On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-875-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 16, 2012
Before Judges Yannotti and Harris.
Plaintiff appeals from orders entered by the Family Part, which provide, among other things, that the parties shall have joint legal custody of their three minor children, and defendant shall be the parent of primary residence. We affirm in part, reverse in part, and remand the matter for further proceedings.
The parties were married on July 17, 2004. In August 2007, the court imposed certain civil restraints upon the parties; granted plaintiff exclusive possession of the marital residence; granted custody of the children to plaintiff; required defendant to complete a drug/alcohol program; precluded defendant from having contact with his step-daughter; required defendant to remain drug and alcohol free; and allowed plaintiff to refuse parenting time in the event defendant appeared to be under the influence of drugs or alcohol. In September 2008, the court entered another order which required, among other things, supervision of defendant's visits with the children.
In the latter part of 2009, plaintiff filed a complaint for divorce. In 2011, the court conducted a trial in the matter and entered an amended final judgment of divorce on June 14, 2011, which, among other things, denied plaintiff's application for permission to remove the children from New Jersey, granted plaintiff sole legal custody of the children, and provided a schedule for defendant's parenting time. The judgment also provided that the children were to be enrolled in school in New Jersey, and plaintiff was required to provide defendant with a "legitimate address" as to the whereabouts of the children.
On August 8, 2011, defendant filed a motion in aid of litigant's rights, seeking, among other relief, an order holding plaintiff in contempt for failing to comply with the final judgment of divorce; granting him full residential custody of the children; requiring plaintiff to have supervised parenting time based upon her "proven disregard" of the court's order precluding her from removing the children from New Jersey; requiring plaintiff to undergo a psychiatric evaluation and counseling; and awarding defendant counsel fees.
In his supporting certification, defendant stated that plaintiff failed to comply with the final judgment because she did not allow him to have parenting time, had taken the children out of New Jersey, the children were not enrolled in school in New Jersey, and plaintiff had changed the registration of her vehicle to West Virginia. Defendant said that plaintiff told him she was living in West Virginia. He also stated that plaintiff was engaged to be married to a person who "evidently lives in West Virginia."
Defendant additionally stated that he had recently seen the children and was "stunned" by their poor hygiene. He asserted that, at one point, plaintiff told him she was home schooling the children. Defendant also said that plaintiff was telling the children "terrible lies" about him, had filed a report alleging sexual abuse with the Division of Youth and Family Services (Division)*fn1 which had been dismissed, and failed to provide him with an address for the children.
The motion judge considered the motion on September 2, 2011. Plaintiff's attorney told the judge that plaintiff had not been served with defendant's motion and asked the judge to dismiss or carry the motion. The judge stated that defendant had provided the court with a copy of the signed receipt, indicating that plaintiff had been served with the motion papers. The judge also noted that plaintiff had been in contact with the court during the weeks preceding the return date on the motion. The judge refused to adjourn the motion.
After hearing the arguments of counsel for the parties, the judge rendered a decision from the bench. The judge noted that he was familiar with the case, since he had presided over the trial in the matter in May of 2011. The judge said it was his understanding that the children would have been returned to New Jersey. The judge stated that he had not received any documentation indicating that the children would be home-schooled. The judge also said he wanted the children to be educated and he was not satisfied that this was being done.
The judge determined to transfer custody to defendant but was doing so without prejudice. The judge said that if plaintiff could show she had satisfied "the bare minimums" of the State's requirements for home schooling, he would "take a look at that." The judge also said he was concerned plaintiff had not been complying with the previously-entered parenting time order. The judge stated that he wanted the children to be returned to New Jersey by the following day.
The judge again emphasized that his decision was without prejudice. The judge stated that if plaintiff wanted to home school the children, he wanted to see some documentation on that issue. The judge said that, in the meantime, he intended "to take the proverbial bull by the horns" and "see that the children are educated[.]" The judge noted that the school year was ...