SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0595-18T4

JOANNE POLIMENI,

Plaintiff-Respondent,

v.

GREGORIO POLIMENI,

Defendant-Appellant.

__________________________

Submitted October 2, 2019 – Decided

Before Judges Fasciale and Mitterhoff.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Essex County, Docket 

No. FM-07-2836-04.

Weinberger Divorce & Family Law Group, LLC,

attorneys for appellant (Jessica Ragno Sprague, on the 

brief).

Respondent has not filed a brief.

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

October 10, 2019
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A-0595-18T4

Defendant Gregorio Polimeni appeals from an August 27, 2018 order 

denying, without prejudice, his unopposed motion for child support and physical 

custody of the parties' two children. The judge considered the matter on the 

papers, entered the order, and rendered a written decision. Although we 

understand the reasoning for denying the motion, we remand for further 

proceedings.

After their divorce in 2005, the parties enjoyed joint legal custody, with 

plaintiff being the parent of primary residence. The judge found that defendant 

made a prima facie showing of changed circumstances. But – referring to 

N.J.S.A. 9:2-4 – the judge found that defendant "did not provide any analysis 

showing what is in the best interest of the children." The judge emphasized that 

defendant "did not articulate the legal standard for the change in custody," "nor 

did he address the [statutory] factors." For those reasons, the judge denied 

defendant's motion for physical custody – to be the parent of primary residence 

– without prejudice. 

Defendant agreed to pay child support at the time the parties divorced. In 

addition to seeking a modification of the custody arrangement, defendant moved 

to terminate his child support obligation and to compel child support payments 

from plaintiff. Because changed circumstances existed – that is, plaintiff no 
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A-0595-18T4

longer exercised parenting time and the children resided with defendant – the 

judge terminated defendant's obligation to pay child support.1 But – referring to 

N.J.S.A. 2A:34-23(a) – the judge found that defendant "did not provide any 

analysis of the [statutory] factors." He therefore denied defendant's motion for 

child support without prejudice. 

Both N.J.S.A. 9:2-4 and N.J.S.A. 2A:34-23(a) require the judge to 

consider enumerated factors. The statutes say the court "shall consider" the 

factors. This statutory obligation is not optional. The judge correctly pointed

out that defendant filed incomplete papers on his motion. Although he submitted 

a certification, he did not file a brief or memorandum, nor did his counsel submit 

a certification to support, at a minimum, defendant's request for counsel fees. 

We therefore remand and direct that the judge undertake the required

analysis, including defendant's request for counsel fees. We leave the details of 

the remand proceedings to the judge, such as imposing an additional briefing 

schedule, conducting a hearing, etc. We do not retain jurisdiction because any 

further potential appeals will be on an entirely new record.

 

1 Defendant's child support obligation terminated on the date he filed his motion, 

February 12, 2018.