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Garcia v. Pena

October 1, 2008

ROSALBA GARCIA, PLAINTIFF-APPELLANT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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


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