October 1, 2008
ROSALBA GARCIA, PLAINTIFF-APPELLANT,
ABILET PENA, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FD-09-2208-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 26, 2008
Before Judges Messano and Chambers.
Plaintiff Rosalba Garcia appeals from that portion of the July 20, 2007 order that designated defendant Abilet Pena as the parent of "primary residential care" for the couple's two daughters, ages ten and eight. The order further granted the parties joint legal custody, provided plaintiff with overnight visitation on alternate weekends, and limited visitation during the week to two hours on two weeknights. Plaintiff contends that the judge 1) failed to properly consider the statutory factors contained in N.J.S.A. 9:2-4; and 2) failed to provide her with "an adequate opportunity for discovery and to prepare before the proceedings commence[d]." We have considered these arguments in light of the motion record and applicable legal standards. We reverse and remand for further proceedings consistent with this opinion.
On May 9, 2007, plaintiff filed a pro se complaint in the Family Part seeking sole custody of the two children and child support from defendant. Defendant responded by filing a pro se counterclaim seeking physical custody of the children, conceding joint legal custody along with reasonable visitation rights to plaintiff. The matters were ultimately listed for trial on July 20, 2007. In the interim, defendant had retained counsel who filed a motion on July 18, 2007, ostensibly opposing plaintiff's requested relief and reiterating defendant's request for physical custody of his daughters. Attached to the motion was defendant's five-page certification.
Plaintiff appeared pro se at trial and defendant was represented by counsel. After advising plaintiff of her right to retain counsel, and plaintiff indicating she did not wish to have an attorney represent her, the judge acknowledged receiving defendant's motion the previous day and asked plaintiff if she had received the material, which she had. However, the following colloquy took place between the judge and defense counsel:
Judge: Actually your certification is a little late. I mean . . . there are rules for motions and cross-motions and certifications and response certifications. Counsel: [I]t just amplifies my client's original position that he filed back in May. And I just tried to do it a little more eloquently for the Court so the Court could have an understanding of this.
Judge: But it's not fair to her because she d[id]n't get this until yesterday.
Counsel: Well, then . . . I would have no objection if you carry this for another date or to allow her the opportunity to review it and if she wanted to submit anything in opposition. Quite frankly, Judge, either that or whatever's in my client's certification he would testify to as well, if Your Honor's going to take testimony today.
Judge: I'm ready to proceed. [Plaintiff] has been given the opportunity to have an attorney. She's received your papers. I'm not so sure how effective the papers are going to be today if they were only sent out yesterday. If you're asking, that will be denied.
Trial then commenced with plaintiff's testimony.
This exchange forms the basis of plaintiff's second argument, i.e., that she was denied adequate notice and not allowed to properly prepare for the proceedings. However, our review of the record reveals that defendant testified to most of what was contained in his certification, and the judge relied upon and evaluated that testimony independently from the certification. While it may have been preferable for the judge to grant a short adjournment, we can find no real prejudice to plaintiff in this regard and, therefore, no basis for reversal.
Plaintiff testified that she and defendant lived together for thirteen years prior to separating in December 2006. She claimed she left because defendant was abusive, drank to excess, and was controlling. Plaintiff claimed there were incidents of domestic violence in the past but she stayed with defendant for the sake of her daughters. Plaintiff testified that she was the primary caretaker of the girls while also working part-time. She obtained full-time employment in May 2006 as a credential specialist working at Overlook Hospital in Summit earning $19.50 per hour.
After the separation, plaintiff needed assistance in taking the children to school and picking them up after school. She requested defendant's help and he agreed. She would bring the girls to defendant's apartment before school where he would get them ready and drive them to school; after school, defendant would pick the girls up and drive them to his apartment until plaintiff picked them up after work.
On May 9, 2007, this otherwise practical solution fell apart. Plaintiff testified that on that day she picked up the girls at defendant's apartment and they were upset. Plaintiff claimed defendant had told them that if they went home with their mother, they would never see him again. She testified that this incident led her to file her complaint so that the custody and parenting time issues could be resolved.
Between the time the parties filed their pro se pleadings, and the date of trial, however, the usual schedule had changed. Plaintiff testified that four days before the trial began, defendant had refused to return the girls to her after a visitation, forcing her to go to the police for assistance. Although they advised her to simply take her daughters from defendant, she did not think this was wise. On cross-examination, plaintiff denied that her daughters had been staying with defendant since the end of the school term in June, approximately four weeks before the trial. In concluding her testimony, she told the judge, "I want a schedule. I want the children to see their father and have a normal life and I want physical custody of my children. I just want a schedule whereby he can give me the child when I come back from work at 5:30 or 6 without my having to call the police."
Defendant testified that the children had been living with him since June 22, 2006 when they completed the school term. He claimed that during that month's time, plaintiff had the children each weekend. Defendant testified that he routinely fed and groomed the girls in the morning, fed them at night, helped with their homework, and interacted with their teachers, something plaintiff also claimed that she did. Since the end of school, defendant testified that he had enrolled his daughters in a summer day camp, which they were attending, and that he brought them to the camp every day.
When asked by the judge why he and plaintiff had separated, defendant claimed he "d[id not] really know. [Plaintiff] just left [him]." Defendant confirmed that prior to the end of the school year, the schedule was as plaintiff described. Defendant claimed the situation in which plaintiff dropped off the children every day was not working because he "d[id not] have enough time to get them ready." His schedule was flexible because he was a cigarette salesman, he could work at home, and he believed the children were happier and better off with the schedule that was in place since school ended.
The judge rendered his oral decision at the conclusion of defendant's testimony. He stated that "[t]he reasons for the separation [we]re not clear in [his] mind," noting the plaintiff's claims of domestic violence were "not very specific or fl[e]shed out." Likewise, he noted defendant had "no seemingly clear explanation as to what caused the relationship to break up[.]" He further noted that "[i]n terms of credibility [plaintiff] does not impress me with being extremely credible when it comes to the circumstance of the children's schooling, contact with the school, follow-up with school activities. It seems [defendant] is the more involved parent."
The judge noted that both parties were satisfied with a schedule that "was worked out mutually and [was] convenient for both." He observed that neither party "had any significant complaint" until the "confrontation on May 8th and May 9th." As a result, the judge concluded that he had "to decide who should be designated the parent of primary custody" because they "cannot parent together." The judge found defendant's testimony "more persuasive," and concluded that "[defendant] ha[d] been a primary caretaker for the children for the last eight months, more so for the past four weeks." He entered the order now under appeal.
We accord great deference to the fact findings made by the judge, recognizing his ability to judge the credibility of the witnesses actually testifying before him, as well as the special expertise he brings to matters in the Family Part. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We therefore must accept his factual conclusion that since the end of the school term, roughly four weeks before the trial, the children had been staying with defendant all day and overnight, and that plaintiff's parenting time was limited to weekends and sporadic time at night during the week. We would therefore concede that during this time, while the parties shared legal custody of the children, defendant was the "primary caretaker," as that term has been used by our Supreme Court. See Pascale v. Pascale, 140 N.J. 583, 598-99 (1995)(setting forth the typical tasks performed by one parent that define the role).
We differ, however, with the judge's determination that prior to this recent change of circumstances, defendant had served the same role. For example, from December 2006 to the end of June 2007, while defendant readied the girls for school and was there when their school day ended, it was plaintiff who woke them in the morning, had physical custody of them during the evening hours, put them to bed each night, dealt with any problems during the overnight hours, and woke them every morning. Defendant, in fact, did not see them during the day because both children were in school.
Therefore, at the time the pleadings were filed, certainly defendant was not the primary caretaker of the children and the change in circumstances that occurred in late June, and more importantly, the reasons for that change, became critical in determining who should serve as primary custodial caretaker of the girls. The reasons for the change were hotly contested, plaintiff alleging that defendant was actually keeping the girls from her, defendant alleging that plaintiff was unable to keep the schedule previously utilized. While the judge made general credibility findings that supported defendant, he did not determine the reason for this change of schedule. Further, defendant needed to justify why the best interests of the two children were now served by a drastically altered custodial arrangement. As a result of the de facto change, the children, who had spent some weekends, as well as every evening, every overnight, and every waking morning with their mother, were now limited to seeing their mother only on weekends and sporadically during the week.
We recognize that the court was faced with competing applications for an initial order regarding the custody of the two children. However, N.J.S.A. 9:2-4(d) requires "[t]he court [to] order any custody arrangement which is agreed to by both parents unless it is contrary to the best interests of the child." Certainly, prior to the filings in May, both parties had agreed to a custody arrangement, and, despite the turmoil that occurred and led to the complaint and counterclaim, the exact same arrangement continued at least until the end of June. N.J.S.A. 9:2-4(f) requires that "[t]he court shall specifically place on the record the factors which justify any custody arrangement not agreed to by both parents." This was not done and requires reversal.
In formulating the appropriate custodial determination, the touchstone informing the decision must always be the best interests of the children. Kinsella v. Kinsella, 150 N.J. 276, 317 (1997); N.J.S.A. 9:2-4(c). "Custody issues are resolved using a best interests analysis that gives weight to the factors set forth in [the statute]." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (citing V.C. v. M.J.B., 163 N.J. 200, 227-28, cert. denied, 531 U.S. 926, 121 S.Ct. 302, 148 L.Ed. 2d 243 (2000)).
In this case, the judge attempted to resolve a scheduling dispute between the parties that had turned into a conflagration upsetting the previous convenient, consensual arrangement that had apparently served the best interests of both of their daughters for close to one year. However, in doing so, he significantly altered the pre-existing arrangement and he failed to thoroughly consider the statutory factors contained in N.J.S.A. 9:2-4(c). We note that both children were of an age that permitted the judge, in his discretion, to interview the girls, particularly in light of the parties' divergent contentions. R. 5:8-6. We cannot assess why this did not occur because the judge did not explain his reasons for not doing so. Ibid.
We therefore reverse the order under review and remand the matter to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction. We leave the exact contours of the proceedings on remand to the sound discretion of the trial judge. He may take further testimony, require expert reports, or interview the children, for example, as he deems necessary for consideration and evaluation of the statutory criteria.
Reversed and remanded.
© 1992-2008 VersusLaw Inc.