STATE OF NEW JERSEY VS. NICHOLAS M. IVES(13-02-0154, CUMBERLAND 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NOT FOR PUBLICATION WITHOUT THE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-4052-14T3
DERRICK SMITH,
Plaintiff-Respondent,
v.
CLARIBEL ALVERIO,
Defendant-Appellant.
______________________________
Submitted December 6, 2016 – Decided March 9, 2017
Before Judges Koblitz and Sumners.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Mercer County,
Docket No. FD-11-960-14.
Key Law Center, LLC, attorneys for appellant
(Danielle Joseph Key, on the brief).
Oswald & Zoschak, P.C., attorneys for
respondent (Jennifer Zoschak, on the brief).
PER CURIAM
Defendant Claribel Alverio appeals from the March 23, 2015
order denying reconsideration of a July 18, 2014 order granting
plaintiff Derrick Smith shared residential custody of their then
eleven-month-old daughter. For the reasons that follow, we reverse
and remand.
On May 27, 2014, the parties appeared before the Family Part
to address plaintiff's application for parenting time and shared
custody. Initially, the court was unsuccessful in settling the
dispute through a counsel-only conference. After unsworn comments
from the parties and argument from counsel, the court issued a
tentative order but allowed the parties to submit objections
thereafter. The court issued an order on July 18, setting child
support, and allowing joint legal custody and shared residential
custody. Defendant filed a motion for reconsideration on August
21, contending that the court failed to make findings of fact and
conclusions of law.
On January 29, 2015, before deciding the reconsideration
motion, the court issued a written memorandum of decision
explaining its July 18 order.
The reconsideration motion was eventually heard on March 17,
2015.1 Defendant argued that the court failed to adhere to Rule
5:8-1 by referring the dispute to mediation before deciding
custody, and that the court should have required an investigation
to determine what was in the child's best interest. Defendant
1
Defendant's appeal brief notes that the delay in hearing the
matter was due to "several reschedulings."
2 A-4052-14T3
also noted that plaintiff had not taken advantage of the parenting
time afforded him under the court's order because of his two jobs.
Plaintiff opposed, maintaining that the parties were given the
opportunity to settle parenting time and custody but were
unsuccessful, and that a costly investigation is unnecessary given
that neither parent is unfit and the court's decision was well-
reasoned.
On March 23, 2015, the court entered an order denying the
motion. The court found that there was no good reason to
reconsider its decision because defendant did not allege that the
court had based its decision on plainly incorrect reasoning, nor
that the court failed to consider probative competent evidence.
In this appeal, we agree with defendant that the court's non-
compliance with our rules of court should result in vacating the
July 18, 2014 custody order. Rule 5:8-1 provides: "In family
actions in which the court finds that either the custody of
children or parenting time issues, or both, are a genuine and
substantial issue, the court shall refer the case to mediation[.]"
When a trial court fails to refer the case to mediation, we are
"compelled to remand" the family matter. See D.A. v. R.C., 438
N.J. Super. 431, 460 (App. Div. 2014). If mediation is not
successful, Rule 5:8-1 allows the judge to order a best interests
evaluation. We leave determination of the need for such an
3 A-4052-14T3
evaluation to the judge's discretion. Further, the judge and the
parties will need to determine whether expert assistance is
necessary. If, after these steps have been taken, the issues are
still contested by the parties, a plenary hearing will be required
with testimony under oath and cross-examination of the witnesses.
See D.A., supra, 438 N.J. at 450-451. "Absent exigent
circumstances, changes in custody should not be ordered without a
full plenary hearing." Ibid. (quoting Faucett v. Vasquez, 411
N.J. Super. 108, 119 (App. Div. 2009), certif. denied, 203 N.J.
435 (2010).
Reversed and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
4 A-4052-14T3