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Evangelista v. Baglivo

May 1, 2008

NICHOLAS EVANGELISTA, PLAINTIFF-APPELLANT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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