Opinion
DOCKET NO. A-1228-11T4
10-25-2012
R.R., Plaintiff-Respondent, v. V.R., Defendant-Appellant.
Steven Resnick argued the cause for appellant (Budd Larner, P.C., attorneys; Patricia Tuckman, Elizabeth M. Foster- Fernandez and Armando R. Horta, on the briefs; Barry L. Baime, on the motion brief). Sheryl E. Koomer argued the cause for respondent (Hellring Lindeman Goldstein & Siegal, LLP, attorneys; Ms. Koomer and Bruce S. Etterman, of counsel and on the brief; Ms. Koomer, Mr. Etterman and Jonathan L. Goldstein, on the motion brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Argued May 1, 2012 - Decided September 19, 2012
Motion for clarification and reconsideration
granted.
Supplemental opinion - Decided October 25, 2012
Before Judges Espinosa and Kennedy.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex
County, Docket No. FM-07-538-07.
Steven Resnick argued the cause for
appellant (Budd Larner, P.C., attorneys;
Patricia Tuckman, Elizabeth M. Foster
Fernandez and Armando R. Horta, on the
briefs; Barry L. Baime, on the motion
brief).
Sheryl E. Koomer argued the cause for
respondent (Hellring Lindeman Goldstein &
Siegal, LLP, attorneys; Ms. Koomer and Bruce
S. Etterman, of counsel and on the brief;
Ms. Koomer, Mr. Etterman and Jonathan L.
Goldstein, on the motion brief).
PER CURIAM
Following this court's decision, defendant's counsel filed a letter and submissions with the court. The court advised counsel for both parties that the letter from defendant's counsel would be considered a formal motion for clarification of the court's opinion and reconsideration of the court's denial of defendant's request that this matter be remanded to a different judge. A briefing schedule for opposition and reply was set. Respondent's request for oral argument of the motions is denied. Having reviewed the briefs and the record, we supplement our opinion of September 19, 2012 with this clarification and grant the motion for reconsideration.
Motion order M-000896-12.
Our opinion in this case set forth the following legal principles applicable to this appeal:
[T]o make a change in custody without affording the parties a full plenary hearing requires more than just a change in circumstances affecting the welfare of the child. Unless there are exigent
circumstances, changes in custody are not to be ordered without a plenary hearing. Where there is no evidence of any "imminent harm or threatened harm to the well-being" of the child, "there is no justification . . . [to make] a custody decision on an emergent basis, without a plenary hearing[.]"
[R.R. v. V.R., No. A-1228-11 (App. Div. September 19, 2012) (slip op. at 7-8) (internal citations omitted).]
We concluded that the evidence here was insufficient to establish exigent circumstances and found that "the trial court erred in proceeding to transfer custody without affording defendant a plenary hearing." Id., slip op. at 16. We reversed and remanded for further proceedings consistent with our opinion.
Thereafter, the trial court entered an order, dated September 21, 2012, that declared,
Pending a subsequent application by the Defendant to seek a pendente lite transfer of residential custody and a change of school of the two youngest children or the completion of a plenary hearing, the Plaintiff will remain as the parent of primary residence and the parenting plan as contained in the July 22, 2011 Order will remain in full force and effect.
The net effect of this order was to maintain a change in custody that we explicitly stated had been made erroneously and to shift the burden from the parent who sought to change custody to the parent who had lost custody as the result of this erroneously entered order. It therefore appears from the record presented in this motion that the reversal of the order in this case was not understood to mean that it was error to change custody based on the evidence presented. We now clarify our decision regarding Paragraph 2 of the order dated July 22, 2011, as follows:
Following our decision, defendant also sought a reinstatement of the parenting time schedule in effect prior to the trial court's July 22, 2011 order. This issue was not before us on appeal and is not addressed by this clarification.
Paragraph 2, granting plaintiff sole legal custody of the parties' children, "Sam," "Colin," and "Missy," is reversed and vacated. As a result, custody shall revert to the status prior to the court's July 22, 2011 with one exception. We exercise our original jurisdiction to order that the children's school enrollment remain unchanged pending the plenary hearing and decision on plaintiff's request for a change in custody.
The history of this litigation suggests that it may be several months before discovery is complete and a plenary hearing is conducted. To avoid subjecting the children to a cloud of uncertainty as to how long or where they go to a particular school, we exercise original jurisdiction as to the children's school enrollment pending the plenary hearing.
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In our opinion, we denied defendant's application for this matter to be referred to a different judge upon remand. At the time, we stated,
We perceive the errors committed here to be a function of the court's sense of urgency in resolving the custody issue in the best interest of the children - a perspective that was supported by the information available - rather than the result of any bias against defendant.
[Id., slip op. at 22.]
As noted, in our opinion, we stated that a finding of exigent circumstances, rather than simply the best interest of the child, was required to permit a change in custody without a plenary hearing. On remand, the trial court stated, "on a pendente lite basis I believe that there should be a change in the custodial status of these children as reflected in that order, because I believe that's in the best interest of these children." (Transcript of September 21, 2012, p. 25, lines 2-6). Although the judge recognized that there had been a reversal, he persisted in expressing his belief,
I do not believe it's in the best interest of these children, that my earlier ruling should be reversed, . . . they should remain on a pendente lite basis with their father at least until a motion is filed.
[Id. at 28, lines 11-15.]
These comments and others contained in the transcript of the hearing might reasonably lead a party to conclude that the judge has determined, in the absence of a plenary hearing, that it is in the best interest of the children to remain with plaintiff. Therefore, we have reconsidered our earlier denial of the application to remand this matter to a different judge, see R. 1:12-1(f), and now direct that the matter be handled by a different judge for further proceedings.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION