                               NOT FOR PUBLICATION WITHOUT THE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-1872-17T2

H.M.,1

          Plaintiff-Appellant,

v.

M.E.,

     Defendant-Respondent.
_______________________________

                   Submitted September 12, 2018 – Decided October 29, 2018

                   Before Judges Sabatino and Sumners.

                   On appeal from Superior Court of New Jersey,
                   Chancery Division, Family Part, Hunterdon County,
                   Docket No. FM-10-0269-16.

                   The Law Office of Rajeh A. Saadeh, LLC, attorneys for
                   appellant (Rajeh A. Saadeh and Kelscey A. Boyle, on
                   the brief).

                   Norris, McLaughlin & Marcus, attorneys                                         for
                   respondent (Jeralyn L. Lawrence, on the brief).


1
   We use the parties' initials because we reference defendant's mental health
history.
PER CURIAM

      In this post-judgment divorce matter, the trial judge entered an order under

Rule 4:42-1(c), commonly referred to as the five-day rule, denying the motion

of plaintiff father to obtain primary residential custody of his three-year-old

daughter and granting the motion of defendant mother to retain primary

residential custody pursuant to the parties' marital separation agreement (MSA).

The judge also determined that, alternatively, plaintiff's motion should be

dismissed as a discovery sanction under Rule 4:23-2(b). We reverse and remand

mainly because we conclude that the judge should not have applied the five-day

rule to enter the order, which did not memorialize a prior ruling by the judge

concerning custody, and that there was no violation of a discovery order to

warrant the sanction of dismissal. In addition, an informed judicial assessment

of this child's current best interest warrants a plenary hearing.

      It is not necessary to detail the sordid allegations of the parties ' divorce

proceedings. Suffice it to say, their almost five-year arranged marriage involved

accusations of abuse – physical, emotional and sexual – and mental instability.

A May 11, 2017 final judgment of divorce incorporated the MSA, in which it

was agreed the parties would share joint legal custody of their then two-and-a-

half-year-old daughter with defendant being primary residential parent.


                                                                           A-1872-17T2
                                         2
      Six weeks after the divorce, plaintiff filed an ex parte emergent order to

show cause on June 21, seeking temporary residential custody of his daughter;

alleging defendant was mentally ill based upon her admission into a mental

health facility and was unable to safely care for the child. The trial judge only

granted plaintiff temporary residential custody and denied his request to

"immediately change the parties' custody arrangement."        The order further

indicated that both parties may file motions regarding custody of their daughter.

A return date was set for July 7.

      After defendant was released from the mental health facility eight days

later – having been there for a total of nine days – she submitted her own order

to show cause application to vacate the June 21 order and other relief based upon

her contention that defendant's order to show cause application contained biased,

deceitful, and unethical accusations. The judge denied the application; noting

that the issues regarding the MSA's custody arrangements would be determined

on July 7.

      Five days after the July 7 argument, the judge amended plaintiff's

temporary custody of his daughter through entry of the July 12 order to allow

parenting time by defendant, supervised by her parents. The order also required

defendant to be evaluated by psychologist, Dr. Charles Most. The judge rejected


                                                                         A-1872-17T2
                                       3
plaintiff's request that defendant be evaluated by a psychiatrist. Of note, during

argument, the judge cautioned plaintiff, himself, a licensed psychiatrist, that he

was not an expert witness in the dispute, and thus, should refrain from offering

his professional opinion about defendant's mental health to further his goal of

obtaining residential custody of his daughter.

      After Dr. Most issued his report to the judge and the parties, a case

management conference was held on August 29, to address all parenting issues.

Following argument, the judge entered an order that day, returning the

residential custody of the daughter to defendant. Relying upon his clinical

interviews of both parties, psychological testing of defendant, and review of

legal documents and defendant's medical records, Dr. Most reported that

defendant was stable after being hospitalized for post-traumatic stress disorder,

and was of "sound mind so that she can be unsupervised in her contact with her

daughter." The judge thus found that defendant did "not appear to be a danger

to herself or others and the parenting schedule contained in the parties' [ MSA

was] reinstated effective immediately."

      The order set an October 20 return date for oral argument and a briefing

schedule to address whether there were changed circumstances solely due to

defendant's mental health to warrant a change in residential custody of the


                                                                          A-1872-17T2
                                        4
daughter to plaintiff. The order also gave plaintiff the opportunity to brief

whether he could render an expert opinion regarding defendant's medical

condition. During argument, the judge preliminarily stated her concern that it

appeared to be a conflict for plaintiff to provide such opinion when he was a

party in the case.

      Thereafter, plaintiff filed a motion to grant him sole and residential

custody of his daughter. Defendant cross-moved for enforcement of the MSA,

attorney fees and costs, monetary sanctions against plaintiff, and requested that

the judge report plaintiff's allegedly fraudulent, unethical, and meritless

diagnosis of defendant's medical condition to the Board of Medical Examiners.

      On October 20, 2017, shortly after motion argument, the judge entered an

order, together with a statement of reasons, requiring a plenary hearing be held

"on or after January 20, 2018[,] on the issue of child custody." It was further

ordered, in pertinent part, that the parties were allowed a limited discovery

period: propounding of interrogatories and notices to produce within twenty

days of the order; the production of expert reports to the court and opposing

counsel by December 1, 2017, with reply expert reports by December 28; and

the taking of depositions by January 1, 2018.       The order made clear that

discovery was limited to "the issue of how [d]efendant's diagnosis affects her


                                                                         A-1872-17T2
                                       5
fitness as a parent only," thus, "[d]iscovery with regards to other issues [was]

prohibited." In addition, since plaintiff did not submit a brief addressing his

request to testify as an expert witness, the order specifically limited his possible

testimony to facts and not as an expert expressing his medical opinions. The

judge denied all other requested relief.

      Thereafter, in response to plaintiff's counsel's letter and a reply letter by

defendant's counsel, the judge issued a November 9 letter to counsel clarifying

that discovery and the plenary hearing were limited to whether residential

custody of the daughter should change due to defendant's mental health.

Undeterred, plaintiff's counsel sent the judge a November 15 letter, seeking the

entry of an order memorializing "that the plenary hearing will be limited to

whether . . . defendant's mental disorder(s) is [a] changed circumstance[] from

the time of the divorce." The judge did not reply.

      On December 4, defendant's counsel sent the judge a letter advising her

that plaintiff had not made "a single discovery demand, nor have we received an

expert report from [plaintiff]."    Defendant requested that the judge sign a

proposed order, submitted under the five-day rule, denying plaintiff's

application for sole and residential custody and granting her application for

residential custody of their daughter.         In support, defendant cited the


                                                                            A-1872-17T2
                                           6
recommendations of Dr. Most and defendant's treating doctor, Moustafa Shafey,

M.D., who both supported defendant's request "to maintain the custody and

parenting time arrangement set forth in the . . . [MSA]."

        Plaintiff's counsel objected to entry of the proposed order in a December

7 letter to the judge. He wrote:

              There are reasons why we have not retained an expert
              for the limited discovery purpose permitted by your
              Honor or propounded written discovery upon the
              defendant. We intend to take depositions of the two
              non-party experts involved in this matter within the
              extraordinarily limited time, during the holidays,
              permitted by Your Honor, and we remain optimistic
              that Your Honor's interlocutory inclinations respecting
              this matter will be [a]mended upon the conclusion of
              this first of an unorthodox series of trials.

        The next day, plaintiff's counsel sent a letter to the judge advising that a

Dr. Schnaidman 2 has been retained as an expert. There is no indication in the

record that a report by Dr. Schnaidman was submitted. Expert reports were due

seven days earlier on December 1.

        In response, defendant's counsel wrote to the judge on December 12,

renewing his request that the judge enter the proposed five-day rule order.

Defendant contended plaintiff failed to comply with the October 20 order



2
    The doctor's first name was not mentioned in the letter.
                                                                            A-1872-17T2
                                          7
without any "substantive" reason, and did not properly apply for relief from the

order. Defendant further pointed out that plaintiff "failed to set forth any

substantive, let alone specific objection to [plaintiff's] requested relief" of

maintaining residential custody of their daughter. That same day, defendant's

counsel sent a letter to plaintiff's counsel advising that plaintiff's expert could

not evaluate defendant because the discovery period ended fourteen days earlier.

Three days later, on December 15, the judge entered defendant's proposed order

under the five-day rule, together with a statement of reasons, denying plaintiff's

application for residential custody of the daughter "in its entirety," granting

defendant's request "to enforce the custody and parenting time arrangement"

under the MSA, and cancelling the plenary hearing. The judge ruled that even

if the five-day rule did not apply, plaintiff's pleadings should be dismissed as a

sanction under Rule 4:23-2(b) for failure to provide discovery. The same day

the judge issued the order, plaintiff's counsel wrote a letter to the judge asking

that she "coerce" defense counsel to allow his expert to examine defendant

without having to file a motion. The letter requested the judge's staff to advise

if a motion should be filed. This appeal followed. 3


3
  While the appeal was pending, plaintiff filed a motion to remand the matter to
the trial court for the limited purpose of addressing the education of the parties'


                                                                           A-1872-17T2
                                        8
      Plaintiff contends that the judge erred by invoking the five-day rule to

dismiss his application to obtain residential custody of his daughter and grant

defendant's application to maintain the custody arrangement in the MSA because

the rule did not apply to the situation at hand.

      The judge's statement of reasons provided that she entered the order under

the five-day rule because plaintiff "completed no discovery and did not even

hire an expert until . . . one week after the expert reports were to be provided to

the [c]ourt and opposing counsel," and did not "file a motion to extend

discovery." The judge noted that plaintiff's December 7 objection was frivolous

because he did not explain the failure to retain an expert or propound discovery.

She therefore reasoned that, without an "expert to testify as to [d]efendant's

mental health and its effect on her ability to parent, [plaintiff] is unable to meet

his burden and his application cannot be successful." The judge found support

for applying the five-day rule by citing to an unpublished opinion of this court

without explaining its persuasive reasoning.

      Based on our review of the five-day rule, we agree with plaintiff's

contention. Rule 4:42-1 establishes three alternative means by which a proposed




daughter. However, the parties settled that discrete issue and the motion was
withdrawn.
                                                                            A-1872-17T2
                                         9
form of order may be entered. The provision in question, the five-day rule,

provides:

            Settlement on Notice. In lieu of settlement by motion
            or consent, the party proposing the form of judgment or
            order may forward the original thereof to the judge who
            heard the matter and shall serve a copy thereof on every
            other party not in default together with a notice
            advising that unless the judge and the proponent of the
            judgment or order are notified in writing of specific
            objections thereto within 5 days after such service, the
            judgment or order may be signed in the judge's
            discretion. If no such objection is timely made, the
            judge may forthwith sign the judgment or order. If
            objection is made, the matter may be listed for hearing
            in the discretion of the court.

            [R. 4:42-1(c).]

     The provision was meant

            to address the problem caused by attorneys to whom a
            form of judgment or order was submitted who then
            failed, whether by neglect, design or because of
            disagreement with its contents, to sign and return it to
            the proponent. . . . The clear intent of the rule is that in
            the absence of objection the court should sign the
            proposed order or judgment if it finds the terms thereof
            to constitute an accurate statement of its disposition . .
            . . It is, of course, clear that an order should never be
            either submitted or signed under this rule unless it
            accurately memorializes court dispositions, is
            submitted following default, or has all parties' consent
            endorsed thereon.

            [Pressler & Verniero, Current N.J. Court Rules, cmt. 3
            on R. 4:42-1 (2014) (citing City of Jersey City v.

                                                                           A-1872-17T2
                                       10
            Roosevelt Stadium Marina, Inc., 210 N.J. Super. 315
            (App. Div. 1986)).]

      Defendant's submission of the proposed five-day order was not a

memorialization of a prior court disposition because the judge never made a

ruling and the parties never agreed to settlement terms on the record. City of

Jersey City, 210 N.J. Super. at 331. In essence, defendant sought summary

dismissal of plaintiff's application without filing a motion for summary

judgement. The five-day rule should not be applied in this fashion, especially

where a decision on residential custody of a child is at stake.

      The judge cited her prior order that plaintiff needed to present an expert

at a plenary hearing to prove defendant's mental health justified a change in

circumstances to obtain residential custody of the daughter. However, the order

did not dispose of the custody issue, but merely directed the party what proofs

were needed. While maintaining custody as set forth in the MSA could have

been the judge's ultimate disposition, it was presumptive to do so by entry of an

order via the five-day rule. Instead, the judge should have required the filing of

a motion supported with legal argument and, if requested, oral argument, to

determine custody with a possible plenary hearing if a prima facie change in

circumstance were shown.



                                                                          A-1872-17T2
                                       11
      Moreover, the judge's reliance upon an unexplained, unpublished decision

is contrary to the restrictions set forth in Rule 1:36-3 against giving such

opinions binding or precedential value. Trinity Cemetery Ass'n v. Twp. of Wall,

170 N.J. 39, 48 (2001).

      We further find some credence in plaintiff's contention that, since the

deadline for taking depositions was fifteen days away on January 1, when the

judge signed the five-day order on December 15, dismissing his application, he

could have taken and relied upon the depositions of Dr. Shafey and Dr. Most to

prove his claim that defendant was not mentally fit to retain residential custody.

We also agree with his argument that since there was no obligation on him to

propound interrogatories, the judge should not have considered the lack of doing

so as a factor in granting defendant relief. This argument also relates to the

judge's alternative basis for dismissing his application.

      Plaintiff challenges the judge's alternative basis for denying his custody

application as a discovery sanction under Rule 4:23-2(b); contending the judge

erred in finding that he did not provide or permit discovery, as there is "no law,

rule, or order" that he was obligated to propound discovery. He emphasizes that

the October 20 order gave him the option to serve interrogatory questions on

defendant, submit an expert report, and take depositions. Under the order's


                                                                          A-1872-17T2
                                       12
discovery timelines, he had time to depose plaintiff's experts when the judge

dismissed his application on December 15.         As for his "reasons" for not

propounding discovery, plaintiff cited his trial strategy at that time to rely upon

the deposition of plaintiff's experts to show that the changed circumstances of

defendant's mental health did exist to warrant a change in residential custody.

Lastly, plaintiff contends that the case law, Glass v. Suburban Restoration Co.,

317 N.J. Super. 574 (App. Div. 1998) and Abtrax Pharmaceutical, Inc. v. Elkins-

Sinn, Inc., 139 N.J. Super. 499 (1995), relied upon by the judge to support a

sanction of dismissal for failure to provide discovery is misplaced. In those

cases, unlike with him, the dismissed party failed to comply with court orders

requiring the production of discovery. Hence, plaintiff concludes there was no

justification to dismiss his application under Rule 4:23-2(b).

      Based upon our review of Rule 4:23-2(b), we agree with plaintiff that the

judge should not have applied the rule to dismiss his request for primary

residential custody as a discovery sanction. The rule permits a judge to enter an

"order striking out pleadings or parts thereof . . . with or without prejudice, or

rendering a judgment by default against the disobedient party" who "fails to

obey an order to provide or permit discovery." R. 4:23-2(b)(3). In considering

the ultimate sanction of striking a pleading, a judge must weigh the delinquent


                                                                           A-1872-17T2
                                       13
party's right to an adjudication on the merits with the other party's right to expect

compliance with the discovery rules and orders. Zaccardi v. Becker, 88 N.J.

245, 256-58, (1982). The sanction of dismissal should be used "sparingly," id.

at 253, in only "those cases in which the order for discovery goes to the very

foundation of the cause of action, or where the refusal to comply is deliberate

and contumacious." Abtrax, 139 N.J. at 514, 655 (citation omitted); see also

Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 115-16, (2005). "Since

dismissal with prejudice is the ultimate sanction, it will normally be ordered

only when no lesser sanction will suffice to erase the prejudice suffered by the

non-delinquent party, or when the litigant rather than the attorney was at fault."

Ibid. (quoting Zaccardi, 88 N.J. at 253).

      We review a court's dismissal of a pleading pursuant to Rule 4:23-2(b)(3)

for an abuse of discretion. Abtrax, 139 N.J. at 517. An abuse of discretion

occurs "when a decision is 'made without a rational explanation, inexplicably

departed from established policies, or rested on an impermissible basis.'" U.S.

Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467-68 (2012) (quoting Iliadis v.

Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).

      Measured against these standards, the judge mistakenly applied her

discretion to dismiss plaintiff's application under Rule 4:23-2(b)(3). First, and


                                                                             A-1872-17T2
                                        14
foremost, to apply the rule to impose a sanction of dismissal, the judge had to

determine that plaintiff was delinquent in providing court-ordered discovery.

There was no such order. The October 20 order simply set forth discovery

timelines in a permissive fashion, providing in: paragraph two, "the parties may

conduct limited discovery;" and paragraph three, "each party may obtain their

own experts." (emphasis added). As plaintiff notes, the case law cited by the

judge addresses situations in which dismissal of a delinquent party's pleadings

were in the face of violation of discovery orders – which does not apply to his

conduct.

      Second, while it was evident from the judge's statement of reasons that

she believed any diagnosis of defendant's mental health must be proven by an

expert, there was no reason why plaintiff could not have taken the deposition of

defendant's experts or Dr. Most, the court appointed psychologist, and use their

testimony to prove that defendant had a mental illness that showed a change in

circumstances, justified a modification of the daughter's residential custody. In

fact, plaintiff arguably could have presented any of them at the plenary hearing

in his case-in-chief – without taking their depositions – to prove his position.

Even though there was obvious risk in employing this litigation strategy, it

would be premature for us to assess its wisdom. Further, because of the manner


                                                                         A-1872-17T2
                                      15
in which the judge dismissed his application, plaintiff had no opportunity to test

his strategy.

      As for defendant's contentions that the judge erred by modifying the

custody at the August 29 case management conference and by appointing Dr.

Most, who was not a licensed psychiatrist [but a licensed psychologist], to

evaluate defendant, we conclude they are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for

the reasons expressed by the judge in her respective rulings.        We add the

following comments.

      Ordinarily, a plenary hearing is appropriate before the entry of an order

affecting the custody of a child. See, e.g., Entress v. Entress, 376 N.J. Super.

125, 133 (App. Div. 2005); Fusco v. Fusco, 186 N.J. Super. 321, 327-29 (App.

Div. 1982). Where a prior court order exists specifying the terms of residential

custody and parenting time, as is the case here, a parent seeking to alter those

terms has the burden of demonstrating a material change in circumstances that

would justify such alteration. Hand v. Hand, 391 N.J. Super. 102, 105 (App.

Div. 2007) (citing Borys v. Borys, 76 N.J. 103, 115-16 (1978)). If that showing

is made, then the Family Part generally should conduct a plenary hearing. See




                                                                          A-1872-17T2
                                       16
also R. 5:8-6 (requiring plenary hearings in custody matters where the contested

issues are "genuine and substantial").

      Lastly, because the manner in which the judge expressed her opinion

without allowing plaintiff to present his case at a plenary hearing suggests a

predetermination against the plaintiff's position, we are constrained to remand

to a different judge to conduct the hearing and decide any pre-hearing motions.

The judge shall conduct a case management within twenty days of receipt of this

decision: to determine filing dates for motions and opposition; to schedule a

reasonable period to complete any outstanding discovery that was uncompleted

at the time the December 20 order was entered; and to schedule plenary hearing

dates. The judge should be mindful of the passage of time since the order that

may have an impact of the parties' respective positions. Primary residential

custody of the parties' daughter shall remain with defendant pending the

outcome of the plenary hearing.

      Reversed and remanded. We do not retain jurisdiction.




                                                                        A-1872-17T2
                                         17
