May 1, 2008
NICHOLAS EVANGELISTA, PLAINTIFF-APPELLANT,
CHRISTINE BAGLIVO, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FD-05-730-93.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 5, 2008
Before Judges Skillman and LeWinn.
Nicholas Evangelista (plaintiff) and Christine Baglivo (defendant) are the parents of a child, N.B., born February 17, 1993. On September 25, 1997, the parties entered into a consent order under which they shared joint legal custody of N.B., with defendant designated as the parent of primary residence; plaintiff had parenting time on the first, third and fourth full weekends per month from approximately 5:00 p.m. on Friday through 7:30 a.m. on Monday, and additional "reasonable and liberal visitation, with 24 hours advance notice[.]" Plaintiff also had one week per year of uninterrupted vacation time, and the parties alternated parenting time on all major holidays. With respect to joint legal custody, the consent order provided:
All major decisions regarding the general welfare of the child, including, but not limited to, health, education, and religion shall be made jointly b[y] the parties.
Each party has an affirmative obligation to consult with the other on major issues and with the exception of emergency situations, mutual consent and agreement is to be obtained prior to any action being taken.
In the event the parties are unable to reach a mutual agreement as to how to proceed, either party may make the appropriate application to the Court. Both parties shall also have an affirmative obligation to keep the other advised as to the status of the child's schooling, the events and activities in which she is involved and as to her health and general welfare.
Plaintiff now appeals from the January 30, 2007 order of the Family Part awarding sole legal custody of N.B. to defendant and modifying his parenting time, and from the March 20, 2007 order denying his motion for reconsideration.
Having reviewed the record, we conclude that the trial judge abused his discretion in issuing the January 30 order and in denying reconsideration of that order on March 20. We reverse and remand this matter for further proceedings before another judge of the Family Part.
On November 17, 2006, defendant filed a one-page pro se motion to enforce the 1997 consent order and to modify child support. Oral argument on that motion was held on January 30, 2007. At that proceeding, plaintiff appeared pro se and defendant appeared with counsel.
Plaintiff brought N.B. to court. Plaintiff told the judge that N.B., then almost fourteen years old, wanted "to talk." The judge responded: "I want her out of the courtroom." He then chastised plaintiff for bringing N.B. to court.
Defendant's counsel noted that her motion was for enforcement of the consent order. Counsel stated: "At the time of filing the motion [defendant] was in the midst of a controversy involving the child's father, [plaintiff]. That crisis has appeared to have passed." Counsel contended that plaintiff had signed N.B. out of school and brought her to court that day without defendant's knowledge or authorization.
The court questioned plaintiff as to the accuracy of that statement. Plaintiff responded: "I didn't know it was illegal to sign my daughter out of school. We share joint custody. I didn't know I'd need permission[.]" Plaintiff further represented that he discussed with defendant his desire to bring N.B. to court, and defendant had told him she would bring the child; later, N.B. called plaintiff and told him that defendant was not going to bring her to court. Therefore, plaintiff went to school, signed her out, and brought her to the court proceeding.
Defendant's counsel represented to the court that defendant believed plaintiff was engaging "in a course of conduct to usurp her authority and essentially alienate the affections of the daughter from the mother by doing a variety of things[.]" The judge inquired: "Well, what does she think that I ought to do about it?" Defendant's counsel responded: "Well, we're not looking for a change in the custody order obviously. We believe that the arrangement is in the best interest of the child for them to have joint custody and for [defendant] to continue as a [sic] residential parent." However, counsel argued, the parties should "cooperate to respect one another, respect parental authority of the residential parent, and that this be made known to the plaintiff so that he is not undermining her authority as parent."
The judge responded: " I . . . agree, counselor. I mean if your client were asking me for a sole custody order, I'm prepared to give that to her today. Does she think that that helps?" Defendant immediately responded: "Yes, I do."
The following colloquy then took place between the judge and plaintiff:
THE COURT: Sir, your conduct has shown a fundamental inability to cooperate, number one; number two, a fundamental lack of insight as to how this -- this thing should be handled. I am shocked, appalled, mortified, whatever type of word that I can think of on a Tuesday morning, that you went to school and took her out of school and brought her into a courtroom that's full of people so that she could tell me her personal business.
MR. EVANGELISTA: Your Honor, I didn't -
THE COURT: You didn't think.
MR. EVANGELISTA: Well, --
THE COURT: You obviously didn't think.
MR. EVANGELISTA: -- Your Honor, I didn't make her -- I didn't make her come here. She wanted to come here to tell you--
THE COURT: Yes, sir. Yes, sir. You went and you signed her out of school and put her in a car and drove her here.
MR. EVANGELISTA: Your Honor, --
THE COURT: Okay.
MR. EVANGELISTA: -- she wanted to come here and tell you that she wants to move in with me and this has --
THE COURT: Sir, why would you --
MR. EVANGELISTA: -- this has been going --
THE COURT: -- possibly do -- You still --
MR. EVANGELISTA: -- this has been going on --
THE COURT: -- don't get it.
MR. EVANGELISTA: -- for a year.
THE COURT: You still don't get it. You still don't get it. Okay. You still think that it's a good idea. I -- I'm verbally spanking you at this particular point and you still think that it's a good idea. That shows a fundamental lack of insight into the mind of a 13 year old, the nature of this particular proceeding, and you brought her to a courtroom so that she could tell me bad things about her mother. Isn't that what you did, sir?
MR. EVANGELISTA: No, that's not what I did. It was -- It wasn't -- I'm not here for a mudslinging contest. I'm just here --[N.B.] wanted to just -- She wanted to ask permission to be allowed to move in with her father so she can be with her other brothers and sisters.
THE COURT: Sir, you can't take care of her. That's apparent to me. So -- So that request is denied.
MR. EVANGELISTA: I don't understand how I can't take care of her. What do you -- How -- Why can't I --
THE COURT: Sir, just what you did here --
MR. EVANGELISTA: -- take care of her?
THE COURT: -- today.
MR. EVANGELISTA: Because I don't --Because I don't know the -- didn't know the law, that I'm not allowed to bring a child here, I'm being punished for it? I didn't know -- I mean if I -- I didn't know that there was a law against that.
The judge then inquired of defendant's counsel: "[W]hat sort of custody order does your client want at this time?" Counsel responded: "My client obviously is seeking a change in custody whereby she would be considered the sole custodial parent." Counsel also requested modification of parenting time, to have plaintiff's weekend visitation end at 8:00 p.m. on Sunday evening rather then the following Monday morning.
The trial judge found that plaintiff "is unable and unwilling to work with the other parent" and, therefore, a joint custody order would be unworkable. Plaintiff interjected a request to speak to an attorney, to which the court responded: "[Y]ou can talk to an attorney, but . . . I'm not stopping the proceeding here today. All right. You've turned your elbows around and bullied your way through this and now you're here in the courtroom." The court then ruled as follows:
A joint custody order requires an ability of parents to work together. I don't have that in this particular case, not at least at this moment, and it requires a sole custody order and I'm granting, [counsel], your client sole custody at this particular point.
The court thereupon entered an order granting defendant sole custody of N.B.; he further ordered that plaintiff's parenting time would be continued "as previously ordered," with the modification N.B. was to be returned to defendant on Sunday by 8:00 p.m.*fn1
Plaintiff filed a motion for reconsideration of the January 30 order, and for a change of custody of N.B., to designate him as the parent of primary residence. On March 20, 2007, the trial judge entered an order denying both requests, and issued a statement of reasons in support of that order.*fn2
Noting that he took no testimony at the January 30 hearing, the judge concluded that he was not required to do so. He stated:
The Court did make findings of fact regarding the best interests of [N.B.]. Specifically, the Court found based on what was apparent before the Court at the time that a joint custodial arrangement was not in the best interests of [N.B.], reasoning that joint custody requires an ability of the parties to cooperate, and finding an inability on the part of the parties to cooperate.
. . . . Additionally, the Court made the following findings of fact: Plaintiff had demonstrated, by his having (a) taken [N.B] out of school against the wishes of the then Parent of Primary Residence, and (b) brought her to Court to speak her preferences in the custodial arrangement was indicative of Plaintiff's fundamental misunderstanding of what served the best interest of [N.B.].
The Court does not find that a plenary hearing is always required in ordering a change of custody. The Appellate Division has indicated that changes in custody may be made where exigent circumstances exist in the absence of a plenary hearing. Entress v. Entress, 376 N.J. Super. 125 (App. Div. 2005).
The Court is satisfied that Plaintiff's having undermined Defendant's authority as Parent of Primary Residence by taking [N.B.] out of school and bringing her to Court against the wishes of Plaintiff [sic] constituted exigent circumstances.
Plaintiff also contends that the Court was wrong to issue an Order awarding sole custody to Plaintiff [sic] when the initial paper work submitted by Defendant did not seek sole custody. The Court does not find that it lacked the authority to make such an award based on the findings it made.
Additionally, Defendant [sic] alleges that there was no change in circumstances or threat to the welfare, safety, and happiness of [N.B.] that would justify the change of custody.
The Court did find that a change of circumstances had occurred, namely a breakdown in the ability of the parties to cooperate -- which is fundamental to a joint custodial arrangement. The Court is satisfied that the Court was not in error to conclude that without such cooperation the happiness and welfare of a child cannot be served in a joint custodial arrangement.
We conclude that the trial judge erred in summarily terminating plaintiff's joint legal custody and reducing his parenting time even though defendant had not filed a motion seeking such relief, as well as in subsequently denying plaintiff's request for reconsideration. The parties had been operating under the 1997 consent order for almost ten years without court involvement until defendant's current motion. Defendant acknowledged that her November 2006 motion had been triggered by a "crisis" that "appeared to have passed" as of the time of the January 2007 proceeding.
Under these circumstances, we find no basis to justify the trial judge's characterization of plaintiff's conduct, in taking N.B. out of school and bringing her to court, as "exigent circumstances." The judge based his decision entirely on this conduct by plaintiff. In fact, when plaintiff inquired of the judge why the custody arrangement was changing, the judge responded: "Sir, I guess because you showed up with you daughter today. . . . [I]t showed me that you're unable to cooperate with the child's mother at this particular point and that contraindicates joint custody." On that basis, the trial judge abruptly ordered a substantial modification of the custody arrangement that had been in place for the past nine years. This was unjustified by the record.
The trial judge relied upon our decision in Entress, supra, to support his summary modification of custody. However, that decision actually supports the conclusion that the trial court erred in summarily changing the parties' joint legal custody and parenting time arrangements. In Entress, the parties were involved in a protracted custody and parenting time dispute. Id. at 128-29. The mother, who was the custodial parent, was in violation of several court orders to produce the children for therapy sessions to assist the court in resolving that dispute. Id. at 129-130. The therapist wrote directly to the court expressing his frustration over the mother's failure to cooperate. Id. at 130. Based on that expression of frustration by the therapist, the Family Part judge summarily, and without a plenary hearing, entered an order temporarily transferring custody to the father for the purpose of transporting the children to the therapy sessions. Id. at 131.
In reversing that temporary change-of-custody order, we underscored this court's long-standing recognition that "changes in custody are not to be made without a plenary hearing, absent exigent circumstances." Id. at 133. We rejected the "'frustration' of a psychologist" as an "exigent circumstance" justifying a change in custody in that case. Ibid.
Although the judge in this case did not order a change in N.B.'s residential custody, as occurred in Entress, supra, nonetheless the judge did summarily terminate plaintiff's long-established right to share legal custody of the child. In addition, as noted, that order also truncated plaintiff's weekend parenting time by eliminating up to three overnights per month.
Defendant, through counsel, acknowledged at the outset of oral argument that she was not looking for a change of custody because she felt joint custody was in N.B.'s best interest. Only when the judge sua sponte offered to give her a "sole custody order," because of his pique at plaintiff for bringing N.B. to court, did defendant change her position and request sole custody.
Under the circumstances, the trial judge's termination of plaintiff's right to joint legal custody, along with the modification of his parenting time, was an abuse of discretion warranting reversal. As our Supreme Court recently noted, an "abuse of discretion . . . is . . . [a] decision 'made without a rational explanation, [that] inexplicably departed from established policies, or rest[s] on an impermissible basis.'"
United States v. Scurry, 193 N.J. 492, 504 (2008) (quoting Flagg v. Essex County Prosecutor) 171 N.J. 561, 571 (2002). The trial judge's decisions of January 30 and March 20, 2007, suffer from each of these defects.
We also conclude that a different Family Part judge should preside over the remand proceedings. The trial judge evinced an attitude of impatient criticism towards plaintiff for bringing N.B. to court. The judge afforded plaintiff no reasonable opportunity to explain his reason for doing so.
We find this conduct by the trial judge to be improper under the circumstances. "It is enough to say that the judge's rebukes and aspersions were out of proportion" to plaintiff's actions. James v. City of East Orange 246 N.J. Super. 554, 563 (App. Div. 1991). Therefore, "[i]n an abundance of caution, we direct that this matter be remanded to a different judge for [further proceedings] to avoid the appearance of bias or prejudice based upon the judge's . . . expressions of frustration with plaintiff." Entress, supra, 376 N.J. Super at 133.
Reversed and remanded.