On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, No. FM-12-1451-05E.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 5, 2009
Before Judges C.L. Miniman and Waugh.
Defendant Neyda L. Figueroa appeals from a November 13, 2008, order denying her application seeking physical custody of the parties' children, appointment of a psychologist to perform a best-interest evaluation, and counsel fees. We reverse.
Defendant and plaintiff Mark A. Herega, Sr., were married on December 5, 1996, and had two children, M.H. born in 1997 and E.H. born in 2000. They were divorced on May 12, 2005. The judgment of divorce (JOD) incorporated the previously negotiated property settlement agreement (PSA) dated November 1, 2004. The parties agreed in the PSA to share joint custody of the children, with the children residing with plaintiff at the marital residence. The parties further agreed to equal parenting time and a live-in nanny to assist in caring for the children.
On March 26, 2007, defendant filed a post-judgment motion seeking physical custody of both children. Plaintiff cross-moved on May 4, 2007, to retain primary residential custody of the children and other relief. The Family Part judge denied both motions on May 29, 2007. On June 18, 2007, defendant sought reconsideration of this order and plaintiff cross-moved to enforce the PSA and the May 29, 2007, order. The judge denied both motions on August 17, 2007. On October 1, 2007, defendant filed an appeal challenging the denial of her reconsideration motion. We remanded for a plenary hearing on the continuing need for a nanny at plaintiff's residence and plain-tiff's relationship with the nanny. Herega v. Figueroa, No. A-0538-07T1 (App. Div. Nov. 7, 2008) (slip op. at 20).
During the pendency of that appeal, two motions were filed. First, on December 7, 2007, plaintiff sought sole custody of the children, but the Family Part judge denied his motion. Second, on August 28, 2008, defendant filed a new motion seeking physical custody of the children and appointment of a psychologist to perform a best-interests evaluation. On September 25, 2008, plaintiff cross-moved to hold defendant in contempt of court for failing to pay certain expenses and for a plenary hearing to establish a parenting-time schedule.
In support of her application, defendant certified that plaintiff advised her that he would have the children for his vacation time from July 5 through July 11, 2008, but he unilaterally decided to keep them until Sunday, July 13, 2008. She claimed that plaintiff likes to keep her in the dark on issues surrounding their children, but the emails she attached to prove this claim do not support it, although they do demonstrate a high level of acrimony on defendant's part.
Defendant also certified the children were hostile to each other and E.H. had unexplained bruises on his legs. They told her that they are always watching television and their father spent minimal time with them, and then only watching television. She related that plaintiff told her he had been taking the children to the shore frequently because they enjoyed it, but she accused him of using the children as additional workers for repairs on the homes he owns at the shore, although she had no evidential support for this claim.
She expressed concern about M.H.'s schooling, claiming he had gone to school from plaintiff's home thirteen times without his homework, but attached a copy of only one note from the school dated March 4, 2008, and an email she sent plaintiff about the missed homework. She claimed plaintiff thereafter removed notices from their folders, attaching an email she sent on July 3, 2008, about missing report cards and the failure to provide her with the summer camp schedule. She claimed, without any evidential support, that plaintiff told the children's school he had custody of the children and the school then stopped forwarding notices to her directly.
Defendant related a conversation she had with M.H.'s teacher and attached several assignments on which M.H. received low or failing grades. She asserted plaintiff never discussed M.H.'s poor grades with her, although he must have been aware of them since he received M.H.'s folder two-thirds of the time. She claimed that the teacher told her M.H. was late four times and absent seven times, but she did not attach his attendance record, which would have permitted the judge to ascertain when this occurred.
Defendant next certified that the school sent home a notice that E.H. did not have all required immunizations and satisfactory evidence of same was required by December 21, 2007, or E.H. would not be permitted to attend school commencing January 2, 2008. Defendant learned of this in January and confronted plaintiff about it. E.H. in fact did not ...