                                NOT FOR PUBLICATION WITHOUT THE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-0595-18T4

JOANNE POLIMENI,

          Plaintiff-Respondent,

v.

GREGORIO POLIMENI,

     Defendant-Appellant.
__________________________

                    Submitted October 2, 2019 – Decided October 10, 2019

                    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
      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


                                                                         A-0595-18T4
                                       2
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.
                                                                          A-0595-18T4
                                        3
