On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, FM-01-898-02.
Before Judges Petrella, Lintner and Parker.
The opinion of the court was delivered by: Parker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 7, 2005
In these consolidated cases, plaintiff appeals from five post-judgment orders entered by the Family Part in Atlantic County. The orders, entered on October 6, 2003, January 9, January 30, February 4 and April 8, 2004, reflect an escalating dispute between the parties regarding custody and visitation, culminating in the April 8, 2004 order, summarily changing custody from plaintiff to defendant. We reverse all five orders and remand for a plenary hearing.
The parties were married on April 12, 1992 and had two children, Keenan, born August 24, 1993, and Jarret, born November 24, 1997. A final judgment of divorce was entered on June 16, 2003, to which a transcript of proceedings of January 13, 2003, was appended. The transcript recorded the parties' property settlement agreement that was placed on the record but never reduced to a formal written agreement.*fn1
In the transcript of the January 13, 2003 proceeding, defendant's attorney placed on the record the terms and conditions of the agreement, including custody and parenting provisions. Plaintiff was designated the parent of primary residential custody and defendant was to have parenting time "on alternate weekends as per the times set forth in the pendente lite order which, for the record, begin at [8:30 a.m.]... on Saturday.... [to 7:00 p.m.]... on Sundays." The record indicates that defendant also had the children on Wednesday nights.
In September 2003, barely three months after the judgment of divorce was entered, defendant moved to extend his parenting time. In an order entered on October 6, 2003, the judge granted defendant's motion and appointed Dov Hammer, Psy.D., as an expert to conduct a custody evaluation and to identify the emotional & psychological needs of each child; assess the abilities of each party to provide for and meet those needs; and to recommend a Parenting Plan, as described in Rule 5:8-5, designed to best insure that the children's needs will be met. In addition to or as part of the investigation described below, the expert shall (a) review the pleadings and other documents on file with the court or submitted by either party in this matter; and (b) interview the parties and the children, if of appropriate age, whose custody is the subject of this litigation.
The order further provided:
If the Plaintiff fails to comply with the Court's Orders regarding Dr. Hammer, by failing to make or attend scheduled appointments, or by failing in any fashion to cooperate in good faith with the evaluation process, the Court will entertain a motion, on short notice, to place a hold on her support payments.
Finally, the order modified defendant's parenting time, allowing him to begin his weekend visits at 7:00 p.m. on Fridays, rather than 8:30 a.m. on Saturdays. This order modifying the parties' agreement was entered in the absence of an evidentiary hearing.
In December 2003, defendant moved to enforce the October 6 order,*fn2 and on January 9, 2004, an order was entered finding plaintiff in violation of the October 6 order. The court awarded counsel fees to defendant in the amount of $3,110 and reduced defendant's support obligation by half as a sanction against plaintiff, based on the judge's determination that plaintiff violated the October 6 order. The January 9 order further directed plaintiff to appear on January 30, 2004 "and show cause why future support payments should not be reduced or suspended until she has complied with the existing court orders." Plaintiff was not present for the January 9, 2004 proceeding and the order modifying support and assessing sanctions was entered in the absence of an evidentiary hearing.
On January 30, 2004, defendant and his attorney were back in court but, again, plaintiff was not present and nothing in the record indicates that plaintiff ever received timely notice of the January 30 proceeding.
On January 17, 2004, Dr. Hammer had written a letter to the judge complaining that he had "been frustrated by the inability to reach Mrs. Entress and/or secure appointments with her once contact is initiated." He further indicated that, "[e]ssentially, Mrs. Entress appears to be either confused by current circumstances or deliberately oppositional to Court orders, instruction and/or the evaluative process" but noted that he was "not yet in a position to assess whether or not the above-described ...