LEE PHILLIPS VS. KIMBERLY YORK(FD-05-0562-11, CAPE MAY COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1149-16T1
LEE PHILLIPS,
Plaintiff-Appellant,
v.
KIMBERLY YORK,
Defendant-Respondent.
_______________________________
Argued October 2, 2017 – Decided November 6, 2017
Before Judges Ostrer, Whipple and Rose.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Cape May
County, Docket No. FD-05-0562-11.
Michael Confusione argued the cause for
appellant (Hegge & Confusione, LLC, attorneys;
Mr. Confusione, of counsel and on the brief).
Respondent has not filed a brief.
PER CURIAM
Plaintiff Lee Phillips and defendant Kimberly York, who were
never married, have a child together born in October 2009. In
2012, the parties entered into a formal custody agreement providing
for joint physical and legal custody of the child.
By order entered June 13, 2016, the Family Court awarded
defendant sole custody, and permitted plaintiff supervised
parenting time, and reasonable telephone contact at defendant's
discretion. Plaintiff's subsequent applications to the trial
court seeking reestablishment of the prior shared custody and
parenting time agreement were denied. Plaintiff appeals from the
trial court's orders.
Following our review of the record and applicable legal
principles, we reverse and remand for a plenary hearing.
I.
We derive the following facts and procedural history from the
record. On May 26, 2016, plaintiff was disoriented and appeared
to be intoxicated at a home improvement store, prompting the
store's staff to contact the police. Having been advised by
plaintiff that his son lived with him, the police contacted the
local school district, obtained the child's emergency contact
information, and spoke with defendant who confirmed plaintiff's
history of prescription drug abuse. On the advice of the police,
defendant contacted the Family Court and filed an order to show
cause ("OTSC") seeking emergency custody.
At the June 13, 2016 return date of the OTSC, plaintiff
acknowledged he was "out of [his] mind" at the home improvement
store, but claimed he was simply dehydrated. Relying primarily
2 A-1149-16T1
on the police report, which indicated possible drug abuse, the
court continued the prior emergency order, and advised plaintiff
it would review the order if plaintiff successfully completed an
inpatient treatment program.
On July 22, 2016, the parties again appeared in court.
Plaintiff presented documentation indicating he had completed a
ten-day drug rehabilitation program, and stated he attends weekly
aftercare with his medical doctor and psychiatrist. Unsatisfied
with the duration of the rehabilitation program, plaintiff's lack
of documentation indicating his present condition and chances of
relapse, and plaintiff's demeanor in court, the court suspended
all parenting time.
In August 2016, plaintiff filed two separate emergent
applications with the trial court seeking modification of the June
13, 2016 order. Plaintiff submitted to the court letters and
records regarding his progress and treatment. By orders entered
on August 24, 2016 and August 26, 2016, the trial court denied
plaintiff's applications. Among other things, the August 24, 2016
order determined nothing had changed since the July 22, 2016 order,
and the August 26, 2016 order found nothing had changed since the
August 24, 2016 order. Both orders incorporated the court's August
3 A-1149-16T1
19, 2016 letter setting forth the reasons plaintiff's applications
were denied.1
On October 4, 2016, plaintiff again filed an OTSC seeking to
modify the July 22, 2016 order. A second trial judge denied
plaintiff's application for failure to demonstrate emergent
circumstances. On October 8, 2016, plaintiff filed another
application seeking modification of the July 22, 2016 order.
On November 15, 2016, the parties appeared before the second
trial judge on plaintiff's application seeking reinstatement of
parenting time and defendant's cross-motion for child support.2
Plaintiff submitted most of the same documentation previously
submitted to the court. However, plaintiff did not submit any
reports attesting to his current treatment and progress. Plaintiff
testified that he attends individual counseling, group sessions
and bi-monthly psychiatric appointments. He also stated at the
time of the underlying incident, he was dehydrated from a
combination of prescription Klonopin and Methadone. Unsatisfied
with plaintiff's demeanor in court, and the lack of documentation
establishing plaintiff was currently treating his addiction, the
1
Plaintiff did not include the court's August 19, 2016 letter in
his appendix. In addition, on or about August 30, 2016, plaintiff
filed an emergent appeal, which we denied.
2
It is unclear from the record whether this hearing pertained to
plaintiff's October 8, 2016 application.
4 A-1149-16T1
trial judge adjourned plaintiff's motion.3 The court indicated
further it would relist the matter on short notice after the
parties submitted "whatever documents they need."
On November 18, 2016, plaintiff filed the present appeal of
the Family Court's October 4, 2016 order, and prior orders dated,
August 26, 2016, August 24, 2016, July 22, 2016, July 13, 2016,
and May 26, 2016 "eliminating visitation" with his son. On
February 23, 2017, plaintiff filed a motion for summary disposition
of his appeal, or in the alternative, emergency relief seeking
visitation pending appeal. On March 27, 2017, we denied the
motion, but temporarily remanded the matter to the trial court to
complete, within sixty days, the hearing commenced on November 15,
2016. The order provided further that the trial court consider
plaintiff's requests for interim relief, including parenting time.
On April 18, 2017, the parties appeared before a third family
court judge.4 The court declined to continue the hearing commenced
on November 15, 2016, observing plaintiff had not submitted the
documentation requested by prior orders, that is, a mental health
assessment, risk assessment and drug evaluation. However, the
3
The court also adjourned defendant's cross-motion.
4
At some point during the November 15, 2016 hearing, the second
judge apparently recused himself from the matter because he was
familiar with an entity owned, in part, by plaintiff.
5 A-1149-16T1
court granted plaintiff up to two hours of parenting time per
week, supervised by a family services agency. The order also
provided that a return date for the matter would be scheduled when
plaintiff submitted the requisite documentation.5
In his instant appeal, plaintiff argues the Family Court
erred in denying his motions for resumed parenting time with his
son, and for doing so without affording him a hearing.
II.
Our scope of review of the Family Part's 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. Investors 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
5
On April 27, 2017, plaintiff filed an emergent appeal, presumably
of the court's April 18, 2017 order, which we denied. Plaintiff
did not include our order in his appendix.
6 A-1149-16T1
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. Super. 276, 287-88 (App.
Div.), certif. denied, 28 N.J. 147 (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.
Moreover, a plenary hearing is required when there is "a
genuine and substantial factual dispute" regarding the child's
wellbeing. Hand, supra, 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
7 A-1149-16T1
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) ("[a]bsent
exigent circumstances, changes in custody should not be ordered
without a full plenary hearing."), certif. denied, 203 N.J. 435
(2010).
Here, initially, there was a basis for the court to
temporarily restrict parenting time on the return date of the
OTSC, pursuant to the May 26, 2016 incident. However, in seeking
a change of custody and visitation, as defendant did here, the
onus was on her to establish at a plenary hearing that the best
interests of the child warranted full suspension of defendant's
parenting time. Instead, all three judges expressed
dissatisfaction with plaintiff's submissions because they were not
conclusive as to his current state of sobriety and mental health
status. Although the submissions were unclear and replete with
hearsay, they raised a material factual dispute that should have
been resolved in a plenary hearing.
Furthermore, as the second trial judge observed:
I think you're placing too much emphasis on
[the first trial judge's] order where he says
that [plaintiff's] . . . recovery from
substance abuse is secure. I think you're
thinking that means a one hundred percent
8 A-1149-16T1
absolute iron-clad guarantee and I don't think
that's what it means. It just means
reasonable. What is reasonable . . . so that
the [c]ourt can make a determination that [the
child] will be safe if there's visitation with
his dad.
We agree with plaintiff that the trial court should have conducted
an evidentiary hearing to determine, among other things, whether
plaintiff "reasonably" recovered from substance abuse such that
modification of the June 13, 2016 order is in the best interests
of the child. Further, a hearing was required to be conducted
as soon as practicable because a "temporary decision to change
custody can take on a life of its own, creating a new status quo.
Nominally temporary orders involving the custody of a child have
a tendency to become permanent . . . ." Peregoy v. Peregoy, 358
N.J. Super. 179, 202-03 (App. Div. 2003).
Accordingly, we must vacate the June 13, 2016 order and again
remand this matter for a custody hearing. To reiterate, defendant
bears the burden to establish a change in circumstances that
warrant a permanent change in the previous custody agreement. At
the conclusion of the hearing, the court shall consider each of
the factors set forth in N.J.S.A. 9:2-4. See V.C. v. M.J.B., 163
N.J. 200, 227-28 ("[c]ustody and visitation issues . . . are to
be determined on a best interests standard giving weight to the
factors set forth in N.J.S.A. 9:2-4"), cert. denied, 531 U.S. 926,
9 A-1149-16T1
121 S. Ct. 302, 148 L. Ed. 2d 243 (2000). In the interim, the
trial court in its discretion may consider plaintiff's request for
more liberal supervised visitation and, in so doing, is free to
impose restrictions on plaintiff, such as random drug testing.
Reversed and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
10 A-1149-16T1