TAYLOR L. GURNEY VS. CHRISTOPHER J. PETERSON (FD-02-0181-17, BERGEN COUNTY AND STATEWIDE

• Court: New Jersey Superior Court Appellate Division
• Decided: October 31, 2017
• Docket: A-0974-17T3
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0974-17T3

TAYLOR L. GURNEY,

Plaintiff-Respondent,

v.

CHRISTOPHER J. PETERSON,

Defendant-Appellant. ____________________________________________________

Submitted October 5, 2017 – Decided October 26, 2017

Before Judges Fisher and Sumners.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FD-02-0181-17.

Geist Law LLC, attorneys for appellant (Jared A. Geist, on the brief).

Landel, Bernstein & Kalosieh, LLP, attorneys for respondent (Thomas S. Garlick, on the brief).

PER CURIAM

Defendant moved for a change of venue in this family court

matter; by rule, such a motion must be heard by either the

vicinage's assignment judge, the presiding judge of the family part, or the assignment judge's designee. R. 4:3-3(a). Defendant's

motion, however, was adjudicated through the implementation of a

procedure not contemplated by that rule or any other rule of which

we are aware.

At the outset of the hearing on the return date, the motion

judge announced he had been directed by the assignment judge to

hear oral argument, after which he (the motion judge) would "make

a recommendation to the Assignment Judge and/or [sic] the Presiding

Judge." Consistent with that direction, the motion judge stated

at the conclusion of the parties' arguments, that he would "make

a recommendation" to the assignment judge or presiding judge.

The record on appeal reveals that on August 31, 2017, a few

days after the return date, the presiding judge entered an order

denying the motion to change venue. His rationale for denying the

motion – stated only in conclusory terms – memorializes his

consideration of the parties' written and oral arguments and the

motion judge's "recommendation submitted after the oral argument."

The motion judge's recommendation is not contained in the record;

indeed, for all we know it may have been conveyed orally and there

may be no record of it at all. But, most importantly, the parties

appear not to have been made aware of the content of the

recommendation. Consequently, we too are in the dark as to what

it was that the motion judge recommended.

2 A-0974-17T3 All that, however, hardly matters. What matters is that the

procedure adopted here was unauthorized and is, therefore,

unacceptable. Our rules do not contemplate a process by which one

judge reviews the motion papers and hears counsel's argument, and

then provides another judge with a recommendation as to how to

rule. Judges must decide matters by personally participating in

the proceeding without the recommendation or involvement of

another. Even if it could be said the ultimate disposition of the

venue motion was legally sound – a question we do not reach – we

have been compelled to intervene because the procedure followed

here was fundamentally flawed. "[J]ustice must satisfy the

appearance of justice." Offutt v. United States, 348 U.S. 11, 14,

75 S. Ct. 11, 13, 99 L. Ed. 11, 16 (1954). Utilization of

unauthorized, ad hoc procedures tends to shake the public's

confidence in the ability of our courts to fairly administer the

law. See State v. Deutsch, 34 N.J. 190, 206 (1961) (expressing

that it is "vital that justice be administered not only with a

balance that is clear and true but also with such eminently fair

procedures that the litigants and the public will always have

confidence that it is being so administered").

Consequently, we grant defendant's motion for leave to

appeal, summarily vacate the order under review, and remand for

the motion's rehearing. Because the presiding judge's further

3 A-0974-17T3 consideration of the matter has been tainted by the impermissible

manner in which the motion was decided, we direct that the motion

be heard and considered by the vicinage's assignment judge or the

assignment judge's designee.1 We ask that the motion be decided as

expeditiously as practicable.

1 In opposing this motion for leave to appeal, plaintiff claims there was no error because the assignment judge was authorized by Rule 4:3-3(a) to designate any judge to hear and decide the motion. That is certainly true, but that's not what happened. The assignment judge didn't designate the motion judge to rule on the venue motion; she only designated him to hear the motion and then provide a recommendation to another judge.

4 A-0974-17T3