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Mackowski v. Mackowski

December 04, 1998

CHARLOTTE M. MACKOWSKI, PLAINTIFF-RESPONDENT,
v.
WALTER MACKOWSKI, DEFENDANT-APPELLANT.



Before Judges Kestin, Wefing and Carchman.

The opinion of the court was delivered by: Carchman, J.A.D.

[9]    Submitted November 10, 1998

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County.

This post-divorce litigation primarily concerns the custody of the parties' youngest child, Melanie Mackowski, age 16. Defendant Walter Mackowski, the child's father, appeals from an order of October 10, 1997, denying his motion for (1) a transfer of physical custody of Melanie from plaintiff Charlotte M. Mackowski, the child's mother, to himself; (2) termination of his child support obligation for Melanie; (3) recalculation of his child support payments and imposition of a child support obligation on plaintiff; (4) sale of the parties' home in which plaintiff resides with Melanie, the two emancipated children of the marriage, and her boyfriend; (5) production of evidence of the status of a mutual fund established for the children's education; and (6) payment of rent by plaintiff's boyfriend. On appeal, defendant asserts that the trial court should have held a hearing on the issues presented and should have interviewed the child. We agree and reverse and remand for further proceedings.

Defendant's motion was supported by a certification which stated, among other things, that Melanie wanted to live with her father. The motion requested oral argument if opposition was filed. Plaintiff filed an opposing certification taking issue with many of defendant's assertions of fact but not denying that Melanie wanted to live with her father. Plaintiff responded with a second certification to which he attached three letters from Melanie directly in support of the subject motion, all containing expressions of Melanie's desire to live with defendant. The certification also requested that the trial Judge "speak directly to my daughter so that the court can see how sincere and mature my daughter really is."

The trial court refused the request for oral argument and entered its order without making any findings of fact or stating any Conclusions of law. After receiving defendant's notice of appeal, the trial court, on December 2, 1997, placed an oral opinion on the record in support of its October 10, 1997, order stating that it had adopted the facts contained in plaintiff's certification.

The trial court's opinion contains these pertinent statements:

[T]he Court merely adopted the facts contained within the certification of Charlotte Mackowski.

I did not [interview the child] and my reasons for not doing that is that I did not find any compelling reasons to have Melanie leave her present situation. And I just did not want to place her in the middle of choosing between her father and her mother.

I did not order a hearing because the hearing would basically come down to Melanie having again to testify against her mother as to why she should live with her father. That type of hearing, I find, from the facts that I have before me, and I pretty much adopt the facts contained within the certification of Charlotte Mackowski, would be very harmful to the . . . whole situation, to the mother and father and to the child.

It is evident from the body of the brief that the mutual funds issue is no longer in dispute. Although there is a minor reference to a desire to explore, at the requested hearing, the alleged obligation of the boyfriend to pay rent, no authorities are cited on that matter. Nor does the brief address the request for a court ordered sale of the house. We deem this issue to be abandoned. See R. 2:6-2; McGarry v. St. Anthony of Padua, 307 N.J. Super. 525, 531 (App. Div. 1998). Consequently, we will limit our Discussion to the custody issue, without prejudice to defendant's rights to seek reconsideration before the trial court on the other matters.

R. 5:8-6 requires a plenary hearing to be conducted where custody of children is a genuine and substantial issue, [and] the court shall set a hearing date no later than 3 months after the last responsive pleading. . . . As part of the custody hearing, the court shall . . . at the request of a litigant conduct an interview with the child(ren) if the child(ren) are age 7 or older.

[Emphasis added.]

Nothing in the trial court's opinion indicates that it did not believe there was a genuine and substantial issue regarding Melanie's custody, and from our review of the certifications, we are satisfied that such an issue existed. Thus, the failure to conduct a plenary hearing and to interview the child was inconsistent with R. 5:8-6 and our decisions in G.C. v. M.Y., 278 N.J. Super. 363, 368 (App. Div. 1995) (concluding it was improper to make a custody decision on an emergent basis without a plenary hearing and interview with the children in the absence of imminent or threatened harm to the children), and Lavene v. Lavene, 148 N.J. Super. 267, 273 (App. Div.), certif. denied, 75 N.J. 28 (1977). The trial court's order was based on its evaluation of conflicting affidavits and adoption of the assertions of one party over the other without the benefit of a plenary hearing. That course was also inconsistent with the requirements of Wilke v. Culp, 196 N.J. Super. 487, 501 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985) (holding it "basic that a case should not be decided merely on the basis of conflicting affidavits, or an inadequate record"), and Fusco v. Fusco, 186 N.J. Super. 321, 327-29 (App. Div. 1982) (concluding resolution of visitation issues could not be made on basis of conflicting certifications and otherwise insufficient record). See also Wagner v. Wagner, 165 N.J. Super. 553, 555 (App. Div. ...


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