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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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