Opinion
DOCKET NO. A-0733-10T3
09-26-2011
Ronald S. Heymann argued the cause for appellant (Heymann & Fletcher, attorneys; Crystal G. Surface, on the brief). John Fiorello argued the cause for respondent (Fiorello, Puccio & Fiorello, LLC, attorneys; Mr. Fiorello, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges A.A. Rodríguez, Sabatino and Fasciale.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FD-16-1431-04.
Ronald S. Heymann argued the cause for appellant (Heymann & Fletcher, attorneys; Crystal G. Surface, on the brief).
John Fiorello argued the cause for respondent (Fiorello, Puccio & Fiorello, LLC, attorneys; Mr. Fiorello, on the brief). PER CURIAM
In this non-dissolution Family Part case, defendant (mother) appeals from two orders concerning custody; parenting time; counsel fees; and related relief. The mother's main argument is that the judge decided these issues without sufficient evidence and erred by failing to make findings of fact and conclusions of law. We reverse, remand, and direct that the judge make the requisite findings and, if necessary, conduct a plenary hearing.
The parties have never been married. Their dispute primarily concerns custody and parenting time for their six-year-old son, T.O. One month after T.O.'s birth, the Family Part awarded to the mother legal and residential custody of T.O., established a parenting time schedule, and permitted supervised visitation between T.O. and plaintiff-father. The parties then consented to the father's continued supervised visitation with T.O. pending a best interest evaluation. After the court-appointed expert, Dr. Paul Dasher, conducted the evaluation in February 2005, the court allowed the father to have unsupervised visits with T.O. Dr. Dasher recommended that the mother undergo psychological counseling as a condition to her maintaining residential custody of T.O.
T.O. was born in January, 2004.
For approximately five years, T.O. remained in his mother's custody, his father visited with T.O., and the parties refrained from involving the court concerning custody and visitation. The record suggests that things were generally cooperative between the parties, until the mother allegedly began a committed relationship with another man in 2009. According to the father, this caused her to alienate T.O. from him, and there were about five or six situations in which T.O.'s mother allegedly cancelled his father's parenting time unilaterally. These problems led the father to file a motion in aid of litigant's rights.
In June 2010, T.O.'s father filed his motion seeking to (1) declare the mother in violation of his visitation rights; (2) amend the parenting time schedule; (3) grant joint legal custody of T.O.; (4) direct the mother to provide proof that she attended a parenting program; (5) require the mother to undergo and pay for a supplemental best interest evaluation with Dr. Dasher; (6) direct that the mother's residence be inspected; (7) permit him to claim T.O. as a dependant on his income tax returns; and (8) award counsel fees. The father filed a certification stating that the mother curtailed and reduced his parenting and visitation time with T.O.
T.O.'s mother filed opposition and a cross-motion seeking to (1) modify the parenting time schedule; (2) require the father to contribute fifty percent of the costs of T.O.'s extracurricular activities, seventy percent of the costs of T.O.'s attendance at the Huntington Learning Center (HLC), and seventy-five percent of T.O.'s unreimbursed medical expenses; (3) provide proof of life insurance; and (4) direct the father to advise when he is traveling outside the state and to inform her of the location of his out-of-state travel. She filed a certification and denied that she alienated T.O. from his father.
On July 23, 2010, the judge conducted oral argument and noted that he had not yet fully reviewed all of the voluminous material filed by the parties. At the conclusion of oral argument, the judge reserved decision, but he then "target[ed his] thinking" by stating that he "expect[ed] to grant [the father's] motion virtually in its entirety." The judge did not make any findings of fact, render an oral or written opinion, or conduct a plenary hearing. Rather, the judge entered two orders from which the mother now appeals.
In a September 15, 2010 order, the judge granted the father's motion and adjudicated the mother in violation of litigant's rights by failing to follow the parenting time schedule. The judge modified the parenting time schedule, required the mother to attend a parenting program, granted joint legal custody of T.O., ordered a supplemental best interest evaluation and required the mother to pay seventy percent towards its cost, directed that a home inspection be conducted of the mother's residence, allowed the parties to claim T.O. as an exemption on their income tax returns on alternate years, and awarded counsel fees in favor of the father totaling $2,000. On September 23, 2010, the judge entered the second order under review and denied the mother's cross-motion, with the exception of requiring the father to pay fifty percent of unreimbursed medical expenses and provide proof of insurance coverage.
The mother's attorney told the motion judge at oral argument that he would not resist the father's request to claim T.O. as an exemption on his tax returns, even though the attorney stated to the judge that the exemption "would be more beneficial to [the mother]" than to the father. We do not consider counsel's remark as a waiver of the issue, and it may be addressed again on remand.
On appeal, T.O.'s mother argues that his father failed to establish a prima facie case of changed circumstances, and even if he had, the judge failed to conduct a plenary hearing to address whether to modify custody and parenting time. She also argues that the judge failed to provide findings of fact or conclusions of law to explain any of his rulings.
We begin by stating that in any "action[] tried without a jury, [or] on every motion decided by a written order" the judge must "by an opinion or memorandum decision, either written or oral, find the facts and state [his or her] conclusions of law . . . ." R. 1:7-4(a). "The rule requires specific findings of fact and conclusions of law . . . ." Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 1:7-4 (2012). Here, the judge did not comply with this rule because he did not provide any findings of fact or conclusions of law.
Custody and visitation orders are subject to modification at any time "upon a showing of a material change in circumstances." Hoy v. Willis, 165 N.J. Super. 265, 275-76 (App. Div. 1978). The party seeking a modification has the burden to show it is warranted. Mastropole v. Mastropole, 181 N.J. Super. 130, 136 (App. Div. 1981) (citing Beck v. Beck, 86 N.J. 480, 496, n.8 (1981)). The issue is whether circumstances have changed in a manner that will impact the welfare of the child. See Hoy, supra, 165 N.J. Super. at 276 ("At all times the best interests of the child should be the guiding principle and the paramount considerations are the child's safety, happiness and mental, physical and emotional welfare."); Fantony v. Fantony, 21 N.J. 525, 536 (1956).
We have previously held that "'the matter of visitation is so important . . . that if a plenary hearing will better enable a court to fashion a plan of visitation more commensurate with a child's welfare,' a plenary hearing must be required by the court even if the parties have waived it." Fusco v. Fusco, 186 N.J. Super. 321, 327 (App. Div. 1982) (quoting Wagner v. Wagner, 165 N.J. Super. 553 (App. Div. 1979), certif. denied, 85 N.J. 93 (1980)). Here, the judge did not address whether a plenary hearing was required.
Although the judge permitted the mother to retain physical custody of T.O., he awarded joint legal custody to the parties. Joint legal custody is the "'authority and responsibility for making 'major' decisions regarding the child's welfare' . . . ." Pascale v. Pascale, 140 N.J. 583, 596 (1995) (quoting Beck, supra, 86 N.J. at 487). It is "the preferred arrangement since it is likely to foster the best interests of the child in the proper case." Grover v. Terlaje, 379 N.J. Super. 400, 406 (App. Div. 2005) (internal quotation marks omitted); Beck, supra, 86 N.J. at 488; Nufrio v. Nufrio, 341 N.J. Super. 548, 555 (App. Div. 2001).
As with physical custody, when "the issue is whether [a parent] should be granted joint legal custody . . . the best interests standard applies and the factors set forth in N.J.S.A. 9:2-4 come into play." V.C. v. M.J.B., 163 N.J. 200, 229 (2000). Before a court can "order[] a change to joint legal custody, it should . . . hear[] all relevant evidence, give[] the parties the opportunity to argue the matter, and ma[k]e findings as to the appropriateness of such an arrangement." P.T. v. M.S., 325 N.J. Super. 193, 217 (App. Div. 1999) (quoting Beck, supra, 86 N.J. at 499).
We will uphold the factual findings supporting the trial court's decision if they are supported by "adequate, substantial and credible evidence." In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (internal quotation marks and citations omitted). "Additionally, as a general rule, we must grant deference to the trial court's credibility determinations." Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 279 (2007); see also Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We must ask ourselves whether the trial court's findings "'went so wide of the mark that a mistake must have been made.'" M.M., supra, 189 N.J. at 279 (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am. Inc., 233 N.J. Super. 65, 69 (App. Div. 1989)); accord Pioneer Nat'l Title Ins. Co. v. Lucas, 155 N.J. Super. 332, 338 (App. Div.), aff'd, 78 N.J. 320 (1978).
Here, the record is insufficient to determine whether changed circumstances exist. Likewise, if the circumstances have changed, we are unable to determine whether modification of custody and visitation is warranted. The judge adjudicated T.O.'s mother in violation of his father's visitation rights, but did not resolve the disputed factual issues expressed by the conflicting certifications filed by the parties. Although he determined that T.O.'s father was entitled to counsel fees, the judge made no findings and did not consider the relevant factors listed in Rule 5:3-5(c). Because the judge failed to make findings of fact or conclusions of law, we are unable to determine whether the judge abused his discretion when he changed legal custody, modified the parenting time schedule, and issued his other rulings.
At oral argument on appeal, counsel stated that Dr. Dasher has already conducted a supplemental best interest analysis and that a home evaluation of the mother's residence has occurred. As a result, these two issues are now moot, with the exception of determining on remand what amount of money each party should pay for Dr. Dasher's supplemental evaluation.
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We therefore reverse, remand, and direct that no later than December 2, 2011 the judge make the requisite findings concerning the competing motions filed by the parties and, if necessary, conduct a plenary hearing. The judge shall file the statement of reasons with the Clerk of the Appellate Division. Although we reverse the orders dated September 15 and 23, 2010, the status quo concerning the existing parenting and visitation schedule shall remain in effect pending further orders of the trial court. We retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION