On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-538-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and Kennedy.
Defendant appeals from a post-judgment order that changed the custody arrangements agreed upon in the parties' property settlement agreement (PSA) without a plenary hearing. For the reasons that follow, we reverse and remand.
Plaintiff and defendant were married in 1992 and had four children. When they divorced in January 2008, the terms of their PSA were incorporated into their Final Judgment of Divorce (JOD). The PSA provided that the parties would have joint legal and residential custody of their four children, Rick,*fn1 Sam, Colin, and Missy, with defendant serving as the parent of primary residence.
In February 2009, plaintiff filed a motion, seeking sole legal and residential custody of the parties' children, the appointment of a parenting coordinator and an expert to perform a custody evaluation, and other relief. Defendant filed a cross-motion to enforce several provisions in the PSA, including the parties' agreement that defendant serve as the primary caretaker. The motion judge denied plaintiff's request for sole legal and residential custody of the children and ordered that all provisions of the PSA were to be enforced. The judge also appointed Sharon Montgomery, Psy.D., to serve as a parenting coordinator.
In May 2010, the parties agreed "in accordance with the recommendation of Dr. Montgomery" for an updated evaluation for the purpose of ascertaining "the most appropriate treatment plan and parenting plan." The evaluator's findings, conclusions, and recommendations were to be submitted to the parties in writing. The resulting consent order appointing Dr. Alex Weintrob, M.D. stated:
If the parties agree with the evaluator's recommendations, then the parties shall enter into a Consent Order to implement them. If the parties disagree with the evaluator's recommendations, then either party may make an application to the Court seeking a Court Order to address the subject of whether or not the recommendations shall be ordered by the Court.
Approximately one year later, the trial court sua sponte appointed Terryann Bradley, Esq. to serve as guardian ad litem for the parties' four children.
On May 9, 2011, Dr. Weintrob submitted a 134 page evaluation to the court, which was later supplemented by an addendum dated May 19, 2011. Dr. Weintrob recommended that physical and legal custody of Colin and Missy be changed from defendant to plaintiff. He did not recommend a change of physical custody for Sam or Rick, but recommended that legal custody of them be given to plaintiff.
Defendant filed a motion to maintain the parties' custody arrangements and further sought a plenary hearing to resolve the custody issues. In addition to discovery, defendant sought leave to retain her own custody expert. Plaintiff opposed defendant's motion and, on June 23, 2011, he cross-moved to implement Dr. Weintrob's recommendations.
With these motions pending, the court entered two sua sponte orders that expanded Bradley's role as guardian ad litem. Bradley was ordered to address the parties' custody issues and to provide a written certification in response to the parties' motions concerning Dr. Weintrob's recommendations. When she submitted her report, she concurred with Dr. Weintrob's recommendations.
After Bradley's report was submitted, defendant wrote a letter to the court, and requested an opportunity to meet with Bradley to address what she termed "factual inaccuracies" in the report and asked for Bradley to speak to additional persons, including the children.
The motion judge rejected defendant's request to meet with Bradley. Adopting the recommendations of Bradley and Dr. Weintrob, on July 22, 2011, the court denied defendant's motion, ruled that a plenary hearing was unnecessary, and granted plaintiff sole legal and physical custody of Colin and Missy.
Plaintiff was also granted sole legal custody of Sam, over whom defendant would maintain physical custody. The parties were to share legal custody of Rick, with defendant serving as his primary caretaker.
On August 15, 2011, defendant filed an order to show cause, seeking to restrain and enjoin plaintiff from enrolling Colin and Missy in any school other than the Millburn public schools. This was ultimately heard by the motion judge as a motion for reconsideration of the July 22, 2011 decision. The judge denied defendant's request for oral argument, and denied defendant's motion for reconsideration.
In this appeal, defendant presents the following arguments for our consideration:
THE TRIAL COURT ERRED IN ORDERING THE IMMEDIATE TRANSFER OF CUSTODY WITHOUT AN EVIDENTIARY HEARING IN THE ABSENCE OF EXIGENT CIRCUMSTANCES POINT II
THE TRIAL COURT ERRED IN ORDERING A TRANSFER OF CUSTODY BASED UPON CONFLICTING CERTIFICATIONS AND THE HEARSAY REPORTS OF THE CUSTODY EXPERT AND GUARDIAN POINT III
THE TRIAL COURT ERRED IN ORDERING A TRANSFER OF CUSTODY BASED UPON
THE HEARSAY REPORTS OF THE CUSTODY EXPERT AND GUARDIAN AND DENIED [DEFENDANT] FUNDAMENTAL DUE PROCESS RIGHTS IN REFUSING HER REQUEST FOR HER OWN EXPERT, DENYING DISCOVERY, AND THE RIGHT ...