Opinion
DOCKET NO. A-2447-14T1
04-14-2016
J.S., Plaintiff-Appellant, v. C.B., Defendant-Respondent.
Galantucci, Patuto, De Vencentes, Potter & Doyle, LLC, attorneys for appellant (James M. Doyle, of counsel; Jane M. Personette, on the brief). Angela F. Pastor, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Vernoia. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FD-09-000481-09. Galantucci, Patuto, De Vencentes, Potter & Doyle, LLC, attorneys for appellant (James M. Doyle, of counsel; Jane M. Personette, on the brief). Angela F. Pastor, attorney for respondent. PER CURIAM
Plaintiff J.S. (Judy) appeals from those portions of a December 10, 2014 Family Part order modifying her parenting time with her daughter, L.B. (Laura), and directing that Judy and defendant C.B. (Carl) proceed to mediation. We reverse and remand for further proceedings.
We employ pseudonyms for each of the individuals involved in this matter for ease of reference and to protect the privacy of the minor children.
I.
We discern the following facts and procedural history from the record. Judy and Carl are the unmarried biological parents of Laura, who was born in 2005. In October 2013, Judy and Carl executed a "Custody, Parenting Time and Support Order" (the agreement) regarding Laura that memorialized their agreement on custody, parenting time, access to records, vacation and holiday time, telephone access, insurance, child support, and the settlement of disputes. Although the agreement was set forth in the form of an order, it was not filed with the court. Judy and Carl agree, however, that it constitutes a binding agreement between them.
Under the agreement, Judy and Carl shared joint legal and "50-50 residential parenting time for" Laura, and neither party was to be considered the parent of primary residence. The agreement provided that Carl's parenting time was every Tuesday from 2:50 p.m. until Wednesday at 7:50 a.m., Thursday from 2:50 p.m. until Friday at 7:50 a.m., and every other weekend from Thursday at 2:50 p.m. until Monday at 7:50 a.m. The agreement also included a parenting time schedule for holidays and special occasions.
The agreement included a procedure for the resolution of disputes. It provided that disputes regarding economic or non-financial child-related issues would be first addressed through personal discussions and then through submission of the dispute to mediation in accordance with a defined procedure. The parties agreed that the mediation procedure would be utilized "[e]xcept in the event of an emergency."
During 2014, Judy resided with J.A. (James). They have a daughter, A.A. (Anna), who was born in October 2013. In Judy's brief on appeal, she admits that her relationship with James has been "tumultuous and that the police and the [Division of Child Protection and Permanency (DCPP)] had become involved in their lives." Judy also admits that during a period of time in 2014, James "had been restricted to only supervised parenting contact" with Anna and Laura.
Prior to June 29, 2012, the Division of Child Protection and Permanency (DCPP) was known as the Division of Youth and Family Services (DYFS). See L. 2012, c. 16, effective June 29, 2012.
Judy also acknowledges that on September 4, 2014, "during her period of discord" with James which included a "domestic violence incident," Carl filed an emergent application for an order to show cause. In Carl's application, he stated that Judy had been "arrested again" and that "[Laura was] in physical and psychological danger in [Judy's] custody. [DCPP] has been called numerous times to [Judy's] home. [Judy] was arrested this morning on assault." In response to Carl's application, the court entered an order suspending Judy's parenting time, granting Carl temporary legal and residential custody of Laura, and scheduling a return date on the order to show cause for September 22, 2014.
On September 22, 2014, the parties appeared before the court with their respective counsel. The court entered an order permitting Judy to have parenting time with Laura after school and on Saturdays and Sundays, and directing that DCPP prepare a report for the court and that the caseworker appear at the next hearing.
On October 16, 2014, the court entered an order granting Judy parenting time with Laura from Friday evening through Sunday evening on alternating weekends. The order restrained James "from any contact with" Laura. The court directed that DCPP provide a report prior to the next hearing.
On December 10, 2014, Carl's counsel requested that the court continue the parenting time arrangement set forth in the October 16, 2014 order. Carl did not request a change in custody and instead sought a change in "parenting time based upon [Laura's] best interests."
Judy's counsel argued that the court should reinstate the parties' parenting time arrangement as set forth in the agreement, claiming the emergency that prompted entry of the court's prior orders had been remediated. He asserted that Judy had complied with DCPP services and no longer resided with James. Judy's counsel argued that any court-ordered departure from the parenting time schedule set forth in the agreement could only be made after a plenary hearing. The court rejected Judy's argument, stating it was a "court of summary dispositions" and that it did not "serve any purpose to keep delaying what [it was] going to do about the best interests of" Laura.
The court found there were changed circumstances since the parties' entry into the agreement. The court considered DCPP reports it had received following entry of its September 4, 2014 order and noted, without detailing, Judy's "lengthy history of police involvement" since the parties had entered into the agreement in October 2013. The court also considered psychological evaluation reports regarding Laura, which reflected that she was "suffering from anxiety and [a] depressed mood because of what's going on or what did go on . . . between [plaintiff] and . . . [James,] and . . . the relationship between mother and father." The court found that Laura was affected by the incidents of domestic violence between Judy and James, and her parent's relationship, and concluded that it was in Laura's "best interest" to maintain the parenting time schedule set forth in its October 16, 2014 order. The court continued the parties' joint legal custody of Laura.
The court directed that the October 16, 2014 parenting time schedule be maintained pending the parties' participation in mediation. The judge stated that he was not "wedd[ed]" to the October 16, 2014 parenting time schedule and that the parties could later return to the arrangement set forth in the agreement, but directed that the parties proceed to mediation to resolve the issues in accordance with the agreement.
After the judge made his ruling, the parties consented to an amendment of the parenting time schedule and expanded Judy's parenting time to every other Friday evening to Monday morning. The court entered a December 10, 2014 order which reflected the modified parenting time schedule, directed that the parties follow recommendations for counseling, restrained James from having any contact with Laura, and required that the parties proceed to mediation in accordance with the agreement.
The order incorrectly refers to the parties' 2013 agreement as the "consent order dated 9/2013."
Judy appealed, challenging that portion of the court's December 10, 2014 order modifying her parenting time. Judy also contends that the court's referral of the matter to mediation was not in accordance with Rule 5:8-1. She does not challenge the remaining portions of the order, including the restraint prohibiting James from having any contact with Laura.
II.
We accord deference to decisions by the family courts due to their "special jurisdiction" and "expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Courts should defer to a family court's fact finding so long as the determinations are "supported by adequate, substantial, credible evidence" in the record. Gnall v. Gnall, 222 N.J. 414, 428 (2015) (citing Cesare, supra, 154 N.J. at 411-12). "[W]e accord great deference to [the] discretionary decisions of Family Part judges," including decisions concerning custody. Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012). However, the trial court's legal conclusions are "subject to our plenary review." Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013); see also Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.").
"In custody cases, it is well settled that the court's primary consideration is the best interests of the children." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (citing Kinsella v. Kinsella, 150 N.J. 276, 317 (1997)). "The court must focus on the 'safety, happiness, physical, mental and moral welfare' of the children." Ibid. (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)).
A court is required to "order any custody arrangement which is agreed to by both parents unless it is contrary to the best interests of the child." N.J.S.A. 9:2-4(d). Custody issues must be "resolved using a best interests analysis that gives weight to the factors set forth in N.J.S.A. 9:2-4(c)." Hand, supra, 391 N.J. Super. at 105. The requirements of the statute apply equally to determinations of parenting time disputes. See V.C. v. M.J.B., 163 N.J. 200, 227-28 (stating that "[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, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000).
N.J.S.A. 9:2-4(f) requires that the court "specifically place on the record the factors which justify any custody arrangement not agreed to by both parents." The court must state the reasons for its decision on the record and "reference the pertinent statutory criteria with some specificity." Kinsella, supra, 150 N.J. at 317 (quoting Terry v. Terry, 270 N.J. Super. 105, 119 (App. Div. 1994)).
"Absent exigent circumstances, changes in custody should not be ordered without a full plenary hearing." D.A. v. R.C., 438 N.J. Super. 431, 450-51 (App. Div. 2014) (quoting Faucett v. Vasquez, 411 N.J. Super. 108, 119 (App. Div. 2009), certif. denied, 203 N.J. 435 (2010)); Entress v. Entress, 376 N.J. Super. 125, 133 (App. Div. 2005). That is because "even 'a temporary decision to change custody can take on a life of its own, creating a new status quo.'" Faucett, supra, 411 N.J. Super. at 119 (quoting Peregoy v. Peregoy, 358 N.J. Super. 179, 203 (App. Div. 2003)). "The status quo ante is significant because '[a] party seeking to modify custody must demonstrate changed circumstances that affect the welfare of the child[].'" Ibid. (alterations in original) (quoting Hand, supra, 391 N.J. Super. at 105).
In its December 10, 2014 order, the court modified what the parties characterized in their agreement as parenting time, but which in actuality was their agreed upon residential custody arrangement, without conducting a plenary hearing. We are, however, without a record with which to assess whether the court properly denied defendant's request for a hearing based upon exigent circumstances. The court erred in failing to make any findings as to the presence of exigent circumstances on December 10, 2014, which permitted the change in residential custody without a hearing. D.A., supra, 438 N.J. Super. at 450.
We recognize that the matter was before the court as the result of an emergent application, but the record suggests that the emergency which resulted in entry of the September 4, 2014 order to show cause, Judy's arrest and a domestic violence incident between her and James, had been remediated. By December 10, 2014, the court had ordered that James not have any contact with Laura, and Judy did not oppose that restriction. In addition, the court's award of unsupervised parenting time to Judy appears inconsistent with a finding that there were exigent circumstances warranting a change in Judy's parenting time.
In the absence of exigent circumstances, a court is not required to conduct a plenary hearing if it determines there are no genuine issues of material fact. Hand, supra, 391 N.J. Super. at 105; see also Lepis, supra, 83 N.J. at 159 ("[A] party must clearly demonstrate the existence of a genuine issue as to a material fact before a hearing is necessary."). The court, however, did not determine there was an absence of genuine issues of material fact, and erred by deciding an issue of fact without the benefit of a hearing. The court made a factual determination regarding Laura's welfare when it rejected a DCPP report stating that there was "no evidence to suggest [Laura was] significantly affected by the actions of [Judy] and [James,]" finding that it was "either a misstatement, or . . ." a statement the court rejected based upon its review of a contradictory psychological report.
The judge's decision to change the parties' agreed upon residential custody arrangement was based on his "concerns" regarding unspecified "psychological issues" of Judy, which the judge did not identify and did not "feel it necessary to go through." He similarly relied upon concerns regarding Judy's "lengthy history of police involvement," without making any findings regarding the history or the manner in which it resulted in an exigent circumstance obviating the need for a plenary hearing. The court's decision to modify the parenting time arrangement was based upon its finding that the modification was in the "best interests" of Laura. The judge found that "it's in the best interest of the child at this point and to avoid any risk of harm, and I'm not saying that she necessarily is at risk of harm right now, but to avoid any potential risk of harm I believe the [October 16, 2014] order . . . should stay in place."
In making its determination, the court erred by failing to consider "any of the relevant statutory and regulatory standards to determine whether a change in residential custody was in the best interest of" Laura. D.A., supra, 438 N.J. Super. at 451. Under such circumstances, we are left with "no other alternative but to remand this matter for the court to consider and apply the required procedural guidelines." Ibid.
Here, the procedure required on remand is dependent in part upon the parties' agreement. Settlement agreements in family matters are contracts, and "should be enforced according to the original intent of the parties," J.B. v. W.B. 215 N.J. 305, 326 (2013), "to the extent that they are just and equitable." Lepis v. Lepis, 83 N.J. 139, 146 (1980) (quoting Schlemm v. Schlemm, 31 N.J. 557, 581-82 (1960)); see also Pacifico v. Pacifico, 190 N.J. 258, 266 (2007) ("As a general rule, courts should enforce contracts as the parties intended.").
The parties agreed that all disputes regarding custody and parenting time would be submitted to mediation and that resort to the courts was permitted only in "emergencies" or where the mediation conducted in accordance with the protocol fails. The parties' agreement is in accord with our court rules which require the referral to mediation of all "genuine and substantial issue[s]" regarding "custody of children or parenting time issues." R. 5:8-1. "Our court system encourages mediation as an important means of settling disputes." Willingboro Mall, Ltd. v. 240/242 Franklin Ave., L.L.C., 215 N.J. 242, 254 (2013) .
Based upon our review of the record, we are convinced that Judy's arrest and admitted domestic violence issues with James constituted an "emergency" within the meaning of the agreement that allowed Carl to properly file the September 4, 2014 application. Under the circumstances presented to the court on December 10, 2014, it was required to conduct a plenary hearing to determine whether it was in Laura's best interests to modify the residential custody arrangement contained in the agreement.
Judy does not argue that Carl was obligated to proceed to mediation in lieu of filing the September 4, 2014 application. --------
We remand the matter for a plenary hearing on defendant's request for a change in residential custody from that which was set forth in the agreement. Any determination regarding residential custody and parenting time must be based upon a consideration and weighing of the factors set forth in N.J.S.A. 9:4-2(c). Kinsella, supra, 150 N.J. at 317. All of the court's determinations must be supported by findings of fact and conclusions of law. R. 1:7-4.
Reversed and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION