On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FD-02-1224-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Alvarez.
Defendant Theodore A. Schultz appeals from the December 9, 2009 dismissal of his counterclaim for custody, filed on June 9, 2009, and his subsequent motion for modification of child support, which was filed while the final hearing on custody and parenting time was pending. Plaintiff Yolanda McCain filed the initial complaint in a Family Part non-dissolution proceeding pursuant to Rule 5:6. She sought an order: (a) granting the parties joint custody of their six-year-old child, primary residential custody to remain with her; (b) allocating parenting time; (c) requiring defendant to pay child support to plaintiff; and (d) directing defendant to contribute to the payment of the child's uninsured medical expenses. The order dismissing the case was entered in response to defendant's request for an adjournment to obtain an expert to rebut the recommendations of a court-appointed custody expert as authorized by Rule 5:3-3(d) and (h). Because the dismissal was an abuse of discretion, we reverse and remand for further proceedings.
The history of the case is important to our decision. The matter was initially scheduled before a hearing officer but was transferred to the court calendar. Accordingly, on July 16, 2009, the parties and their counsel appeared for a preliminary hearing before a judge. The trial judge elicited each party's position from counsel on the several issues in dispute, and from time to time, he directly asked each party specific questions.
Both parties were administered the oath at the start of the proceedings.
Although plaintiff and defendant lived apart after the first year and a half of their child's life, the July 16, 2009 order was the first to address support, custody, or parenting time. In calculating support, the trial court found plaintiff's weekly income was $1149 and defendant's was $1594. The judge properly declined to give defendant a reduction in child support reflecting his future obligation to support a child expected but not yet born. At the close of the July 16 proceeding, the court awarded plaintiff $170 per week in child support payable through Bergen County Probation, plus $10 per week towards arrears accumulated since the filing date of the complaint on May 13, 2009.
When the trial judge described the parenting time schedule he intended to order, defendant's attorney expressed her client's "concern that this was a final order." Implying that the provisions governing parenting time were intended to be temporary pending a final resolution, the judge directed the parties to participate in mediation as to parenting time, deferred consideration of the effect the anticipated birth of defendant's second child would have on child support, and said:
THE COURT: Yes. If something changes -- I mean if I change the situation in such a way that constitutes a change of circumstances then that would trigger a recalculation of the child support guidelines.
If you need to come back . . . and you can't resolve it in mediation this is an FD, you know, you can just come back. . . . You have to submit an application.
[Defense counsel]: So we have to refile again, Judge, because --
THE COURT: Well, it's free. . . . There's no fees charged for it.
[Defense counsel]: I understand what the Court's saying, but my client and I did spend a significant period of time in his certification.
THE COURT: And it will be in the file.
[Defense counsel]: And I guess what my concern is that --
THE COURT: They automatically send you back. . . . But here's what I want you to understand, I wouldn't decide this case on his certification anyway. It would have to be on his testimony . . . and a certification . . . might be helpful to me in reviewing his testimony, but I would never just decide it on his certification.
[Defense counsel]: No, I didn't want you to. . . . My thought was that we were going to have a plenary hearing on the issue of custody, because --
THE COURT: You may, you may not.
[Defense counsel]: -- that was what my client's concern -- I mean if we can --
THE COURT: Well, don't forget the next step. If the mediation fails . . . I'm going to send you to Bergen Family Center. . . . It's going to take, I don't know how busy they are right now, but usually figure there [sic] months for them to interview everybody and generate a report. . . . And you're talking, based upon your income levels three thousand dollars. And . . . you can anticipate it would be allocated 45/55.
[Defense counsel]: And, then, when my client's daughter is born we come in -- we have to file --
THE COURT: That's a change of circumstance. . . . All right. So I'll finish the order and get you on your way, okay?
[Plaintiff's counsel]: And, Your Honor, would the order include the parenting time as it exists now?