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McCain v. Schultz


October 13, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FD-02-1224-09.

Per curiam.


Argued August 31, 2010

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?


[Defense counsel]: Well --

THE COURT: No, it will include what we agreed to.

[Defense counsel]: Well --

[Plaintiff's counsel]: That's what I meant, Your Honor.


[Defense counsel]: -- well, Judge, and see that's what I'm concerned about because my client really had this -- it was just basically what [plaintiff] wanted. We wanted that extra day.

THE COURT: You got it.

[Defense counsel]: But . . . we wanted the extra day during the week. The weekend --

THE COURT: You didn't get it.

[Defense counsel]: That's what I'm saying.

THE COURT: You got the one, you didn't get the other.

[Defense counsel]: But that's what I'm saying, Judge, it doesn't seem fair that he doesn't --

THE COURT: Did you say fair? Did you use the word fair?

[Defense counsel]: I misspoke, Judge.

THE COURT: You want -- good.

[Defense counsel]: I misspoke.

THE COURT: Because it's never fair.

[Defense counsel]: What my client's concern is is that his parenting time with his child is being subscribed by what she wants as opposed to what --

THE COURT: He got another day today. Friday, Saturday, Sunday night. We, also, -- because I actually do remember some of this stuff. We, also, dealt with the pickup and delivery, rather successfully, I thought. . . . And he still has Thursday dinners, okay? We're making progress. Now, we're going to go to mediation and, hopefully, we'll make more progress.

At a second hearing on August 12, 2009, the parties reported that their parenting time dispute was not resolved in mediation. Defendant's counsel also advised that she planned to file a change of circumstances motion that same day because of the birth of his second child. Plaintiff's counsel refused the trial court's offer to review the child support guidelines and issue a revised order, as she asserted that defendant, a union electrician, had not fully disclosed his income. Hence, the entire matter was carried to October 30, 2009, with the understanding that discovery would be completed by that date.

The trial court also ordered the parties to participate in a parenting evaluation by the Bergen Family Center, to be completed by the October 30 hearing, at a cost to each of $1500 of the total $3000 fee. After defendant's motion for modification of child support was filed, it was consolidated and scheduled for hearing with the custody dispute. Unfortunately, the court-appointed expert did not complete the evaluation until November 16, 2009. Although the parties completed depositions, the hearing date, which had been postponed to November 19, 2009, was rescheduled for December 9, 2009.

By letter dated November 25, 2009, nine days after the court-ordered evaluation was issued, defendant's attorney requested an adjournment of the December 9 hearing date. As noted above, the adjournment was requested to permit defendant to retain his own expert as he disagreed with the Bergen Family Center recommendations. Plaintiff's counsel objected in writing to any additional postponement beyond December 9 because of the age of the case.

Defendant and his attorney appeared for the hearing, but plaintiff and her attorney did not. Defendant's attorney advised us at oral argument on the appeal that trial court personnel telephoned to inform her that the matter was being dismissed because of her client's request for a postponement of the December 9 date. Defendant and his attorney therefore appeared to oppose entry of an order dismissing the case.

The trial court opened its remarks to defendant's attorney by saying, "[a]nd I understand you want to know why your case is being dismissed?" The judge went on to discuss and to read into the record counsel's November 25 letter explaining that because defendant disagreed with the court-ordered evaluation, he wanted to retain his own expert.

The trial judge added that there were "rules" that he had "to live by" which mandated the dismissal.*fn1 He invited counsel to take the matter up with those responsible for making the rules the judge was required to "live by."

Defendant's attorney continued to object to the dismissal on the basis that defendant could not effectively pursue a claim for custody and/or an increase in parenting time without his own expert report. The relevant portion of the colloquy is set forth below:

[Defense counsel]: Well, Your Honor, I guess what I'm a little confused about, I understand that you are not dismissing the docket number . . . but you're dismissing the complaint.

THE COURT: All I'm doing, basically, is putting it on the shelf because you're not ready to proceed. When you're ready to proceed you take it off the shelf. I'm also ready to proceed -- I am ready to proceed today.

[Defense counsel]: I understand that, Judge.


[Defense counsel]: But here's what my client's concern is, as I indicated in my letter the Bergen Family Center's report --

THE COURT: I read it.

[Defense counsel]: -- was not what we thought it was going to be.


[Defense counsel]: And that's why pursuant to the rule we were requesting the opportunity to adjourn the trial --

THE COURT: And I'm not taking that opportunity away from you. The only thing is administratively I have a certain amount of time . . . within which to handle these matters. . . . So, fortunately, for you, Mr. Schultz, my "dismissing," quote/unquote, your case for the time being doesn't disadvantage you in any way. What it does is it takes you off of our schedule.

The only thing it will do is when [defense counsel], assuming you're going to continue with her, and her adversary are ready to go -- are you making faces at me?

[Defense counsel]: No, Judge, I was just shocked that you would make that comment. I thought that was an interesting comment.

THE COURT: Okay. Well, I'm sorry, it was no way meant to -- you know, clients are not chattel, as we're told, and they're free to choose attorneys. So I'm not going to presume or assume. I always ask and --

[Defendant]: I'm happy with my attorney.

THE COURT: -- try to protect attorneys. Great. I'm happy you've got a good relationship. And I want to make sure you understand that you get to come back whenever you're ready to come back.

[Defense counsel]: I understand that.

THE COURT: And I'll proceed today. If you want to get on the phone and call your adversary, find out [why] they're not here and it's not a good reason I'll proceed today --

[Defense counsel]: But Your Honor --

THE COURT: -- because I denied your application for an adjournment.

[Defense counsel]: -- I understand that you denied my application for the adjournment, Your Honor. But I guess what my concern is, is that if the rules provide for my client to be able to get the adjournment to get an expert based on a court --

THE COURT: No, you're saying the rule provides -- but, see, if you were talking in an FM context or an L context I would agree with you. I don't agree with you. I am here all day. I will handle your case today. Make no mistake. I will handle your case today. Okay?

[Defense counsel]: But --

THE COURT: I have to go talk to someone. Thank you.

The proceedings ended at that point. The order entered provides that the dismissal of the matter is without prejudice and it applies to both defendant's application for modification of child support and the issue of custody and parenting time.

As a result, the custody order initially intended to be temporary was left in place and defendant's application to reduce child support was not heard.

On appeal, defendant again contends that he was entitled to proceed on the counterclaim and to obtain an adjournment for the purpose of obtaining his own expert report as to custody pursuant to Rule 5:3-3(d) and Rule 5:3-3(h). He asserts that the dismissal of proceedings prejudicially deprived him of the opportunity to litigate custody after substantial investments in time and money, including depositions, payment of the court- appointed expert's fee, and attorney's fees. Furthermore, the dismissal cost him the opportunity to expeditiously address child support after the birth of his second child. We agree.

First, the judge was wrong to rely on a time-goal for the completion of non-dissolution cases as a "rule" justifying his decision to dismiss the case and continue a temporary custody order that was entered without a plenary hearing and a child support award premised on conditions that had changed. Judicial determinations that are left to the sound exercise of discretion must be made in light of governing statutes, court rules and judicial opinions. See State v. Madan, 366 N.J. Super. 98, 108-10 (App. Div. 2004) (discussing boundaries of judicial discretion).

Rule 5:8-6 provides for a hearing on a custody dispute to be scheduled no later than six months after the filing of the last responsive pleading. This hearing was scheduled within the specified time. Rule 5:8-6 does not require or authorize dismissal of a case as a remedy to be invoked when a case is not adjudicated within that time. But Rule 5:8-6 must be construed "to secure a just determination, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay." R. 1:1-2(a). Even if Rule 5:8-6 required dismissal, it is a rule that can be relaxed when adherence will result in an injustice. See R. 1:1-2(a); R. 5:8-6.

This is not a case in which a judge found facts warranting dismissal based on a party's dilatory conduct or determined that the temporary order pending hearing should be continued. The judge previously had noted the need for a hearing and expert evaluations, and he did not find that the delay was attributable to defendant. Moreover, the judge erred by failing to consider the relevance of Rule 5:5-3, which defendant correctly argued indicates that defendant was not bound by the recommendation of the court-appointed expert and could obtain an expert of his own. While there may be a case in which an eleventh-hour adjournment request following inexplicable delay may be denied, the judge did not even consider those issues.

Second, the judge was wrong in his estimation of the consequences of his order dismissing the matter without prejudice. With respect to custody and parenting time, the judge's conclusion that defendant could obtain plaintiff's cooperation without an order requiring it makes no sense. In the absence of pending litigation, plaintiff has no reason to cooperate and defendant has no means of compelling cooperation.

Certainly, defendant could have refiled the counterclaim as a complaint and initiated further proceedings in that manner. But no purpose was served by the judge requiring him to do so, particularly in light of the uncertainties as to how prior orders and the evaluation would be viewed, and whether the court would require defendant to repeat mediation or obtain an updated reported from the court-appointed expert. Ultimately, the course of action chosen further delayed the resolution of the parental dispute and thereby defeated the goal the judge attempted to further.

The judge was also mistaken about the legal consequence of dismissing defendant's motion to reduce child support as well.

N.J.S.A. 2A:17-56.23a provides:

No payment or installment of an order for child support, or those portions of an order which are allocated for child support . . . shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification, but only from the date the notice of motion was mailed either directly or through the appropriate agent. . . .

In light of this statutory limitation, the judge's dismissal of the pending motion, albeit without prejudice, raised a rather thorny, and unnecessarily so, legal issue about the permissible effective date of the relief he sought. Moreover, it delayed relief to which defendant was apparently entitled under Rule 5:6A and the section of Appendix IX-B, which requires a judge to consider a parent's other dependents when fixing child support.

Because the order of dismissal without prejudice is the product of a patently mistaken exercise of discretion, we vacate the order, reinstate the pleadings and remand. Forthwith, the judge shall schedule a case management conference and enter a case management order setting forth the parties' respective obligations preparatory to trial and rescheduling the final hearing.

Reversed and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.

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