a variety of sanctions, including awarding
    defendant counsel fees.
    On May 4, 2018, plaintiff filed her opposition to the OTSC. The parties
    and their counsel appeared before the judge that same day. Defendant's counsel
    argued that her client merely sought the enforcement of the relief already
    awarded by the court, specifically: (1) the agreement reached on April 3, 2018;
    (2) the court's sua sponte April 27, 2018 order; and (3) the relevant provisions
    of the MSA. In response, the judge summarized the case's procedural saga and
    23
    A-3793-17T2
    asked the attorneys whether the Family Part had jurisdiction to adjudicate
    defendant's second OTSC pursuant to Rule 2:9-1(a) and Rule 5:3-7.
    At the judge's request, the attorneys stated for the record that on April 3,
    2018, the parties reached an agreement to modify the parenting time schedule
    reflected in the MSA. However, plaintiff's new counsel specifically quoted a
    part of the April 3, 2018 transcript in which the judge ordered the parties "to
    have within 10 days one overnight [visit and] . . . to work out weekly visits and
    Dr. Hamway." The judge directed the parties to sign a draft order by the end of
    the day. The judge found the parties did not submit the signed order as directed.
    Consequently, the judge held "there is no April 3rd, 2010, order. And I am not
    finding the plaintiff in violation of any court order of April 3rd, 2010 . (sic)."
    Against this backdrop, the judge made the following findings:
    THE COURT: [T]here are two different documents that
    I find are the current order in this matter.
    PLAINTIFF'S COUNSEL: Your Honor.
    THE COURT: Yes.
    PLAINTIFF'S COUNSEL: So I believe from a
    technical perspective, the most recent order entered is
    the judgment of divorce, it is dated November 14th,
    2017. And that's prior to the April 27th order. That
    document incorporated three preexisting documents,
    the MSA, the amendment to the MSA, and the June 2nd,
    2017, consent order.
    24
    A-3793-17T2
    THE COURT: Right.
    PLAINTIFF'S COUNSEL: But the most recent order is
    the judgment of divorce, incorporating the three prior
    documents.
    THE COURT: Okay. Do you agree with that,
    [addressing defendant's counsel]?
    DEFENDANT'S COUNSEL: I do, Your Honor.
    Ultimately, the judge denied without prejudice defendant's OTSC dated
    May 2, 2018, and found the version of the MSA dated June 6, 2016 remained in
    full force and effect and is subject to enforcement pursuant to Rule 1:10-3 and
    Rule 5:3-7.
    IV
    In this appeal, plaintiff argues the Family Part's April 27, 2018 order must
    be vacated because: (1) the judge proceeded in this case in a manner that denied
    plaintiff the right to procedural due process; (2) the judge made material
    modifications to the carefully crafted parenting time arrangement the parties
    negotiated and agreed to in the MSA without making any findings that these
    changes were in the best interest of the children; and (3) the judge abused his
    discretionary authority by failing to afford the two teenaged girls most affected
    by these changes with the opportunity to have their points of view considered in
    the manner provided by Rule 5:8-6. We agree and reverse.
    25
    A-3793-17T2
    We start our analysis by addressing plaintiff's criticism of the manner the
    Family Part judge managed and ultimately disposed of this case. "'Trial judges
    are given wide discretion in exercising control over their courtrooms' and have
    'the ultimate responsibility of conducting adjudicative proceedings in a manner
    that complies with required formality in the taking of evidence and the rendering
    of findings.'" N.J. Div. of Child Prot. & Permanency v. A.B., 
    231 N.J. 354
    , 366
    (2017) (quoting Div. of Youth & Family Servs. v. J.Y., 
    352 N.J. Super. 245
    , 264
    (App. Div. 2002)). Here, the record shows the judge interacted with both the
    attorneys and the parties they represented in an informal manner that "ultimately
    undermined the solemnity and decorum necessary for effective courtroom
    management." D.A. v. R.C., 
    438 N.J. Super. 431
    , 461 (App. Div. 2014).
    This informality began with defendant's April 1, 2018 OTSC, and
    consistently tainted the proceedings. The judge permitted defendant to provide
    ex parte testimony predicated on the same allegations of impropriety defendant
    raised in his Motion to Enforce Litigant's Rights filed on March 27, 2018. The
    judge questioned defendant ex parte on the substance of his allegations against
    plaintiff without making a threshold finding that: (1) defendant's relief was
    necessary to prevent irreparable harm; (2) his legal rights underlying the
    allegations were settled; (3) defendant had a reasonable probability of ultimate
    success on the merits; and (4) the relative hardship to the parties in granting or
    26
    A-3793-17T2
    denying relief favored granting defendant's application. Crowe v. De Gioia, 
    90 N.J. 126
    , 132-34 (1982).
    Despite this analytical void, the record shows the judge continued this line
    of inquiry with defendant until his court clerk informed him that plaintiff's
    counsel had contacted the court and requested to participate telephonically in
    this hearing. The judge's colloquy with counsel revealed the parties' tumultuous
    relationship with their children that included the parenting time arrangement the
    parties negotiated in the MSA and the matrimonial judge sanctioned and
    incorporated into the JOD.     The record also shows that plaintiff's counsel
    repeatedly asked the judge for an opportunity to formally respond to defendant's
    allegations to provide the court with a balanced account of the events that led to
    this OTSC.
    The judge rejected plaintiff's reasonable request and ordered the parties
    and their attorneys to appear before him at 8:30 a.m. the following day, April 3,
    2018. The judge's recalcitrance in this respect served only to exacerbate an
    already chaotic situation. This unstructured approach lacked the decorum and
    solemnity necessary to conduct a valid adjudicative proceeding. The judge's
    impromptu decision to require the parties and their counsel to come up with a
    plan to compel the girls to spend time with their father, as provided under the
    MSA, proved to be equally ineffective. The tentative agreement the attorneys
    27
    A-3793-17T2
    outlined in a handwritten, multi-page document, which the parties signed that
    day, was never implemented.
    In the course of the April 3, 2018 hearing, the judge emphasized that "no
    14 year old and no 12 year old . . . are going to drive this bus." Judges are not
    omnipotent. Children, especially adolescents going through this family crisis,
    have a will of their own. The futility of the extra-judicial, ad hoc approach the
    judge employed here to compel these two teenage girls to spend time with their
    father exemplifies our limitations as jurists.
    The judge's failure to respond or even acknowledge plaintiff's counsel's
    request that he interview the children and defendant's request to transfer the
    custody of the children to him constituted reversible error. Rule 5:8-6 provides,
    in relevant part:
    Where the court finds that the custody of children is a
    genuine and substantial issue . . . the court may on its
    own motion or at the request of a litigant conduct an in
    camera interview with the child(ren). In the absence of
    good cause, the decision to conduct an interview shall
    be made before trial. If the court elects not to conduct
    an interview, it shall place its reasons on the record.
    As this court made clear in D.A., among the factors the Legislature
    required a court to consider when making an award of custody is "the preference
    of the child when of sufficient age and capacity to reason so as to form an
    intelligent 
    decision[.]" 438 N.J. Super. at 458
    (quoting N.J.S.A. 9:2-4(c))
    28
    A-3793-17T2
    (emphasis omitted). The judge did not comply with the requirements of Rule
    5:8-6 by not responding directly to plaintiff's counsel's request for the court t o
    interview the children.    The judge also violated N.J.S.A. 9:2-4(c) by not
    considering the children's views at a time when both girls were "of sufficient
    age and capacity to reason so as to form an intelligent decision." The judge
    erred by failing to consider, as required by N.J.S.A. 9:2-4(c), the children's
    views at the time when both were "of sufficient age and capacity to reason so as
    to form an intelligent decision."
    We are equally troubled by the breadth and scope of the April 27, 2018
    order, which requires the parties to retain a parenting coordinator and a
    reunification therapist without any input from the attorneys representing the
    parents. We thus vacate the April 27, 2018 order and remand the matter to the
    Family Part for the court to conduct a plenary hearing in which he shall consider
    the relevant statutory and regulatory standards to determine whether a change in
    residential custody is in the best interest of the children. The court may expand
    the scope of the hearing to address any issues affecting the parenting time of a
    parent.
    The judge shall apply the standard in Rule 5:8-6 to determine if
    interviewing these two teenaged girls is in their best interest.
    29
    A-3793-17T2
    If the judge elects to interview [the children], (as the
    prevailing circumstances here strongly indicate he
    should), Rule 5:8-6 mandates the court to: (1) conduct
    an interview with the child in camera; (2) "afford
    counsel the opportunity to submit questions for the
    court's use during the interview"; (3) "place on the
    record its reasons for not asking any question thus
    submitted"; (4) create and preserve a stenographic or
    recorded audio record of each interview in its entirety;
    and (5) provide transcripts of the interview(s) to
    counsel and the parties upon request and payment for
    the cost.
    
    [D.A., 438 N.J. Super. at 459
    (internal citation
    omitted).]
    Finally, plaintiff has requested that we remand this case to another judge.
    Pursuant to Rule 1:12-1(g), a judge is disqualified from presiding of a case
    "when there is any . . . reason which might preclude a fair and unbiased hearing
    and judgment, or which might reasonably lead counsel or the parties to believe
    so." Our Supreme Court has adopted the following standard to assess whether
    a judge's personal behavior creates an appearance of impropriety: "Would an
    individual who observes the judge's personal conduct have a reasonable basis to
    doubt the judge's integrity and impartiality?" In re Reddin, 
    221 N.J. 221
    , 223
    (2015).
    Here, in the course of these proceedings, the judge made a number of
    statements   that   touched   upon    plaintiff's   credibility   based   only    on
    unsubstantiated allegations made by defendant in his certifications.         Under
    30
    A-3793-17T2
    these circumstances, we are satisfied that a person in plaintiff's position would
    have a reasonable basis to doubt the judge's impartiality. In reaching this
    conclusion, we do not in any way intent to impugn the judge's integrity or imply
    the judge violated any of the canons of judicial conduct. As we made clear in
    P.M. v. N.P.:
    Given this exalted place marriage as an institution
    occupies in our society, litigants embroiled in the legal
    dissolution of their union are often emotionally
    traumatized. They bring to these legal proceedings a
    deep sense of disappointment and an element of distrust
    that is rooted in the nature of the dissolution itself. Our
    Supreme Court has consistently recognized that judges
    who sit in the Family Part have a great sensitivity to
    these concerns and bring a high level of expertise to
    these emotionally fragile matters. See N.J. Div. of
    Youth & Family Servs. v. R.G., 
    217 N.J. 527
    , 553
    (2014) (citing Cesare v. Cesare, 
    154 N.J. 394
    , 412-13
    (1998)). We thus expect our colleagues who sit in this
    legally difficult and emotionally demanding Part of the
    Chancery Division to be especially mindful of the
    challenges associated with this assignment.
    [
    441 N.J. Super. 127
    , 147 (App. Div. 2015).]
    On remand, the Presiding Judge of the Family Part of this vicinage shall
    reassign this matter to another judge.
    Reversed and remanded. We do not retain jurisdiction.
    31
    A-3793-17T2
    

Document Info

Docket Number: A-3793-17T2

Filed Date: 12/13/2019

Precedential Status: Non-Precedential

Modified Date: 12/13/2019