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Weiss v. Weiss


July 15, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-1243-97.

Per curiam.


Submitted June 15, 2009

Before Judges Carchman and Parrillo.

This appeal arises from ongoing post-judgment litigation between plaintiff David A. Weiss and his former wife, defendant Susan C. Weiss, over primary residential custody of their two sons, D.W., now 17 years old, and R.W., now 16 years old, which, by final judgment of divorce (FJD) of February 21, 2001, was awarded to plaintiff. This parenting arrangement endured for the next seven-and-one-half years until October 3, 2008, when a Family Part judge stayed a portion of her previous order of September 17, 2008, directing the immediate return of the children to New Jersey from their summer visitation at defendant's Massachusetts residence. The September 17, 2008 order also scheduled a plenary hearing on defendant's application to be named primary residential custodian, the court noting that "[t]he conflicting certifications of the parties and contentious nature of this matter make a plenary hearing necessary."

The effect, then, of the court's most recent October 3, 2008 order was to transfer temporary residential custody to defendant and permit the children's temporary enrollment in a Massachusetts school pending the outcome of the plenary hearing. As to the latter, the judge noted in her October 3, 2008 order that defendant has demonstrated "a significant change of circumstances that affects the welfare of the children" and has made "a strong showing that she is likely to prevail on the merits," citing the teenage boys' age and stated preferences, as well as their treating physician's report finding "multiple psychosomatic symptoms caused by a realization that they may have to leave their mother's residence." It is the October 3, 2008 order from which plaintiff now appeals.

In the meantime, however, plaintiff filed an emergent application seeking summary, interim relief from this order and enforcement of previous ones mandating return of the children to him. We denied the request for relief, but ordered that "[t]he trial court shall conduct the plenary hearing as soon as conveniently possible." Due to scheduling conflicts, the plenary hearing has not yet been completed. We have been advised, however, that on January 12, 2009, the Family Part judge appointed a guardian ad litem for the children pursuant to Rule 5:8A, and scheduled a case management conference for April 1, 2009 to fix a firm trial date without further adjournment.

As a critical threshold matter, we note that plaintiff's appeal is not from a final decision. See R. 2:2-3(a)(1). While plaintiff seeks to challenge the removal of his children out-of-state and the transfer of primary residential custody to their mother in Massachusetts, the Family Part's order of October 3, 2008, from which this appeal is taken, effectuates only a temporary modification of the historical parenting arrangement and expressly contemplates a plenary hearing to fully resolve all relevant issues. While we express serious concern over the continual scheduling delays, we trust the Family Part's sensitivity to the need for an expeditious proceeding in this matter, which, we strongly urge, should be heard within the next thirty days.

Nevertheless, because a plenary hearing is still pending, plaintiff's appeal is therefore interlocutory. Hallowell v. American Honda Motor Co., 297 N.J. Super. 314, 317-18 (App. Div. 1997). Furthermore, because of the incompleteness of the record occasioned by the pendency of ongoing proceedings in the Family Part, we are satisfied that the interest of justice will not be served by interlocutory review of the October 3, 2008 order and therefore decline to grant leave to appeal nunc pro tunc. R. 2:4-4(b)(2).

The appeal is dismissed.


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