STATE OF NEW JERSEY VS. TIMOTHY C. AMAN (13-11-1049 and 14-07-0548, CAPE MAY COUNTY AND STATEWIDE)(RECORD IMPOUNDED)
A-1029-15T3
| N.J. Super. Ct. App. Div. | May 23, 2017Background
- Parties (never married) share a daughter born in 2005; they entered a consent order in 2012 giving plaintiff primary residence and defendant alternate weekend and Wednesday parenting time.
- Disputes over implementation led to mediation and a detailed Shared Parenting Plan Agreement (SPPA) incorporated into a 2013 consent order allocating regular, holiday, and summer schedules.
- Plaintiff moved in 2014 to modify the SPPA (change weekend end time, eliminate Wednesday evenings, modify summer schedule), alleging defendant’s inconsistent compliance and refusal to mediate; defendant counterclaimed for sole custody or equal parenting time.
- The court ordered psychological evaluations; the evaluator concluded the SPPA was appropriate but implementation and parental communication were problematic.
- On May 15, 2015 the Family Part judge denied sole custody, denied plaintiff’s modification motion, but granted defendant additional regular parenting time (overnights Wednesdays and certain Saturdays), and denied plaintiff’s request to return to mediation.
- Subsequent dispute over whether the May 15 order altered the summer schedule led to a second judge enforcing the May 15 order (including summer), finding plaintiff in violation and awarding defendant counsel fees; plaintiff appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court erred by not referring the dispute to mediation under Rule 5:8-1 | Arce-Pinto: Rule 5:8-1 required referral because custody/parenting-time issues were genuine and substantial; she asked to mediate | Alcius: opposed or resisted mediation previously; contested necessity | Court: Reversed — trial court erred; Rule 5:8-1 required referral and case-management to enable mediation before further modification proceedings. |
| Whether the court properly modified the SPPA without a plenary hearing or showing changed circumstances | Arce-Pinto: No showing of changed circumstances; hearing was not a true plenary (no testimony, limited discovery) so modification improper | Alcius: modification appropriate given implementation disputes and request for more parenting time; plenary not required | Court: Remanded — after mediation (if it fails), court must consider evidence anew and allow appropriate limited discovery; plenary hearing decision left to motion judge. |
| Whether the second judge correctly interpreted/enforced the May 15, 2015 order (including summer schedule) and found plaintiff in violation | Arce-Pinto: May 15 order did not change summer schedule; clerk email and judge’s remarks support that vacation schedule remained unchanged | Alcius: May 15 order granted increased parenting time year-round, including summer | Court: Reversed — unclear that May 15 order altered summer schedule; plaintiff’s interpretation was reasonable, so enforcement and fee award reversed. |
| Whether the first judge should have recused and whether denial of recusal was error | Arce-Pinto: prior county board affiliation created appearance of impropriety; judge should have recused and vacated orders | Alcius: no actual or apparent conflict; judge’s prior service remote and not disqualifying | Court: Affirmed — no abuse of discretion; reassignment already occurred and alleged conflict was insufficient. |
Key Cases Cited
- Cesare v. Cesare, 154 N.J. 394 (1998) (family-court factual findings entitled to substantial deference)
- MacKinnon v. MacKinnon, 191 N.J. 240 (2007) (appellate review standards for trial findings)
- D.A. v. R.C., 438 N.J. Super. 431 (App. Div. 2014) (Rule 5:8-1 mediation requirements and case-management guidance)
- Lepis v. Lepis, 83 N.J. 139 (1980) (burden to show changed circumstances before custody/parenting modification)
- Hand v. Hand, 391 N.J. Super. 102 (App. Div. 2007) (when plenary hearing is required for genuine factual disputes)
- DeNike v. Cupo, 196 N.J. 502 (2008) (recusal standard—appearance of partiality)
- Panitch v. Panitch, 339 N.J. Super. 63 (App. Div. 2001) (recusal review rests in trial court discretion)