                                NOT FOR PUBLICATION WITHOUT THE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-3793-17T2

V.P.,

          Plaintiff-Appellant,

v.

P.A.P.,

     Defendant-Respondent.
__________________________

                    Argued December 19, 2018 – Decided December 13, 2019

                    Before Judges Fuentes, Vernoia and Moynihan.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Somerset County,
                    Docket No. FM-18-0606-17.

                    Andrew M. Shaw argued the cause for appellant (The
                    DeTommaso Law Group, LLC, attorneys; Andrew M.
                    Shaw, on the briefs).

                    Joseph DiRienzo argued the cause for respondent
                    (DiRienzo & DiRienzo, PA, attorneys; Joseph
                    DiRienzo, on the brief).

          The opinion of the court was delivered by
FUENTES, P.J.A.D.

      Defendant appeals from a post-judgment order entered by the Chancery

Division, Family Part that modified the terms of the parenting time arrangement

the parties agreed to and memorialized in a Marital Settlement Agreement

(MSA). We reverse and remand for the Family Part to conduct a plenary hearing

to determine if a change in residential custody and/or modification of the

existing parenting arrangement is in the best interest of the parties' two teenaged

daughters.

                                         I

      Plaintiff V.P. (Victoria) and defendant P.A.P. (Peter) 1 were married in

October 2003. They had two daughters, K.D.P. (Kadance), who is now sixteen

years old, and H.A.P. (Heather), who is now thirteen. The parties separated in

2016. Each party retained private counsel and negotiated the terms of the MSA

they signed on June 16, 2016. The MSA contains 108 numbered paragraphs that

comprehensively address and resolve all the issues associated with the

dissolution of the marriage.




1
   Pursuant to Rule 1:38-3(d), records of proceedings before the Chancery
Division, Family Part are confidential. We use pseudonyms to protect the
privacy of the litigants and preserve the confidentiality of these proceedings.
                                        2
                                                                          A-3793-17T2
      Under Paragraph 7, both parents have "legal custody" of the children and

must discuss and agree on "all matters relating to the health (including

psychological and psychiatric) welfare, religious training, education, activities,

camp, and other issues of similar importance affecting the children . . . [.]" Any

agreements reached by the parties related to these matters "shall be confirmed

in writing in an email with the Husband and the Wife expressing their consent

to the agreement. In the event [they] are unable to agree . . . neither [party]

shall act unilaterally."

      Before the October 25, 2016 amendments to the MSA, Paragraph 19,

denoted "Parenting Time Schedules," provided defendant with "regular

parenting time with the children based on a five[-]week repeating schedule[.]"

This was illustrated in a graph and was expected to work "for all future years

and the [defendant] and the [plaintiff] shall work together to agree upon the

specific dates in the future."

      The parties also provided a self-executing, nonjudgmental remedy to be

used when a parent, for whatever reason, did not have parenting time with the

children for more than ten days. Under Paragraph 19 in the original MSA, in

the event either parent "does not have parenting time with the children for ten

(10) consecutive days, that parent shall have a right to a midweek dinner from

5:00 p.m. to 8:00 p.m., with the specific date to be agreed upon."

                                       3
                                                                         A-3793-17T2
      On October 25, 2016, the parties amended the MSA and "replaced" several

parts of the agreement "in their entirety." Our focus here is limited to the

amendments that touched upon parenting time.         The amendment replaced

"Paragraphs 19 and 20 2. . . in their entirety" with a new Paragraph 19 denoted

"Parenting Time Schedules." Starting on Tuesday July 5, 2016, the amended

arrangement provided defendant "regular parenting time with the children based

on a three (3) week repeating cycle, which begins on a Monday and ends with a

Sunday."

      The amended Paragraph 20 provides a parenting time schedule for

holidays and special events. The time the children spend with defendant during

these events "are periods of time that take precedence, but do not break the

continuity of the parenting [time] schedule set forth" under the amended

Paragraph 19. This arrangement covers holidays and special events "for 2016,

2017 and thereafter on a year to year basis." The parties once again included a

chart to illustrate how they expected this parenting time and holiday/special-

events schedule would work. The last parenting time item involved vacations.




2
  Although Paragraph 21 states that "the parenting time set forth in [P]aragraph
20 above shall take precedence over the regular parenting time set forth in
[P]aragraph 19," the copy of the MSA provided to us in the appellate record
does not have a Paragraph 20.
                                      4
                                                                        A-3793-17T2
Once again, the parties methodically established a comprehensive protocol

designed to manage this aspect of the children's interactions with a parent.

      On November 14, 2017, the Family Part entered a Dual Final Judgment of

Divorce (JOD) formally dissolving the marriage and expressly incorporating the

amended MSA as part of the court's decree. On March 27, 2018, less than five

months after the court issued the JOD, defendant filed a notice of Motion to

Enforce Litigant's Rights seeking seventeen specifically enumerated items of

relief that would materially alter, if not outright eradicate, the carefully

negotiated provisions in the MSA related to the children's residential custody

and parenting time. For example, defendant sought an order from the court: (1)

"immediately" awarding him residential custody of the children pending a

plenary hearing; (2) restricting plaintiff's contact with the children to "a

supervised setting," until otherwise ordered by the court; (3) directing

"[p]laintiff to undergo a psychiatric evaluation"; and (4) requiring plaintiff's

adherence to "any recommendations" made by the psychiatrist, and

"cooperat[ion] with a custody evaluation."

      Defendant's remaining prayers for relief involved the imposition of some

form of sanction against plaintiff based on her alleged violations of the MSA.

In support of this extraordinary application, defendant averred plaintiff

"deliberately" engaged in conduct designed to alienate the children's affections

                                       5
                                                                         A-3793-17T2
for him; she attempted to thwart his "ability to attend events, meetings, and

medical appointments for the children" and "unilaterally" scheduled his younger

daughter "in a new full-year competitive cheer program . . . that dramatically

interfered with [his] parenting time. . . [.]" Defendant also claimed plaintiff

refused to take the children to Hebrew School or follow a physician's alleged

"therapeutic recommendations[.]"

      In the event the court were to deny his request to transfer residential

custody of the children to him immediately, defendant requested he be awarded

"make-up parenting time to begin immediately and continue until all make-up

overnights have occurred[.]" Defendant petitioned the court to sanction plaintiff

$1000 "per day for each day she fails to produce the children for parenting time"

and for each therapeutic session missed by the children. Finally, defendant

asked the judge to interview the children directly. If this interview reveals the

children have "knowledge of this litigation," the judge should order that

plaintiff's contact with the children be "supervised at all times."

      In support of this motion, defendant submitted a certification replete with

accounts of plaintiff's alleged misconduct with the children. Most of defendant's

allegations of plaintiff's misconduct predate the November 14, 2017 JOD. 3 The



3
  We also note that the law firm that filed this motion on defendant's behalf is
the same firm that represented defendant in the matrimonial proceedings.
                                       6
                                                                        A-3793-17T2
few accounts of plaintiff's alleged misbehavior, which occurred after the

November 14, 2017 JOD, can be characterized as minor or petty. For example,

defendant averred that plaintiff:

            encouraged the children to alienate [his] side of the
            family, as well.     To make a long story short,
            [Kadance's] Bat Mitzvah was a nightmare. Plaintiff had
            [Kadance] "un[-]invite" me and my family to her party.
            Ultimately, I was re-invited but was limited to only a
            handful of guests. When I gave [p]laintiff my list of 25
            people from my side of the family, she responded that
            they already had 68 invites and the venue was for 70.

      Defendant did not seek emergent relief from the Family Part in his Notice

of Motion to Enforce Litigant's Rights dated March 27, 2018. In fact, the motion

indicated a return date of April 20, 2018.

                                       II

      On April 1, 2018, defendant filed an Order to Show Cause (OTSC)

substantially seeking the same relief he sought in the March 27, 2018 motion.

Defendant and his attorney appeared before the Family Part on April 2, 2018 for

a hearing on the OTSC. Neither plaintiff nor her attorney were present at this

hearing. As the following interactions show, the judge initially treated this

matter as an ex parte application.

            THE COURT: All right. This is . . . defendant's Order
            to Show Cause. And he has submitted in . . . support of
            that a Letter Brief with a Certification consisting of 15
            pages, 31 paragraphs, with a number of different

                                       7
                                                                        A-3793-17T2
            attachments. Apparently this is an ongoing problem
            that [plaintiff] . . . is not allowing him access to the two
            children, [Kadance], age 13, and [Heather], age 11. It
            has been going on for some time. There was . . . another
            appearance . . . just about a year ago it flared up.

            THE COURT: Tell me, . . . [addressing defendant] in
            your own words, what has happened in the last year.

                  ....

            How . . . often have you seen your children?

            DEFENDANT: Well, . . . in the last - - I guess, it's
            almost about three months, I - - the only time I've had
            them would be on two separate occasions. I had dinner
            with them at a public restaurant. That was [plaintiff's]
            insistence. And she sat in the parking lot and waited
            for them. So it was like an hour.

            . . . I'm supposed to get them, pretty much, two
            weekends out of three from - -

            THE COURT: There's no . . . requirement for any
            supervised visitation. Is that . . . correct?

                  ....

            DEFENSE COUNSEL: No, sir. No, Your Honor.

      At this point in the proceeding, the court clerk informed the judge that

plaintiff's counsel had contacted the court and asked to participate

telephonically. In the colloquy that ensued telephonically, plaintiff's counsel

alleged she only received part of defendant's OTSC late in the evening of the

previous day. Defendant's counsel refuted these allegations.

                                        8
                                                                           A-3793-17T2
      Despite the disputed accounts related to service of process, the judge

ultimately found the relief sought in the OTSC were "essentially the same" relief

defendant sought in the motion filed on March 27, 2018. At this point, the judge

told plaintiff's counsel that prior to her telephonic appearance, defendant

testified under oath that "he has not been getting his children." The judge then

addressed defendant directly as follows:

            THE COURT: I want specifics as to what dates you
            were supposed to get them and - - and when was the last
            time you saw them. You started to tell me about a – a
            restaurant. Is that correct?

            DEFENDANT: Yes, Your Honor.

            THE COURT: When was . . . the last time you had
            dinner with them?

            DEFENDANT: Well, I had dinner with them last Friday
            at Buffalo Wild Wings. This - - this last Friday.

            THE COURT: All right. And when were you supposed
            to have them for the weekends?

            DEFENDANT: Well, this weekend is a little bit of an –

            DEFENSE COUNSEL: Go back to January.

            DEFENDANT: Yeah. I - - I mean, if - - if I go all the -
            - basically, the - - the schedule is as defined in the - - in
            the MSA.

                  ....

            Two - - two weekends out of three.

                                         9
                                                                            A-3793-17T2
                  ....

            THE COURT: Okay. How many have you gotten since
            January 1st?

            DEFENDANT: [S]ince January - - I - - going from
            January 20th onward, I haven’t had any.

      Defendant also testified that he did not see his daughters on President's

Day weekend and other days specifically identified in the MSA. According to

defendant, he had missed thirty-six parenting time days since January 20, 2018.

In response to the judge's question, defendant provided the following

explanation in support of his claim:

             I had pleaded with my ex-wife on numerous occasions.
            And she basically has refused to even - - directly even
            address me. She puts the two girls on the - - she has
            them contact me and say we're not coming. This . . .
            happened over and over again, and at which point I said,
            that - - that can't - - that's obviously more hurtful than
            anything else. So going forward I said, don’t do that.
            That’s obviously not a good way to handle this, my two
            - - you know, 11 and 13 year old daughters telling me
            that they don’t have to come if they don’t want to. So
            . . . thereafter I would send her e-mails. I'd try to call
            her. She won't answer the phone.

            I actually had gone to the police. The police called her
            on a number of occasions[.] [S]he doesn’t answer the
            phone in some circumstances when the police call her.

            And I send her e-mails . . . a lot of times she doesn’t
            answer. When she does answer she says, the kids don’t
            want to come. It's your problem to solve. You . . .
            better figure something out. And she sent me . . . a

                                       10
                                                                         A-3793-17T2
            picture of a book on good parenting, all that kind of
            stuff. That . . . [is] her answer.

      Defense counsel cited to a statement made by the judge who presided over

the matrimonial litigation which cautioned the parties that "kids don’t make the

decisions[.]" According to defendant's counsel, "things got back on track

immediately following the hearing. He was able to see his children." Defense

counsel also apprised the judge that previous attempts to address the problem

through mediation proved to be ineffectual. A Consent Order dated June 2, 2017

memorialized the parties' agreement:

            The parties agree that they will immediately commence
            co-parenting counseling and family therapy with Dr.
            Timothy Hamway. The parties agree that they will both
            participate in co-parenting counseling and family
            therapy with Dr. Hamway and that both of their
            children will also participate in family therapy. The
            parties shall follow Dr. Hamway's recommendation and
            protocol as to the participants for each session, the
            frequency/duration of the sessions, etc.

            The parties agree that they will abide by the reasonable
            recommendations of Dr. Hamway. They also agree that
            Dr. Hamway shall be authorized to communicate with
            the children's therapists. The parties further agree that
            they both expressly authorize Dr. Hamway to report to
            and communicate to the [c]ourt upon request of either
            party or their counsel.

      Despite these efforts, defense counsel claimed: "We're literally in the

same place at the same time as we were last year. Only now the harm is so much


                                       11
                                                                        A-3793-17T2
more. Last year, I think he lost 24 days of parenting time. Now we’re talking

about 36."

         Plaintiff's counsel prefaced her response by noting that she did not

represent plaintiff the previous year. She also noted that the remarks defense

counsel attributed to a previous judge, ("kids don’t make the decisions"), were

made in the context of a motion hearing in which no testimony was taken. That

judge appointed the therapist who remains involved with the family. According

to plaintiff's counsel, the steps her client took with respect to the children were

in accordance with the therapist's recommendations. According to plaintiff's

counsel, the parties were scheduled to attend a therapy session with the therapist

that night.

         Plaintiff's counsel characterized the situation with the children as the

symptoms of "a deteriorated relationship between dad and these girls." She

apprised the court that plaintiff intended to file a cross-motion "seeking much

of the same relief that [defendant] seeks. Maybe we need experts. Maybe we

need a custody evaluation. I'm sure everybody loathes that. There's an issue

here that needs to be solved. Nobody is disputing that." Plaintiff's counsel thus

asked the judge to afford her the opportunity to respond to defendant's

allegations in writing to provide the court with a balanced presentation of the

facts.

                                        12
                                                                          A-3793-17T2
      The judge made the following comments at the conclusion of the hearing:

            THE COURT: Well, here's what I see. I see a Court
            Order not being followed. Dr. Hamway is not going to
            tell me what . . . to do with . . . an Order. They can
            make -- a doctor can make a recommendation. Your
            client is –

            PLAINTIFF'S COUNSEL: Sure.

            THE COURT: -- not going to tell me, nor is
            [defendant]. All right. This is what I'm ordering. And
            I'm very, very -- you can tell your client I'm very close
            to changing custody. This cannot go on.

                   ....

            . . . I want everybody here at 8:30 tomorrow morning.
            I don't want any excuses. I don't want to hear about trial
            schedules or anything else. I'm going to make a
            decision on this tomorrow. We may change custody. I
            don't know if I'm going to do that or not. I have to see
            what's in the best interest of the children. But we're not
            going to have another year of somebody violating Court
            Orders. It's as simple as that.

      The court reconvened the following day.         The parties were the only

witnesses; they were sworn in at the commencement of the hearing.              The

transcript of the April 3, 2018 hearing shows the judge questioned the parties in

a haphazard fashion, going back and forth between them.              The lawyers

intervened at will in this "conversational" format and supplemented or rephrased

their client's testimony. The judge acquiesced to these irregularities and actively

encouraged this approach. The following exchange illustrates the problem:

                                        13
                                                                          A-3793-17T2
DEFENSE COUNSEL: Okay. Telephone contact. Just
kind of goes to his lack of -- of contact with the
children. Mom doesn't facilitate any telephone contact.
He calls -- and this is, again, certified to in his
Certification. He calls and texts them and doesn't get
returned calls.

THE COURT: Do they -- the girls have cell phones?

PLAINTIFF: Yes.

DEFENDANT: Yes. I got –

DEFENSE COUNSEL: Yes.

DEFENDANT: I paid for them.

THE COURT: Who do you text[?]

DEFENDANT: Both - - both daughters.

THE COURT: And they've not [returned] your texts?

DEFENDANT: Usually not.

THE COURT: Do they return your phone calls?

DEFENDANT: No. Almost never.

THE COURT: Yesterday there [was] testimony . . . the
last visit you had with your children was when? . . .

DEFENDANT: Last Friday I . . . took them to dinner,
Buffalo Wild Wings, for an hour.

THE COURT: Where?

(Attorney Confers with Client)


                          14
                                                          A-3793-17T2
             DEFENDANT: [I]'m sorry. [Plaintiff] took them and
             waited in the parking lot, I think.

             PLAINTIFF: No.

      Plaintiff's counsel argued that "[t]his isn't a case of physical abuse. It's a

case of allegations of emotional issues[.]" According to plaintiff's counsel, Dr.

Hamway was not willing to participate in court proceedings or offer an opinion

on how the court should decide the custody issue. The record shows the judge

was sympathetic to plaintiff's counsel position and expressed his frustration with

Dr. Hamway's unwillingness to provide the court with his opinion on this

contentious matter.

             THE COURT: I'm particularly bothered by the fact that
             we're getting second and third-hand snippets of Dr.
             Hamway. There are no Medical Reports. There's no
             Counseling Reports, no Psychology Reports, no School
             Reports. There's nothing that . . . tells me . . . that
             explains why the Court Order is not being followed.

      At this point, plaintiff's counsel asked the judge to interview the children

directly. The judge did not respond to plaintiff's counsel request or otherwise

address this issue. The judge made clear, however, that he was prepared to

enforce the parenting time approved by the court in the amended MSA and

memorialized in the Consent Order "[b]ecause no 14 year old and no 12 year old

[sic] . . . are going to drive this bus." At the conclusion of this hearing, the judge

made the following statement:

                                         15
                                                                             A-3793-17T2
            These . . . are very difficult matters because it's difficult
            to raise children. And it's particularly difficult for
            divorced parents to raise children. And there's a fine
            line between alienation . . . by the parent of primary
            residence and children not just wanting to move from
            place to place and perhaps not be with their father.
            We're going to come up with some resolution today.
            Okay. Their relief is going to be granted.

      At this point, the judge reviewed the public policy and statutory standards

codified in N.J.S.A. 9:2-4, and addressed the parties as follows:

            [T]he [L]egislature, when they came up with this
            enactment, which really follows hundreds of years of
            common law of religious tradition, of general morals
            and ethics in the communities over the years, did not
            talk about cheer, 4 did not talk about after school
            activities. Their obligation, these children, is to follow
            the Court Order.

            If they lock themselves in their room, they lock
            themselves in their room. They do that at home.
            Children at home do that all over the world every day.
            They don't want to see a parent, they don't [want] to talk
            to a parent, they lock themselves in their room. That's
            simple when the parents are on the same page. You tell
            them, get out of the room, or you take away the phone,
            or they don't go to cheer, or you do something as a
            parent to discipline the children to make sure that they
            obey you.

            They can . . . [defendant], I'm not going to drag them
            out of the room. If they go to your house three days in

4
  The judge's comment about "cheer" relates to a part of plaintiff's testimony in
which she explained that the older girl was actively involved in cheerleading at
school. The team participates in competitive activities on weekends, which at
times conflict with her attendance in Hebrew School.
                                       16
                                                                            A-3793-17T2
            a row and they stay in their room with no cell phone,
            no TV, no music, that's their business. My guess is that
            at some point in time they'll come down to a -- to a
            communal area where they can use a phone, where they
            can watch TV, where they can listen to music, and have
            their friends over. It's just my guess. I don't know your
            children.5

      The judge ordered the parties and their counsel to confer in a nearby room

and develop a mutually acceptable schedule that would gradually require the

girls to have overnight parenting time with defendant. The judge also ordered

the attorneys to call him on a weekly basis to report how the reconfigured

parenting time plan was working. The judge characterized this as akin to a

"status conference call." He also made clear the goal was for defendant to have

the girls overnight "within ten days" and "a full weekend" within twenty days.

      Plaintiff's counsel also apprised the judge that the parties had agreed to

retain a parenting coordinator with "binding authority pending any application

before [the court]." This agreement would be implemented within ten days.

Heather, the youngest daughter, would attend Hebrew School on Sundays.




5
  The judge also cited to Beck v. Beck, 86 N.J. 480, 499 (1981), in which the
Supreme Court held that when recalcitrant parents act in a manner that "deprive
the child of the kind of relationship with the other parent that is deemed to be in
the child's best interests, removing the child from the custody of the
uncooperative parent may well be appropriate as a remedy of last resort."

                                        17
                                                                          A-3793-17T2
Kadance would continue to attend "confirmation academy 6 through [the] current

session. And then the parties [would] reevaluate whether or not she's going to

continue in the future." The parties also sought guidance from the judge on how

to sanction the children if they were unwilling to cooperate with this modified

parenting time arrangement. Defendant's counsel suggested the removal of their

cellphones but expressed concern that the children would blame defendant.

         The record shows the judge wanted to make clear to the children that these

custodial arrangements were ordered by the court and would be enforced by the

court.

               THE COURT: Okay. These kids want to blame
               somebody, they can come in here. And I'll -- and they'll
               hear me and I'll hear them.

               DEFENSE COUNSEL: Okay. But we also -- I guess
               what we were asking -- and I think the parties wanted
               to hear from Your Honor, if you had any further
               suggestions. Because the problem has been that the
               kids don't want to go to parenting time for whatever
               reason. So -- you know, [plaintiff], I think, is
               concerned. How do I get these kids to comply? And
               beyond the cell phone thing, I don't really know what
               else to do . . . to convince these kids –

                     ....

               THE COURT: I want this . . . provision in the [Consent]
               Order. The children are directed to comply with this

6
 As explained by the parties, confirmation academy is an aspect of Hebrew
School.
                                    18
                                                                          A-3793-17T2
            Order. They will be subject to sanctions if they do not
            comply. Including loss of cell phone privileges, loss of
            internet privileges, loss of social media, loss of
            extracurricular activities, loss of travel.

            DEFENSE COUNSEL: Okay. Thank you, Your Honor.

            THE COURT: And I want the parents -- and -- you
            know, I can't -- I'm not there. I don't know how you're
            going to spin it to them. But I want them to realize this
            is . . . not coming from [defendant] or [plaintiff], this is
            coming from me. And I want direction in there at the
            [c]ourt's . . . own direction7 that that is what I'm going
            to order.

      The parties and counsel conferred as ordered and worked out a modified

parenting time schedule that sketched out the material parts of the agreement in

five handwritten pages. Plaintiff's counsel also described the details of the

arrangement on the record. This modified agreement required the parents to

attend a therapy session with Dr. Hamway "where they're both going to air out

any of their disputes that they may have or their misunderstandings from Dr.

Hamway. So Dr. Hamway can tell both of the parties together what his

anticipation is for the ongoing sessions."

      The parties did not submit a formal typewritten, fully executed consent

order to the court. On April 4, 2018, the day following the hearing that produced




7
  Although the transcript reflects "direction," we believe the judge intended to
say "discretion."
                                       19
                                                                           A-3793-17T2
the handwritten parenting agreement, the court issued a sua sponte order

directing the parties to appear on April 25, 2018 for a hearing. The caption of

the order stated: "Failure to Submit Consent Order."

      The parties did not appear before the judge on April 25, 2018 as ordered.

Instead, the judge conducted an off-the-record telephone conference with

defendant's counsel and plaintiff's recently retained substitute counsel. At the

end of this impromptu telephone conference, the judge summarized on the

record the discussions he had with counsel. A transcript dated April 25, 2018,

contains the following prefatory comments from the judge:

            Neither the parties, nor their attorneys, are here. This
            morning at about 8:30, I had a conference call which
            lasted about 15 or 20 minutes with [defendant's counsel
            and the attorneys] representing . . . plaintiff. That call
            was not on the record. I told the parties that I would be
            putting certain findings and a recap of the call on the
            record this morning. They could order that if they
            wanted.

                  ....

            This is . . . essentially, a case where the defendant is
            alleging that the plaintiff has alienated the children
            against him.

      According to the judge, plaintiff's substitute counsel suggested the court

appoint Dr. Hamway as the "Reunification Therapist" because he was familiar

with the parties' travail. The judge advised the attorneys that he was not willing


                                       20
                                                                         A-3793-17T2
to take this action without: (1) hearing directly from Dr. Hamway; and (2)

determining who was responsible for violating the agreement that was placed on

the record on April 2, 2018.

      Instead, in an order dated April 27, 2018, the judge appointed Dr. Marcy

Pasternak "as the reunification therapist in this matter" and held the parties

equally responsible for the cost of the reunification therapy, "without prejudice

and subject to allocation." The judge also prohibited the attorneys from sending

Dr. Pasternak "any correspondence, reports, notes or other documents . . . unless

she requests the information."       The judge ordered Dr. Hamway and Dr.

Pasternak "to cooperate with one another," but made clear that the therapy

reunification sessions with Dr. Pasternak had priority over "athletics, social

functions, parenting time, and extracurricular activities." He also made plaintiff

responsible for bringing the girls to the therapy sessions and prohibited the

parents from texting or calling the girls "during reunification sessions." The

judge specifically ordered plaintiff "not [to] wait outside during the reunification

sessions."

      The judge appointed attorney Amy Shimalla as Parenting Coordinator and

made the parties equally responsible for the cost of Shimalla's services, "without

prejudice and subject to allocation." The judge ordered Shimalla to prepare and

submit for his review an order appointing her Parenting Coordinator by May 2,

                                        21
                                                                           A-3793-17T2
2018 and directed the parties to sign Shimalla's retainer agreement by May 9,

2018. The judge directed that "[a]ll previous orders shall continue in full force

and effect except to the extent modified by this Order." Finally, the judge made

clear that the April 27, 2018 order "addresses the issues which were the subject

of the consent order."

      In the Statement of Reasons in support of his decision to enter this sua

sponte order, the judge explained that he imposed this arrangement based on

certain admissions made by plaintiff's counsel during the April 25, 2018

telephone conference. Specifically:

            The plaintiff, through counsel, does not deny the
            allegation that she travelled to the Kalahari Resort at
            the time [defendant] took his daughters to that resort.
            She admits, through her attorneys, that she exchanged
            over 160 text messages with their daughter [Heather]
            during the Kalahari trip.

      Based on these alleged off-the-record admissions by plaintiff's counsel,

the judge concluded:

            It is clear that the plaintiff is interfering with the
            defendant's efforts to have a meaningful relationship
            going forward. She apparently discharged her last
            attorney shortly after the plaintiff and her prior counsel
            consented to an increase in parenting time. Due to the
            plaintiff's actions, the matter is presently scheduled for
            a dismissal of the defendant's motion because the
            parties failed to submit the consent order.



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      The judge concluded his Statement of Reasons with the following

admonition: "The plaintiff needs clearer direction and must understand that

there will be consequences for continued interference. She is put on notice that

sanctions will be imposed if she fails to abide by Court Orders."

      Plaintiff filed her Notice of Appeal from the April 27, 2018 order that

same day. Defendant filed a second OTSC before the same Family Part judge

on May 1, 2018, seeking nearly the identical relief he sought in the first OTSC,

namely: (1) immediate transfer of residential custody of the two teenage girls;

(2) supervised communication when plaintiff contacts the girls; (3) an order for

plaintiff to submit to psychiatric evaluation; (4) directing plaintiff to cooperate

with a custody evaluation; (5) holding plaintiff in violation of litigant's rights on

a variety of grounds; and (6) a variety of sanctions, including awarding

defendant counsel fees.

      On May 4, 2018, plaintiff filed her opposition to the OTSC. The parties

and their counsel appeared before the judge that same day. Defendant's counsel

argued that her client merely sought the enforcement of the relief already

awarded by the court, specifically: (1) the agreement reached on April 3, 2018;

(2) the court's sua sponte April 27, 2018 order; and (3) the relevant provisions

of the MSA. In response, the judge summarized the case's procedural saga and



                                         23
                                                                            A-3793-17T2
asked the attorneys whether the Family Part had jurisdiction to adjudicate

defendant's second OTSC pursuant to Rule 2:9-1(a) and Rule 5:3-7.

      At the judge's request, the attorneys stated for the record that on April 3,

2018, the parties reached an agreement to modify the parenting time schedule

reflected in the MSA. However, plaintiff's new counsel specifically quoted a

part of the April 3, 2018 transcript in which the judge ordered the parties "to

have within 10 days one overnight [visit and] . . . to work out weekly visits and

Dr. Hamway." The judge directed the parties to sign a draft order by the end of

the day. The judge found the parties did not submit the signed order as directed.

Consequently, the judge held "there is no April 3rd, 2010, order. And I am not

finding the plaintiff in violation of any court order of April 3rd, 2010 . (sic)."

      Against this backdrop, the judge made the following findings:

             THE COURT: [T]here are two different documents that
             I find are the current order in this matter.

             PLAINTIFF'S COUNSEL: Your Honor.

             THE COURT: Yes.

             PLAINTIFF'S COUNSEL: So I believe from a
             technical perspective, the most recent order entered is
             the judgment of divorce, it is dated November 14th,
             2017. And that's prior to the April 27th order. That
             document incorporated three preexisting documents,
             the MSA, the amendment to the MSA, and the June 2nd,
             2017, consent order.


                                         24
                                                                            A-3793-17T2
              THE COURT: Right.

              PLAINTIFF'S COUNSEL: But the most recent order is
              the judgment of divorce, incorporating the three prior
              documents.

              THE COURT: Okay. Do you agree with that,
              [addressing defendant's counsel]?

              DEFENDANT'S COUNSEL: I do, Your Honor.

      Ultimately, the judge denied without prejudice defendant's OTSC dated

May 2, 2018, and found the version of the MSA dated June 6, 2016 remained in

full force and effect and is subject to enforcement pursuant to Rule 1:10-3 and

Rule 5:3-7.

                                       IV

      In this appeal, plaintiff argues the Family Part's April 27, 2018 order must

be vacated because: (1) the judge proceeded in this case in a manner that denied

plaintiff the right to procedural due process; (2) the judge made material

modifications to the carefully crafted parenting time arrangement the parties

negotiated and agreed to in the MSA without making any findings that these

changes were in the best interest of the children; and (3) the judge abused his

discretionary authority by failing to afford the two teenaged girls most affected

by these changes with the opportunity to have their points of view considered in

the manner provided by Rule 5:8-6. We agree and reverse.


                                       25
                                                                         A-3793-17T2
      We start our analysis by addressing plaintiff's criticism of the manner the

Family Part judge managed and ultimately disposed of this case. "'Trial judges

are given wide discretion in exercising control over their courtrooms' and have

'the ultimate responsibility of conducting adjudicative proceedings in a manner

that complies with required formality in the taking of evidence and the rendering

of findings.'" N.J. Div. of Child Prot. & Permanency v. A.B., 231 N.J. 354, 366

(2017) (quoting Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264

(App. Div. 2002)). Here, the record shows the judge interacted with both the

attorneys and the parties they represented in an informal manner that "ultimately

undermined the solemnity and decorum necessary for effective courtroom

management." D.A. v. R.C., 438 N.J. Super. 431, 461 (App. Div. 2014).

      This informality began with defendant's April 1, 2018 OTSC, and

consistently tainted the proceedings. The judge permitted defendant to provide

ex parte testimony predicated on the same allegations of impropriety defendant

raised in his Motion to Enforce Litigant's Rights filed on March 27, 2018. The

judge questioned defendant ex parte on the substance of his allegations against

plaintiff without making a threshold finding that: (1) defendant's relief was

necessary to prevent irreparable harm; (2) his legal rights underlying the

allegations were settled; (3) defendant had a reasonable probability of ultimate

success on the merits; and (4) the relative hardship to the parties in granting or

                                       26
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denying relief favored granting defendant's application. Crowe v. De Gioia, 90

N.J. 126, 132-34 (1982).

      Despite this analytical void, the record shows the judge continued this line

of inquiry with defendant until his court clerk informed him that plaintiff's

counsel had contacted the court and requested to participate telephonically in

this hearing. The judge's colloquy with counsel revealed the parties' tumultuous

relationship with their children that included the parenting time arrangement the

parties negotiated in the MSA and the matrimonial judge sanctioned and

incorporated into the JOD.     The record also shows that plaintiff's counsel

repeatedly asked the judge for an opportunity to formally respond to defendant's

allegations to provide the court with a balanced account of the events that led to

this OTSC.

      The judge rejected plaintiff's reasonable request and ordered the parties

and their attorneys to appear before him at 8:30 a.m. the following day, April 3,

2018. The judge's recalcitrance in this respect served only to exacerbate an

already chaotic situation. This unstructured approach lacked the decorum and

solemnity necessary to conduct a valid adjudicative proceeding. The judge's

impromptu decision to require the parties and their counsel to come up with a

plan to compel the girls to spend time with their father, as provided under the

MSA, proved to be equally ineffective. The tentative agreement the attorneys

                                       27
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outlined in a handwritten, multi-page document, which the parties signed that

day, was never implemented.

      In the course of the April 3, 2018 hearing, the judge emphasized that "no

14 year old and no 12 year old . . . are going to drive this bus." Judges are not

omnipotent. Children, especially adolescents going through this family crisis,

have a will of their own. The futility of the extra-judicial, ad hoc approach the

judge employed here to compel these two teenage girls to spend time with their

father exemplifies our limitations as jurists.

      The judge's failure to respond or even acknowledge plaintiff's counsel's

request that he interview the children and defendant's request to transfer the

custody of the children to him constituted reversible error. Rule 5:8-6 provides,

in relevant part:

             Where the court finds that the custody of children is a
             genuine and substantial issue . . . the court may on its
             own motion or at the request of a litigant conduct an in
             camera interview with the child(ren). In the absence of
             good cause, the decision to conduct an interview shall
             be made before trial. If the court elects not to conduct
             an interview, it shall place its reasons on the record.

      As this court made clear in D.A., among the factors the Legislature

required a court to consider when making an award of custody is "the preference

of the child when of sufficient age and capacity to reason so as to form an

intelligent decision[.]" 438 N.J. Super. at 458 (quoting N.J.S.A. 9:2-4(c))

                                        28
                                                                        A-3793-17T2
(emphasis omitted). The judge did not comply with the requirements of Rule

5:8-6 by not responding directly to plaintiff's counsel's request for the court t o

interview the children.    The judge also violated N.J.S.A. 9:2-4(c) by not

considering the children's views at a time when both girls were "of sufficient

age and capacity to reason so as to form an intelligent decision." The judge

erred by failing to consider, as required by N.J.S.A. 9:2-4(c), the children's

views at the time when both were "of sufficient age and capacity to reason so as

to form an intelligent decision."

      We are equally troubled by the breadth and scope of the April 27, 2018

order, which requires the parties to retain a parenting coordinator and a

reunification therapist without any input from the attorneys representing the

parents. We thus vacate the April 27, 2018 order and remand the matter to the

Family Part for the court to conduct a plenary hearing in which he shall consider

the relevant statutory and regulatory standards to determine whether a change in

residential custody is in the best interest of the children. The court may expand

the scope of the hearing to address any issues affecting the parenting time of a

parent.

      The judge shall apply the standard in Rule 5:8-6 to determine if

interviewing these two teenaged girls is in their best interest.



                                        29
                                                                          A-3793-17T2
             If the judge elects to interview [the children], (as the
             prevailing circumstances here strongly indicate he
             should), Rule 5:8-6 mandates the court to: (1) conduct
             an interview with the child in camera; (2) "afford
             counsel the opportunity to submit questions for the
             court's use during the interview"; (3) "place on the
             record its reasons for not asking any question thus
             submitted"; (4) create and preserve a stenographic or
             recorded audio record of each interview in its entirety;
             and (5) provide transcripts of the interview(s) to
             counsel and the parties upon request and payment for
             the cost.

             [D.A., 438 N.J. Super. at 459 (internal citation
             omitted).]

      Finally, plaintiff has requested that we remand this case to another judge.

Pursuant to Rule 1:12-1(g), a judge is disqualified from presiding of a case

"when there is any . . . reason which might preclude a fair and unbiased hearing

and judgment, or which might reasonably lead counsel or the parties to believe

so." Our Supreme Court has adopted the following standard to assess whether

a judge's personal behavior creates an appearance of impropriety: "Would an

individual who observes the judge's personal conduct have a reasonable basis to

doubt the judge's integrity and impartiality?" In re Reddin, 221 N.J. 221, 223

(2015).

      Here, in the course of these proceedings, the judge made a number of

statements   that   touched   upon    plaintiff's   credibility   based   only    on

unsubstantiated allegations made by defendant in his certifications.         Under

                                       30
                                                                           A-3793-17T2
these circumstances, we are satisfied that a person in plaintiff's position would

have a reasonable basis to doubt the judge's impartiality. In reaching this

conclusion, we do not in any way intent to impugn the judge's integrity or imply

the judge violated any of the canons of judicial conduct. As we made clear in

P.M. v. N.P.:

            Given this exalted place marriage as an institution
            occupies in our society, litigants embroiled in the legal
            dissolution of their union are often emotionally
            traumatized. They bring to these legal proceedings a
            deep sense of disappointment and an element of distrust
            that is rooted in the nature of the dissolution itself. Our
            Supreme Court has consistently recognized that judges
            who sit in the Family Part have a great sensitivity to
            these concerns and bring a high level of expertise to
            these emotionally fragile matters. See N.J. Div. of
            Youth & Family Servs. v. R.G., 217 N.J. 527, 553
            (2014) (citing Cesare v. Cesare, 154 N.J. 394, 412-13
            (1998)). We thus expect our colleagues who sit in this
            legally difficult and emotionally demanding Part of the
            Chancery Division to be especially mindful of the
            challenges associated with this assignment.

            [441 N.J. Super. 127, 147 (App. Div. 2015).]

      On remand, the Presiding Judge of the Family Part of this vicinage shall

reassign this matter to another judge.

      Reversed and remanded. We do not retain jurisdiction.




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                                                                          A-3793-17T2
