February 6, 2009
RICHARD RIMMER, PLAINTIFF-APPELLANT,
LESLIE LOESCH, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Morris County, Docket No. FM-14-04-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 22, 2009
Before Judges Baxter and King.
Plaintiff, Richard Rimmer, appeals from a November 16, 2007 order that denied his motion to transfer residential custody of the parties' then five-year old daughter. In the alternative, he sought an order that would: increase his parenting time to fifty percent; direct a best interest/custody evaluation pursuant to Rule 5:8-1; find defendant, Leslie Loesch, in contempt of court and in violation of litigant's rights because she refused to attend sessions with the parenting coordinator and had interfered with his parenting time; and schedule a plenary hearing on his request to transfer custody. The order under review is interlocutory, and Richard failed to seek leave to appeal as required by Rule 2:2-4. Consequently, we decline to address the claims he raises on appeal and remand the matter to the Family Part for the completion of the proceedings contemplated by the order of November 16, 2007.
The parties' marriage was brief and stormy. They were married on April 4, 2002, and before their daughter was born on November 20, 2002, they had already separated. The February 18, 2004 Judgment of Divorce (JOD) provided that the parties would share joint legal custody of their daughter with Leslie serving as the parent of primary residence. Because of our disposition of this appeal, we will not describe in detail the parties' rancorous and contentious relationship involving their daughter.
Suffice it to say, between 2002 and 2007 each party filed a domestic violence complaint against the other; Leslie filed a child abuse complaint against Richard with the Division of Youth and Family Services that was later found to be unsubstantiated; the parties bickered over the scheduling of parenting time and fought over the church their daughter would attend; and Richard accused Leslie of interfering with the exercise of his parenting time by scheduling various events during the time that he was entitled to spend with the parties' daughter. In addition, Richard claimed that Leslie, aided by her mother, engaged in conduct that belittled him in front of his daughter and had the potential to alienate her from him. Those allegations became the subject of the instant motion Richard filed in October 2007.
After hearing argument from both sides, Judge Hansbury found that Leslie was "frustrating" Richard's exercise of his parenting time:
[W]e've got two parents here who need to raise this child together. What do we do to put in place to get that done? [sic] That's the question, because he's got just as much a right to the child as she does. . . That's what the child custody statute and the Legislature says. But the tone of these papers in their totality says she's frustrating that. So we need to do something to get put in place so he can get involved more actively in [the child's] life.
Regarding the issue of a custody trial, the judge stated:
[I]f you're worried about a parent[ing] coordinator there's going to be an expert that's going to cost more than a parent[ing] coordinator. The child [sic] is uncertain. It will take six to eight months before we get it to trial. . . . It's not a good process.. . . I told someone this morning . . . I said to them, you know who's the most important to your child? Me. I have actually decided kids' names. . . . And I'll be glad to make decisions about your child if you want, but I'm the last one that should, you guys should. But, believe me, I will because that's my job. That's why I don't want to set in motion a custody process without trying virtually everything I can think of short of a custody trial.
The judge further explained that custody trials "don't help anybody" but are "necessary if we can't resolve it otherwise." Additionally, the judge stated that he was "not going to give up on it yet."
Judge Hansbury then ruled there would be no transfer of custody because he was "not satisfied that there [was] a change in circumstance." He also declined to order fifty percent parenting time "at this point." The judge did order the parties to participate in the court's free mediation service, explaining that he would stay involved "to see if [they couldn't] work this through a little bit [to] avoid the agony of the . . . custody trial."
Furthermore, the judge held that, although defendant was not in contempt, she was in violation of litigant's rights because she failed to pay the parenting coordinator and interfered with plaintiff's parenting time. Judge Hansbury awarded plaintiff $500 in counsel fees as a result of defendant's violation of litigant's rights.
On the same day that the judge conducted the motion hearing, November 16, 2007, he entered three orders memorializing the rulings he made that day. The first, which Richard does not challenge on appeal, afforded the parties the right to take their daughter to their respective churches during parenting time. The second order, which Richard also does not challenge on appeal, ordered the parties to participate in mediation at the Morris County courthouse. That order further provided that "if the mediation is not successful, the court shall receive no information or input concerning the same except that mediation has been unsuccessful." This second order also directed the mediator to contact the court when the mediation was completed, noting that "a phone conference between counsel and the court will occur after mediation." The third order signed that day is the only of the three that Richard challenges on appeal. As we have discussed, that order denied his motion to transfer custody, or, in the alternative, set the matter down for a custody trial.
"[O]ur judicial system recognizes that, with very few exceptions, only an order that finally adjudicates all issues as to all parties is a final order and that a interlocutory appeal is permitted only by leave of our appellate courts." Grow Company, Inc. v. Chokshi, 403 N.J. Super. 443, 457-58 (App. Div. 2008) (footnote omitted). "To ensure that interlocutory review [is] limited to those exceptional cases warranting appellate intervention, the sole discretion to permit an interlocutory appeal has been lodged with the appellate courts." Id. at 458. Moreover, because "[i]nterlocutory review is 'highly discretionary,'" such review is "'exercised only sparingly.'" Id. at 461 (quoting State v. Reldan, 100 N.J. 187, 205 (1985)).
Here, it is readily apparent that the November 16, 2007 order under review is interlocutory. Unquestionably, further proceedings were anticipated. The order itself specifies that the judge required the mediator to report to him on the results of the mediation process so that he could schedule a telephone conference with counsel to discuss the matter further. During appellate oral argument, plaintiff argued that the order in question was not interlocutory because it squarely denied his request to transfer custody and declined to set the matter down for a hearing. When we asked both counsel during argument whether the conference referred to in the November 16, 2007 mediation order had occurred, both said no, most likely because plaintiff has filed an appeal, thereby depriving the Family Part of jurisdiction. Defendant took no position on whether the order was interlocutory but urged us to affirm the order under review.
We recognize that the portion of the November 16, 2007 order that denies plaintiff's request for a change of custody and refused to set the matter down for a plenary hearing would ordinarily be considered a final order; however, when combined with the mediation order also entered that day, unquestionably the order under review assumes an interlocutory character.
In particular, the order referring the parties to mediation, and laying the groundwork for a telephone conference between the judge and the parties, unmistakably demonstrates that further proceedings were contemplated. Contrary to plaintiff's arguments on appeal, the judge did not rule out the possibility of conducting a trial in the future. As the judge commented, "[T]hat's my job." He added that he was not inclined to "set in motion a custody process without trying virtually everything [he] can think of short of a custody trial." He viewed the mediation process as a mechanism to help the parties "avoid the agony of . . . a custody trial." Indeed, the judge simply referred the parties to mediation as he was required to do by Rule 5:8-1. That rule prohibits a judge from setting a matter down for a custody trial unless mediation has been attempted and has failed.*fn1
When the order challenged on appeal is considered in light of the judge's comments about hoping to avoid "the agony" of a custody trial and the provisions of Rule 5:8-1, the interlocutory character of the order is unmistakable. It did not resolve all issues as to all parties. Chokshi, supra, 403 N.J. Super. at 457-58. Because plaintiff neither sought nor obtained leave to appeal, we decline to consider the merits of the order under review. We believe the more prudent course, and the course required by Rule 2:2-4, is to dismiss this appeal as interlocutory and remand the matter to Judge Hansbury so that he may continue the proceedings that he discussed and that were contemplated in the order of November 16, 2007. On remand, the judge is directed to schedule the telephone conference referred to in the order of November 16, 2007. After that telephone conference is completed, the judge should decide whether to schedule a plenary hearing.
In making that decision, the judge shall be guided by the principles we established in Hand v. Hand, where we held that "[a] plenary hearing is required when the [parties'] submissions show there is a genuine and substantial factual dispute regarding the welfare of the children, and the trial judge determines that a plenary hearing is necessary to resolve the factual dispute." 391 N.J. Super. 102, 105 (App. Div. 2007).
On remand, the judge should evaluate whether Richard has demonstrated "the existence of a genuine issue as to a material fact[.]" Lepis v. Lepis, 83 N.J. 139, 159 (1980); see also R. 5:8-6 (providing that a court shall conduct a plenary hearing on the issue of custody when it "finds that the custody of the children is a genuine and substantial issue . . . ."). We intimate no view on the question of whether a plenary hearing is required and we leave that issue to be evaluated by Judge Hansbury in the exercise of his discretion.
Appeal dismissed. Remanded for further proceedings not inconsistent with this opinion. We do not retain jurisdiction.