SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-1425- 22 K.P., 1 Plaintiff-Respondent,

v. N.G., Defendant-Appellant.

_______________________

Argued March 6, 2024

– Decided March 14, 202 4 Before Judges Firko and Vanek. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM- 02

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- 12. Ashley Vallillo Manzi argued the cause for appellan t (Manzi Epstein Lomurro & DeCataldo, LLC, attorneys; Ashley Vallillo Manzi, of counsel and on the briefs ; Nikki T. Caruso, on the briefs ).
K.P. , respondent, argued the cause pro se.

1 We use initials and a pseudonym in order to protect the privacy of the parties and their child. R. 1:38 -3(d)(13). NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 1425

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PER CURIAM In this post-judgment matrimonial matter, defendan t N.G. appeals from a November 29, 2022 Family Part order adopting the re port and recommendations of the guardian ad litem (GAL) appointed by the jud ge on behalf of the parties' then ten-year-old son "Eric" without eliciting testi mony or conducting a plenary hearing. The GAL's report and recommendations were at odds with the Bergen Family Center (BFC) evaluation ordered by the judge

. The order under review modified the parties' joint legal custody status by granting plaintiff K.P. sole decision-making authority with regard to Eric's med ical care and extracurricular activities and the Christmas holiday eac h year. On appeal, defendant argues the judge erred by ado pting the GAL's report and recommendations without conducting a plenary he aring because genuine disputes of material fact exist. Defendant also co ntends the judge erred by failing to identify the specific factors set forth in N.J.S.A. 9:2-4(c)

— the best interests standard

— when modifying legal custody of Eric and the Christ mas holiday parenting time and failed to find a change in circumstances in contravention of Rule 1:7 -4(a). We agree with defendant's contentions that a plenary hearing is necessary, and therefore, revers e and remand this application to the Family Part for a plenary hearing.3 A- 1425

- 22 I. The parties were married in 2011. Eric was born i n May 2012. A month later, plaintiff obtained a final restraining order (FRO) pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25 -17 to - 35 , against defendant. An amended judgment of divorce incorpor ated the parties' property settlement agreement (PSA), which was entered on Ju ne 28, 2013. The PSA states that the parties shall have joint legal cust ody of Eric. Article III, paragraph 3.3 provides: "The parties understand and define major decisions as all decisions of significance re garding the education, health, and welfare of the child. The parties shall have t he obligation to confer regarding such decisions." Article IV, paragraph 4 .6 states: "The parties shall confer, and mutual agreement shall be reached, with regard to any major decisions in the child's life." Regarding holiday parenting time, Article IV , paragraph 4.1 states: "[Defendant] shall exercise p arenting time on Christmas Day . . . every year." On August 10, 2018, the parties entered a consent order modifying the parenting time schedule in the PSA, which provided in relevant part:

1. [Defendant] shall begin unsupervised parenting tim e beginning August 4, 2018, every other weekend from Saturday at 9:00 [a.m.] until 6:00 [p.m.] and Sunda y from 9:00 [a.m.] until 6:00 [p.m.] The party concl uding4 A- 1425

- 22 parenting time shall drop off the child at the othe r party's residence. Therefore, [plaintiff] will dro p off Eric at 9:00 [a.m.] and [defendant] shall drop off Eric at 6:00 [p.m .]
2. Beginning on September 22, 2018, eight weeks after the supervision provision is lifted, and same occur s without incident, [defendant] would exercise parenting time every other Saturday from 9:00 [a.m.] until Sunday at 6:00 [p.m.]

. . . . 5. After three consecutive months of unsupervised overnight parenting time (September 22-December 22) , so long as [Eric] is responding well to the change in schedule, [defendant] shall be able to exercise two separate vacations with [Eric] lasting no more than four night s. The vacations should be attached to [defendant' s] parenting time weekends. Commencingin June of 2019, [defendant] can exercise two nonconsecutive weeks of vacation with [Eric] each year

.

. . . . 8. The holiday schedule contained on page 13 of th e parties' PSA will begin immediately with the above referenced limitations on overnight parenting time. Specifically, for 2018, [defendant] shall have paren ting time on Thanksgiving Day (10:00 [a.m.] through 6:00 [p.m.]) and Christmas Day (10:00 [a.m.] through 6:0 0 [p.m.]). The record shows defendant's parenting time was no t modified or suspended from the entry of the consent order throu gh June 18, 2021, when plaintiff filed an emergent order to show cause (OT SC) after defendant relocated5 A- 1425

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to Knoxville, Tennessee. In her OTSC, plaintiff sought to: (1) suspend defendant's unsupervised parenting time; (2) suspen d his overnight parenting time; (3) allow her to monitor all phone calls betw een defendant and Eric; (4) compel defendant to undergo a psychiatric evaluatio n; and (5) require a best interests evaluation be performed to determine if d efendant was allowed

un supervised parenting time. Plaintiff claimed the r elief she sought was based on defendant's anger issues raised by Eric's therap ist. Plaintiff did not seek to modify the parties' joint custody status, or the Christm as holiday parenting time schedule set forth in the PSA, or the terms of the consent order. On June 22, 2021, the judge conducted oral argumen t on plaintiff's OTSC. Two days later, the judge entered an order granting plaintiff's request for supervised parenting time between defendant and Eri c; appoint ed BFC to perform a custody and parenting time evaluation; de nied plaintiff's request to have defendant undergo a psychiatric evaluation; an d grant ed plaintiff's request to monitor phone calls between defendant and Eric. On December 31, 2021, BF C issued its custody and parenting time evaluation and recommendations to the judge. The e valuator recommended:

Both parents should share joint legal custody. The history of this case suggests that [defendant] has not been provided consistent access to information regarding [Eric] and has not been consistently included6 A- 1425

- 22 in parenting decisions. This is a serious concern a nd potentially serious risk to the father-son relation ship and needs to be addressed immediately . . . . It i s [plaintiff 's ] responsibility to immediately communicate to [defendant] any health issues requiring hospital treatment, any school issues which could potentiall y impact on [Eric's] academic progress and any other issues that impact significant on [Eric]

. The evaluator also recommended that plaintiff have parenting time for Jewish
holid ays, defendant have parenting time on Christmas Eve and Christmas Day, and follow the universal holiday parenting time sch edule and specific holidays pertaining to the religious and cultural beliefs of each parent. Plaintiff is Jewish, and defendant is Greek Orthodox. On March 3, 2022, the parties appeared for a case management conference. The judge issued an order that day app ointing a GAL and a parent coordinator (PC). 2 The judge allowed plaintiff to retain an independent custody and parenting time expert, ordered defendant to hav e unsupervised parenting time with Eric one weekend per month from Saturday at 9:00 a.m. to Sunday at 6:00 p.m. on a date agreed upon by the parties, and ordered defendant have unsupervised phone calls with Eric until further or der of the court. On October 15, 2022, the judge ordered , by consent , that effective October 15, 2022,

2 At oral argument, we were informed there were two P Cs appointed in this matter and both have been discharged.7 A- 1425

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defendant have overnight parenting time with Eric e very other weekend from Saturday at 9:00 a.m. until Sunday at 6:00 p.m. On November 21, 2022, the GAL issued her report an d made the following recommendation: "The decision-making authority wit h regard to [Eric's] medical care, extracurricular activities and his tr avel schedule [should] rest solely with [plaintiff]." With respect to holiday parenting time, the GAL recommended that defendant have parenting time every other year on Christmas starting on Christmas Eve at 9:00 p.m. to Christmas Day at 8:00 p.m. On November 29, 2022, the parties and the GAL appe ared at a follow- up case management conference. The judge requested th at the GAL place her recommendations on the record along with her reason ing. The GAL then stated:

"The parent of primary residence is [plaintiff]. She has been for many years, for [Eric's] entire life essen tially. And she has been involved in the day- to -day decision making. So based upon the fact that [Eric] has tur ned out to be a wonderful young boy; he is raised well. He is thriving in her care. Based upon the decision[-] making that she is engaged in, I believe that decis ion [-]making should be transferred to [plaintiff]." The GAL's statement on the record contradicted the recommendations in her written report. The judge then permitted the parties to place thei r arguments on the record regarding the GAL's recommendations. However, neit her party was allowed to8 A- 1425

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elicit testimony from the GAL, cross-examine her, p resent any witnesses, or present evidence. Defendant's counsel stat ed on the record that defendant "does not agree to accept or adopt all of [the GAL's] rec ommendations. He is open to some of them." Defendant's counsel add ed that the GAL did not reference the
BFC 's recommendations in her report, and further noted t hat the GAL's recommendations placed on the record reached "diffe rent conclusions" and contradicted her report because the GAL's report on ly referenced decisionmaking with respect to medical, travel, and extracu rricular activities, but on the record, the GAL expanded her recommendation to incl ude "all the day- to -day decisions would be with [plaintiff]." According to defendant's counsel, the judge ignored the provisions set forth in her March 15, 2022 order, which set forth that the GAL would be subject to cross-examin ation at the "pending custody hearing," which never occurred. In relevant part, the judge's memorializing Novemb er 29, 2022 order provided: Eric shall recommence therapy; defendant shall have parenting time every other weekend on Friday nights at 6:00 p.m. and ending on Sunday at 7:00 p.m.; the parties shall alternate the Christmas hol iday (December 24 at 9:00 p.m. to December 25 at 8:00 p.m.) each year; plaintiff s hall have sole decisionmaking authority with regard to Eric's medical care and ext ra -curricular9 A- 1425

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activities; and the GAL was relieved from her appoi ntment under Rule 5:8B(c). 3 This appeal followed.
II. We consider whether defendant is entitled to a ple nary hearing. Defendant seeks a plenary hearing in order to challenge the r eport and recommendations of the GAL and contends there are genuine disputes of material fact regarding custody and parenting time between the BFC's and the GAL's recommendations. Defendant also asserts the judge modified custody w ithout specifying the N.J.S.A. 9:2-4(c) factors, did not find a change in circumstances to warrant modifications of the parties' joint legal custody a greements set forth in the PSA , and did not provide findings of fact and conclusion s of law as required by Rule
1:7 -4(a). Although we apply an abuse of discretion standard to a trial court's determination regarding the need for a plenary hearin g, Costa v. Costa, 440 N.J.

3 Rule 5:8B(c) provides:

The term of the guardian ad litem shall be coextens ive with the application pending before the court and s hall end on the entry of a judgment of divorce, dissolut ion of a civil union or termination of a domestic partn ership or an order terminating the application for which t he appointment was made, unless continued by the court

. The guardian ad litem shall have no obligation to f ile a notice of appeal from a judgment or order nor to participate in an appeal filed by a party.10 A- 1425

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Super. 1, 4 (App. Div. 2015), we conclude the judge wa s mistaken by not conducting a plenary hearing.
Tur ning to defendant's substantive challenges to the N ovember 29 order, it is axiomatic that the best interests of the chil d is the fundamental legal principle guiding our review. D.A. v. R.C., 438 N. J. Super. 431, 450 (App. Div. 2014) (citing Kinsella v. Kinsella, 150 N.J. 276, 3 17-18 (1997)). "A custody arrangement adopted by the trial court, whether bas ed on the parties' agreement or imposed by the court, is subject to modification based on a showing of changed circumstances, with the court determining c ustody in accordance with the best interests standard of N.J.S.A. 9:2-4." Bisbing v . Bisbing, 230 N.J. 309, 322 (2017). "A party seeking to modify custody must demonstrate changed circumstances that affect the welfare of the child[ ]." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). "Absent exigent circumstances, changes in custody should not be ordered without a full plenar y hearing." Faucett v. Vasquez, 411 N.J. Super. 108, 119 (App. Div. 2009) (citing R. 5:8

- 6; Entress v. Entress, 376 N.J. Super. 125, 133 (App. Div. 2005))

. It is equally well-established that "[w]e grant sub stantial deference to a trial court's findings of fact and conclusions of l aw, which will only be disturbed11 A- 1425

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if they are manifestly unsupported by or inconsiste nt with the competent, relevant and reasonably credible evidence." N.H. v . H.H., 418 N.J. Super. 262, 279 (App. Div. 2011) (quoting Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007)). This is particularly so where t he evidence is largely testimonial and rests on the judge's credibility de terminations. Gnall v. Gnall , 222 N.J. 414, 428 (2015). In addition, we particularly "recogniz[e] the court 's 'special jurisdiction and expertise in family matters.'" Thieme v. Aucoi n-Thieme, 227 N.J. 269, 282- 83 (2016) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). However, "[a] more exacting standard governs our review of the tr ial court's legal conclusions[,] . . . [which] we review . . . de nov o." Id. at 283 (citing D.W. v. R.W., 212 N.J. 232, 245-46 (2012)). This record reflects disputed recommendations from the BFC and the GAL, and conflicting recommendations from the GAL, such that the parties should have been given a brief period for discovery after the GAL issued her report and, absent an agreement, the opportunity to present the issues for the judge's resolution at a plenary hearing as to what was in Eric's best interest

. Conforti v. Guliad is , 128 N.J. 318, 322 (1992) (quoting Conforti v. Gul iadis , 245 N.J. Super. 561, 565 (App. Div. 1991)). In such a proceeding, the judge12 A- 1425

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will have t he chance to assess the credibility of the parties' a ssertions, as tested through the rigors of cross-examination. Eaton v. Graw, 368 N.J. Super. 215, 222 (App. Div. 2004). Moreover, the judge did not consider the N.J.S.A. 9 :2-4(c) factors to determine whether any modification to the PSA and s ubsequent consent order was in Eric's best intere st :

In making an award of custody, the court shall cons ider but not be limited to the following factors: (1) th e parents' ability to agree, communicate and cooperate in matters relating to the child; (2) the parents' wil lingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abu se; (3) the interaction and relationship of the child w ith its parents and siblings; (4) the history of domestic violence, if any; (5) the safety of the child and t he safety of either parent from physical abuse by the other p arent; (6) the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; (7) the needs of the child; (8) the stabi lity of the home environment offered; (9) the quality and continuity of the child's education; (10) the fitne ss of the parents; (11) the geographical proximity of the parents' homes; (12) the extent and quality of the time spent with the child prior to or subsequent to the separation; (13) the parents' employment responsibilities; and (14) the age and number of th e children. A parent shall not be deemed unfit unless the parents' conduct has a substantial adverse effect o n the child. [N.J.S.A. 9:2-4(c).]13 A- 1425

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Indeed, it is well established a best interests ana lysis under N.J.S.A 9:2- 4 "requires the court to consider any and all materia l evidence[,]" Kinsella, 150 N.J. at 317, and "must be based on all circumstance s, on everything that actually has occurred, on everything that is relevant to the child's best interests[,]" In re Baby M., 109 N.J. 396, 456 (1988) (emphasis added). The judge did not elicit testimony from the partie s, the BFC evaluator, or any fact or expert witnesses. And, the GAL merely gave a statement on the record. The GAL did not testify and was not subjec t to direct or crossexamination. In short, the judge rendered a decisi on by simply adopting the GAL's report and contradictory statement on the rec ord without conducting a plenary hearing or conducting the requisite best in terest analysis. The judge's reliance on the GAL's report and state ment on the record, where the court heard no factual or expert testimony at a ll, was legal error. The judge relied on the GAL's report and statement to g rant relief that went over and above what plaintiff sought in her OTSC, i.e., chan ged joint legal custody to sole legal custody and modified Christmas holiday p arenting time, without according defendant any opportunity to challenge or rebut the GAL's recommendations.14 A- 1425

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Our review of this matter is further complicated b y the judge's failure to render a statement of reasons, as required under Ru le 1:7 -4(a), explaining the basis for her order. See Pressler and Verniero, Curren t N.J. Court Rules, cmt. 1

on R. 1:7 -4 (2024) (emphasizing that the Rule requires findi ngs to be made on all motions decided by written orders appealable as of right, and "the critical importance of that function"); see also Ronan v. Ad ely, 182 N.J. 103, 110 (2004). On remand, the judge shall make adequate factu al findings and provide a statement of reasons following the plenary hearin g. We remand to the Fa mily Part to conduct a plenary hearing on the issue s raised in plaintiff's OTSC and opposition filed by defendant on custody and parenting time issues that serve Eric's best interests. As we cautioned in P.T. v. M.S., courts should not "allow experts (or a GAL) t o shoulder excess responsibility or authority, nor trial judges to ce de their responsibility or authority[,]" and that the court "must not abdicate its decision-making role to an expert (or GAL)." 325 N.J. Super. 193, 216 (App. D iv. 1999). We stress that following the plenary hearing on rem and, it is solely the judge's province to decide what the appropriate cus tody and parenting time parameters and schedule should be and how and when it should be implemented,15 A- 1425

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after giving due consideration to any expert, BFC a nd GAL opinions, and other evidence adduced at the plenary hearing.
III. Lastly, we address plaintiff's request for counsel fees in her self-authored brief. Plaintiff states, "Due to years of [a]busive [l]lit igation at the hand o f [d]efendant, [she] requests that [this] [c]ourt rev ise the order dated November 29 . . . to include a ruling and order [d]efendant to pay all legal fees associated with this proceeding[,] which began on June 24, 202 1[,] and ended on November 29 , . . . which totals $41,285.81." We reject plaint iff's request because: the issue was not considered by the Family Part judge, 4 plaintiff did not include her request for counsel fees in a point heading in her brief, 5 and she never filed a

4 It is well settled that the Appellate Division will not consider questions or issues not raised at the trial level unless the que stions raised pertain to the trial court's jurisdiction or concern a matter of great p ublic interest. State v. Robinson, 200 N.J. 1, 20- 22 (2009).

5 We also limit our consideration "of the issues to those arguments properly made under appropriate point headings" and do not a ddress "oblique hints and assertions" that are untethered to the point headin gs required under Rule 2:6

- 2(a)(6). Almog v. Isr. Travel Advisory Serv., Inc. , 298 N.J. Super. 145, 155 (App. Div. 1997); see also Mid-Atl. Solar Energy In dus. Ass'n v. Christie, 418 N.J. Super. 499, 508 (App. Div. 2011) (refusing to address an issue raised in a two -sentence paragraph in a brief "without a separate point heading, in violation of Rule 2:6 -2(a)[(6)]"). It is not our role to weave together the fabric of an argument on a party's behalf based on threads vague ly scattered amongst the16 A- 1425

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notice of cross-appeal. 6 Therefore, we do not consider plaintiff's request f or counsel fees. In summary, we reverse the November 29, 2022 order in its entirety and remand all issues raised in plaintiff's OTSC and an y opposition and pleadings filed in response by defendant to the Family Part f or consideration and determination following a plenary hearing. We leave the conduct of the plenary hearing to the judge's sound discretion. We expres s no opinion about the outcome of the plenary hearing. We conclude the remaining arguments

— to the extent we have not
addressed them

— lack sufficient merit to warrant any further discus sion in a written opinion. R. 2:11 -3(e)(1)(E). Reversed and remanded. We do not retain jurisdict ion.

arguments that are not properly identified in point headings in accordance with Rule 2:6 -2(a)(6).

6 Rule 2:5 -6(b) provides "Applications for leave to cross app eal from interlocutory orders and administrative decisions or act ions as to which leave to appeal has not already been granted shall be made by serving and filing with the appellate court a notice of motion within [twenty] days after the date of service of the court order or administrative decision appeale d from or after notice of the agency or officer's action taken or, if no cross-mo tion is filed, within [twenty] days following decision of a motion for reconsidera tion as provided by [Rule] 2:5 -6(a)."