STATE OF NEW JERSEY VS. NICHOLAS M. IVES(13-02-0154, CUMBERLAND COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 8, 2017
• Docket: A-4057-14T3
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4052-14T3 DERRICK SMITH,

Plaintiff-Respondent,

v.

CLARIBEL ALVERIO,

Defendant-Appellant. ______________________________

Submitted December 6, 2016 – Decided March 9, 2017

Before Judges Koblitz and Sumners.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FD-11-960-14.

Key Law Center, LLC, attorneys for appellant (Danielle Joseph Key, on the brief).

Oswald & Zoschak, P.C., attorneys for respondent (Jennifer Zoschak, on the brief).

PER CURIAM

Defendant Claribel Alverio appeals from the March 23, 2015

order denying reconsideration of a July 18, 2014 order granting

plaintiff Derrick Smith shared residential custody of their then eleven-month-old daughter. For the reasons that follow, we reverse

and remand.

On May 27, 2014, the parties appeared before the Family Part

to address plaintiff's application for parenting time and shared

custody. Initially, the court was unsuccessful in settling the

dispute through a counsel-only conference. After unsworn comments

from the parties and argument from counsel, the court issued a

tentative order but allowed the parties to submit objections

thereafter. The court issued an order on July 18, setting child

support, and allowing joint legal custody and shared residential

custody. Defendant filed a motion for reconsideration on August

21, contending that the court failed to make findings of fact and

conclusions of law.

On January 29, 2015, before deciding the reconsideration

motion, the court issued a written memorandum of decision

explaining its July 18 order.

The reconsideration motion was eventually heard on March 17,

2015.1 Defendant argued that the court failed to adhere to Rule

5:8-1 by referring the dispute to mediation before deciding

custody, and that the court should have required an investigation

to determine what was in the child's best interest. Defendant

1 Defendant's appeal brief notes that the delay in hearing the matter was due to "several reschedulings."

2 A-4052-14T3 also noted that plaintiff had not taken advantage of the parenting

time afforded him under the court's order because of his two jobs.

Plaintiff opposed, maintaining that the parties were given the

opportunity to settle parenting time and custody but were

unsuccessful, and that a costly investigation is unnecessary given

that neither parent is unfit and the court's decision was well-

reasoned.

On March 23, 2015, the court entered an order denying the

motion. The court found that there was no good reason to

reconsider its decision because defendant did not allege that the

court had based its decision on plainly incorrect reasoning, nor

that the court failed to consider probative competent evidence.

In this appeal, we agree with defendant that the court's non-

compliance with our rules of court should result in vacating the

July 18, 2014 custody order. Rule 5:8-1 provides: "In family

actions in which the court finds that either the custody of

children or parenting time issues, or both, are a genuine and

substantial issue, the court shall refer the case to mediation[.]"

When a trial court fails to refer the case to mediation, we are

"compelled to remand" the family matter. See D.A. v. R.C., 438

N.J. Super. 431, 460 (App. Div. 2014). If mediation is not

successful, Rule 5:8-1 allows the judge to order a best interests

evaluation. We leave determination of the need for such an

3 A-4052-14T3 evaluation to the judge's discretion. Further, the judge and the

parties will need to determine whether expert assistance is

necessary. If, after these steps have been taken, the issues are

still contested by the parties, a plenary hearing will be required

with testimony under oath and cross-examination of the witnesses.

See D.A., supra, 438 N.J. at 450-451. "Absent exigent

circumstances, changes in custody should not be ordered without a

full plenary hearing." Ibid. (quoting Faucett v. Vasquez, 411

N.J. Super. 108, 119 (App. Div. 2009), certif. denied, 203 N.J.

435 (2010).

Reversed and remanded for further proceedings consistent with

this opinion. We do not retain jurisdiction.

4 A-4052-14T3