Table
of Contents
Cover Page.................................................. i
Table of Contents.......................................... ii
Table of Authorities...................................... iii
Table of Contents to Appendix.............................. iv
Index to Transcripts...................................... xiv
Procedural History.......................................... 1
Statement of Facts.......................................... 6
Legal
Argument
I.THE
TRIAL COURT ERRED BY VACATING ITS PRIOR ORDERS THAT A PLENARY HEARING WOULD
FOLLOW THE COMPLETION OF THE EXPERT REPORT AS TO THE ABUSE ALLEGATIONS MADE
AGAINST PLAINTIFF............ 6
II.THE
TRIAL COURT ERRED BY CONTINUING THE RESTRAINTS ON PLAINTIFF'S PARENTING TIME IN
THE ABSENCE OF ANY FINDING WARRANTING SUCH RESTRICTIONS........................................... 10
III.THIS
COURT SHOULD REVERSE THE REMAINDER OF THE TRIAL COURT'S MAY 5, 2000 ORDER.......................................... 13
IV.ON
REMAND, THIS MATTER SHOULD BE HEARD BY A DIFFERENT JUDGE 15
Conclusion................................................. 16
Table of Authorities
Federal Caselaw
Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) 9, 11
Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed.
645 (1944)........................................................ 9,
11
Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed.
1070 (1925).................................................. 9,
11
Troxel v. Granville,
_____ U.S. _____,
120 S.Ct. 2054 (2000)................................... 9, 11
New Jersey Caselaw
Brill v. The Guardian Life Ins. Co. of America, 142 N.J. 520 (1995) 6
Cesare v. Cesare, 154 N.J. 394 (1998)....................... 6
In re D.C.,
146 N.J. 31 (1996).............................. 6
In re Baby M.,
109 N.J. 396, (1988), reversing 217 N.J. Super. 313, (Ch. Div.
1987)................................................. 15
In re Registrant G.B., 147 N.J. 62 (1996)................... 6
Matter of Guardianship of J.C., 129 N.J. 1 (1992)........... 6
Pascale v. Pascale, 113 N.J. 20 (1988)...................... 6
Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474 (1974) 6
New Jersey Division of Youth and Family Services. v.
A.W., 103 N.J. 591 (1986)..................................................... 15
State v. Clowney, 299 N.J. Super. 1 (App.Div.), certif. denied, 151 N.J.
77 (1997) ................................................ 7
Watkins v. Nelson, 163 N.J. 235 (2000).............. 9,
11, 16
Carmichael v. Bryan, 310 N.J. Super. 34 (App.Div.1998)..... 15
Gallo v. Gallo,
66 N.J. Super. 1 (App.Div.1961)............. 6
J.L. v. J.F.,
317 N.J. Super. 418 (App. Div. 1999)......... 15
P.T., A.T. and H.T. v.M.S., 325 N.J. Super. 193, 222 (App. Div. 1999) 6, 15
Ridley v. Dennison, 298 N.J. Super. 373 (App. Div. 1997)... 14
Shaw v. Shaw,
138 N.J. Super. 436 (App. Div. 1976).......... 6
State v. Spencer, 319 N.J. Super. 284 (App. Div 1999)....... 7
Tancredi v. Tancredi, 101 N.J. Super. 259 (App. Div. 1968).. 6
New Jersey Court Rules
R. 1:12‑1(f)............................................... 15
New Jersey Rules of Evidence
N.J.R.E. 705................................................ 7
Table
of Contents to Appendix
|
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VOLUME
I
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Pa
|
DESCRIPTION
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1-3
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Order to show cause (December 9, 1999)
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4-8
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Certification of Defendant in support of Order to
Show Cause (December 7, 1999)
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9-14
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Amended Final Dual Judgement Of Divorce
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15
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Notice of Litigants / Statement of Residence
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16-17
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Defendant's exhibit / alleged discussion with child
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18-25
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Certification of Plaintiff in opposition to Order to
Show Cause (December 14, 1999)
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26-33
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Reply Certification of Defendant
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34-35
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Order (December 22, 1999) requiring evaluation,
compelling parenting time to be supervised "pending further
proceedings" and for other relief
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36-38
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Plaintiff's Notice of Motion to set date for hearing
and to have hearing address appropriate sanctions against defendant for
having made false allegations of sexual abuse and for other relief
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39-46
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Certification in support of motion / March 30, 2000
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47-64
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Plaintiff's exhibit A/ Custody Evaluation (December
30 1997)
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65-66
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Plaintiff's exhibit B/ Order - December 22, 1999
(duplicate of 34-35a)
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67-75
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Plaintiff's exhibit C/ Gordon Report (January 21,
2000)
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76-77
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Plaintiff's exhibit D/ Gordon Report (January 23,
1998)
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78
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Plaintiff's exhibit E/ Letter from Division of Youth
and Family Services (March 2, 2000)
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79
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Answering Certification of Defendant (April 21,
2000)
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92-95
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Order: Prevention of
Domestic Violence Act (May 20, 1997)
Defendant's
Certification Exhibit A
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96-102
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Certification of
Defendant (September 18, 1997)
Defendant's
Certification Exhibit B
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103-104
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Order (September 22,
1997) regarding parenting time
Defendant's
Certification Exhibit C
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105-111
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Evaluation Letter 2 /
December 1998 from Dr Steven Glass, MD
Defendant's
Certification Exhibit D
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112-129
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Custody Evaluation
Defendant's
Certification Exhibit E
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130-141
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Amended Final Dual
Judgement of Divorce
Defendant's
Certification Exhibit F
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142
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Hand Written, alleged
discussion with child
Defendant's
Certification Exhibit G
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143
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Hand Written Notes of
defendant
Defendant's
Certification Exhibit H
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144-145
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Hand Written Notes of
defendant
Defendant's
Certification Exhibit I
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146
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Hand Written Notes of
defendant
Defendant's
Certification Exhibit J
|
|
147
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Hand Written Notes of
defendant
Defendant's
Certification Exhibit K
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148-149
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Hand Written Notes of
defendant
Defendant's
Certification Exhibit L
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150-151
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Order / December 22, 1999
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152 159
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Dr. Alan Gordon Evaluation / Exhibit N
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160
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Letter to Theresa M. / Exhibit O
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170-190
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Bell Atlantic Phone Charges (November 14,
1998-January 14, 1999) Exhibit P
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191-196
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Reply Certification / Proof of Service (April 27,
2000)
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197-199
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Order: May 5, 2000: Sua sponte vacating prior
orders and denying plenary hearing, and for other relief
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200
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Letter to court regarding adjournment of motion,
4/5/00
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201
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Letter to court regarding scheduling of motion,
4/10/00
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Index
to Transcripts
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Transcript
Designation
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Description
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1T
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Hearing - Order to Show Cause 12/22/1999
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2T
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Oral argument: Motion, 5/5/2000
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Procedural
History
This is an
appeal from an Order entered in a post-judgement matrimonial action on May 5,
2000.
On December
9, 1999 defendant filed an application for an Order to Show Cause with
temporary restraints (1a, 4a‑8a).
The Court signed the Order to Show Cause the same date (1a-3a).
Plaintiff
filed a response certification on December 14 (18A-25a). Defendant's prior counsel executed a
substitution of attorney on February 9, 2000.
On March 30,
2000, plaintiff filed a motion returnable April 14 (36a-38a). Defendant requested the motion be adjourned,
stating it was not served on her within the time period permitted by the Court
Rules. Defendant requested a 28 return
on the motion. Plaintiff acknowledged
that the motion had been served one day out of time, but requested that the
Court set the motion down for a 16 day return (200a). Family Part motions are heard every Friday in
Mercer County. By letter dated April 10,
2000, the Court adjourned the motion until May 5, 2000 (201a).
On April 21,
2000, defendant filed an "answering certification (79a).
On May 1,
2000, plaintiff filed a reply certification (191a). On May 5, 2000, the trial Court issued the
Order now under appeal (198a-199a).
On May 10,
2000, the Notice of Appeal was filed. On
May 10, an application for emergent relief was denied.
Statement of Facts
On December
9, 1999 defendant filed an application for an Order to Show Cause (1a) alleging
plaintiff Bill M. had sexually abused his six year old daughter, Natasha M. (4a‑8a). The Court responded correctly to the
allegation. The Order to Show Cause was
granted, temporary restraints were entered and the Court scheduled an
evaluation by Dr. Alan Gordon. Dr.
Gordon had previously conducted a custody and parenting time evaluation during
the parties' contentious divorce and had issued both a custody evaluation
(47a-64a) and a supplemental report when plaintiff sought increased parenting
time (76a-77a). He had previously noted
the intense conflict and acrimony between the parties (63a). The December 9, 1999 allegations were also
referred to the Division of Youth and Family Services (hereinafter DYFS) for
investigation.
The Court
stated in its December 9 Order that the "the restraints contained herein
shall continue until the court receives Dr. Gordon's report, at which time the
court shall set the matter down for hearing." (2a at 4).
Plaintiff
filed a response certification on December 14 denying the allegations and
alleging that same were made maliciously with full knowledge they were false
(18a-25a). Plaintiff pointed out that it
defied reason that he would abuse his daughter in this manner considering the
he had been dragged into Court repeatedly on various allegations since the time
of the parties separation and that their daughter was highly verbal and
obviously would talk about abuse. He
also pointed out that defendant had repeatedly made similar allegations, all of
which had all been discredited by the prior judge assigned to the case
(18a-23a).
Defendant
filed a Reply Certification on December 20 (26a-33a) insisting the allegations
were made in good faith. On December 22,
1999, the trial Court entered an Order on the return date of the Order to Show
Cause compelling plaintiff's contact with his daughter to be held in a public
place and to be supervised by his defendant's mother (84a-85a).
The Court
again specifically stated in its December 22 Order that the "the Court
shall scheduled further proceedings in this matter upon receipt of Dr. Gordon's
report."
Dr. Gordon
issued his report on January 21, 2000 (67a-75a). The report indicated that the child displayed
"none" of the psychological symptoms of a child sexual abuse survivor
and that "confirmation of such allegations has to be made through
observation of children's behavior and/or physical evidence. Neither of these is evident in this
situation." (74a). There is no
indication in the report that Dr. Gordon credited the sexual abuse allegations
(67a-75a) and the above statements indicate that he did not find that sexual
abuse had occurred (74a).
In
discussing plaintiff's allegation that "the child was fed the statements
by her mother and grandmother" Dr. Gordon stated "at the present
time, neither can proven or disproved" (74a). The report ends with Dr. Gordon offering to
the trial Court that he would "expand on any of the views presented"
if requested to do so by the Court.
On March 2,
2000, DYFS issued a report exonerating plaintiff by stating "[t ]he
Division conducted its required investigation and determined that the
allegation was unfounded." (78a).
Plaintiff certified that he had met with Norma Solis, the assigned DYFS
worker. When plaintiff asked Ms. Solis
whether "she believed that the allegations had been invented by
defendant," Ms. Solis responded "yes." (42a).
On March 30,
2000, plaintiff filed a motion returnable April 14 requesting, inter alia,
that the plenary hearing be immediately scheduled and that, upon the return
date, various sanctions be imposed upon defendant for knowingly making false
allegations of child sexual abuse (36a-37a).
Plaintiff enclosed a copy of the DYFS letter (78a) and Dr. Gordon's
report (67a-75a) as well as recounting the conversation he had with Ms. Solis
(42a). Further, he explained and
documented that defendant had a long history of making false allegations
against him dating back to at least 1997 (96a-102a). She had in the past succeeded in having his
parenting time temporarily supervised until Dr. Gordon conducted an evaluation
(40a), but each time Dr. Gordon had recommended the lifting of the supervision
requirement (63a). No allegations were
ever credited by a trial Court.
In response
to plaintiff's motion, defendant filed a certification (79a) and enclosed a
different letter from DYFS stating that no further services would be provided
by the Division "because you have demonstrated the ability to cooperate
with recommended services without DYFS intervention" (160a). She did not oppose plaintiff's request that a
plenary hearing be scheduled. In fact,
in reference to Dr. Gordon, defendant stated that he "has not yet
testified to this Court, nor has he been cross-examined." (86a at 25),
and that the plenary hearing "will determine the facts" (86a at 26).
On May 1,
2000, plaintiff filed a reply certification again denying the allegations and
pointing to various inconsistencies in defendant's allegations and her
certification (191a).
On May 5,
2000, the trial Court heard oral argument and issued an Order sua sponte
vacating all its priors Orders that a plenary hearing would be scheduled after
the evaluations were completed. The
Court indicated that it would not consider the DYFS' workers statements as they
constituted inadmissible hearsay, would not open the DYFS files, and would not
open the files of the Prosecutor's Office nor the Ewing Township Police
Department. The Court ordered, relying
solely on Dr. Gordon's ambiguous and hotly disputed report (2T 6-14 to 6-19),
that supervised visitation would continue without any indication of when or if
the supervision would be lifted. The
Court also denied plaintiff's application to change the supervisor to his
parents.
I.THE TRIAL
COURT ERRED BY VACATING ITS PRIOR ORDERS THAT A PLENARY HEARING WOULD FOLLOW
THE COMPLETION OF THE EXPERT REPORT AS TO THE ABUSE ALLEGATIONS MADE AGAINST
PLAINTIFF
The general
rule is that findings of a trial Court are binding on appeal when supported by
adequate, substantial and credible evidence.
Pascale v. Pascale, 113 N.J. 20, 33, (1988) (quoting Gallo
v. Gallo, 66 N.J.Super. 1, 5, (App.Div.1961)), Rova Farms Resort,
Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). It is not the role of the Appellate Division
to re‑weigh the factual determinations of the trial court, which alone
has the opportunity to view the demeanor of and judge the credibility of
witnesses. Cesare v. Cesare, 154 N.J.
394, 416 (1998).
However, a
trial Court may decide issues on a motion and without holding a plenary hearing
only when to do so does not require the resolution of a question of material
fact. See, e.g., Tancredi v.
Tancredi, 101 N.J.Super. 259 (App. Div. 1968), Shaw v. Shaw,
138 N.J.Super. 436 (App.Div.1976).
See also Brill v. The
Guardian Life Ins. Co. of America, 142 N.J. 520 (1995).
The issue of
whether plaintiff abused his daughter and, alternatively, whether defendant
knowingly made false allegations and "fed statements" to the child is
a material fact question warranting a hearing.
P.T., A.T. and H.T. v.M.S., 325 N.J.Super. 193 (App. Div.
1999), Matter of Guardianship of J.C., 129 N.J. 1, 22, (1992), In
re Registrant G.B., 147 N.J. 62, 87 (1996), In re D.C., 146 N.J.
31, 59, (1996). The trial Court's ruling
to the contrary was plain error mandating reversal.
The trial
Court stated that it was basing its decision to vacate the Orders calling for a
plenary hearing based on Dr. Gordon's report.
(2T 17-25 to 18-6).
Expert
reports are hearsay and generally are not admissible. Hill v. Cochran, 175 N.J.Super.
542, 546‑47 (App.Div.1980). For
several reasons, Dr. Gordon's report was inadmissible hearsay that could not be
relied on the justify the trial Court's decision.
Initially,
Dr. Gordon's report did not even purport to resolve the fact question of
whether plaintiff assaulted his daughter (75a).
Expert opinions are not intended to resolve fact questions. N.J.R.E. 702 states that an expert
opinion is designed to "assist the trier of fact to determine a
fact in issue." State v.
Spencer, 319 N.J. Super. 284 (App. Div 1999) citing State
v. Clowney, 299 N.J.Super. 1, 19, (App.Div.), certif. denied,
151 N.J. 77 (1997) (Emphasis added). See also N.J.R.E.
705.
While an exception to this general rule has
been carved out for custody reports in the context of a trial, in every
reported case where an otherwise inadmissible report was admitted, it was done
in the context of a full and fair hearing.
See, e.g. W.W. v. I.M., 231 N.J. Super. 495 (App.
Div. 1989); Callen v. Gill, 7 N.J. 312, 318, (1951) ("[T ]he
rules of evidence are somewhat relaxed in trials having to
do with a determination of custody of an infant where it is necessary to learn
of the child's psychology and preferences." Emphasis added.) There is no support for the trial Court's
decision to rely on Dr. Gordon's report outside of the context of a plenary
hearing.
Moreover,
Dr. Gordon's report cannot possibly be read as having resolved the fact
question presented when its conclusions were that the child "does not show
evidence of" the behaviors associated with a victim of sexual abuse, and
that plaintiff's allegation that the child had these statements "fed to
her by her mother and grandmother could neither be proven nor disproved."
(74a).
Dr. Gordon's
report has several internal inconsistencies that require exploration and
testing in the context of a plenary hearing.
As one example only, he states that plaintiff told him he had
"jumped into a tub with [Natasha ] playfully with a bathing suit on. Nothing happened inappropriately."
(72a) Yet in his conclusions, Dr. Gordon
states that plaintiff "should not take baths in the nude with his
daughter" (74a-75a) - a significant and unexplained departure from
plaintiff's statement. According to Dr. Gordon, plaintiff also
noted that he had recently purchased a three bedroom house (with a separate
bedroom for his daughter) (71a at 9, 72a at 8). Yet in his conclusions, Dr. Gordon stated
that "if [plaintiff ] has a one bedroom apartment, the child could be
sleeping in a bed and Mr. M. could sleep on the couch or on an inflatable
bed." (74a at 4).
These
examples are illustrative only.
Plaintiff was clear that he disputes many of the statements attributed
to him and that he wished to test Dr. Gordon's report in the context of a
plenary hearing (2T 6-14 to 6-17).
During oral
argument, plaintiff's counsel raised the constitutional dimension of the
parent-child relationship and the absolute right of both a parent and child to
a hearing when allegations of this type are made. In apparent disagreement with this assertion,
the trial Court inquired "What -- what section of the constitution are you
citing, Mr. Davis?" (2T 6-20 to 7-2).
It is well
settled law that the parent-child relationship is of constitutional
dimension. It "is perhaps the
oldest of the fundamental liberty interests recognized by [the United States
Supreme ] Court" and both the child
and plaintiff have an absolute due process right to the resolution of these
allegations. See, e.g. Meyer v. Nebraska, 262 U.S.
390, 399, 401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), Pierce v.
Society of Sisters, 268 U.S. 510, 534‑535, 45 S.Ct.
571, 69 L.Ed. 1070 (1925), Prince v. Massachusetts, 321 U.S.
158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), Troxel v. Granville, _____ U.S. _____,
120 S.Ct. 2054 (2000), Watkins v. Nelson, 163 N.J. 235
(2000).
II.THE TRIAL
COURT ERRED BY CONTINUING THE RESTRAINTS ON PLAINTIFF'S PARENTING TIME IN THE
ABSENCE OF ANY FINDING WARRANTING SUCH RESTRICTIONS
When first
presented with the allegations against plaintiff (4a-8a), the trial Court acted
appropriately by taking steps to address what it perceived to be a danger to
the child (34a-35a). However, the Court
stated in its December 9 Order that the "the restraints contained herein
shall continue until the court receives Dr. Gordon's report, at which time the
court shall set the matter down for hearing." (2a at 4). Dr. Gordon's report does not recommend
continuation of supervised visitation (75a).
While this matter should be remanded for a plenary hearing, the
allegations that led to the supervision of plaintiff's contact with his
daughter have been discredited by DYFS (78a) and were not substantiated by the
court-appointed evaluator (67a-75a).
In denying
plaintiff's application to remove the supervision requirement from his
parenting time, the trial Court stated that it relied on Dr. Gordon's
report. However, the report stated that
plaintiff should engage in therapy with the child, it did not say that
plaintiff's visitation should remain supervised (2T 20-4 to 20-12). In denying plaintiff's application to lift
the supervision requirement, the trial Court stated
"[Plaintiff
] currently has a one-bedroom house and they sleep in the same bed." Dr. Gordon based these findings on the
information that the child and the plaintiff husband shared with him. By plaintiff husband's own admission, he has
a one-bedroom home and he and the child shared a bed during her overnight
visitation. The Court finds this
arrangement unacceptable. While the
Court does not make a finding of inappropriate conduct by plaintiff toward the
child, nonetheless, the potential for such occurrences exist based on that
sleeping arrangement. (2T 20-1 to 20-4).
It was never
disputed that plaintiff now lives in a three bedroom house (44a). The housing arrangement which existed at the
time of plaintiff's interview with Dr. Gordon no longer existed as of the
return date of plaintiff's motion.
In the
absence of a finding of "inappropriate conduct," and with the sole
justification for the continuing restraints removed, this Court should order
that the restrictions be immediately lifted.
While restrictions on the parent-child relationship can be ordered to
protect a child's best interests, such restraints must be backed by evidence in
order to justify the infringement of the fundamental constitutional right of
both the child and parent to a loving and meaningful relationship with each
other. Cf., e.g. Meyer v. Nebraska, 262 U.S.
390, 399, 401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), Pierce v.
Society of Sisters, 268 U.S. 510, 534‑535, 45 S.Ct.
571, 69 L.Ed. 1070 (1925), Prince v. Massachusetts, 321 U.S.
158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), Troxel v. Granville,
___ U.S. ___, 120 S.Ct. 2054 (2000), Watkins v. Nelson,
163 N.J. 235 (2000).
In the
alternative, the restraints should be modified to take the DYFS findings and
Dr. Gordon's recommendations into account and plaintiff's application to lessen
the restrictions by changing the supervisor to his parents (194a at 13) should
have been granted.
III.THIS COURT
SHOULD REVERSE THE REMAINDER OF THE TRIAL COURT'S MAY 5, 2000 ORDER
Several
other issues were addressed when the Court denied plaintiff's application to
set a date for the plenary hearing. All
of these rulings were related to the Court's denial of plaintiff's motion and
should be reviewed on remand.
Under the
December 22 Order, defendant's parents were appointed as supervisors for
parenting time between plaintiff and Natasha (84a-85a). Plaintiff requested that, in the event
supervision was to continue pending the hearing, the supervisor should be
changed to either plaintiff's parents or a neutral party (2T 14-24 to 15-10). Although the Court noted
that there has been ongoing acrimony between plaintiff and his former in-laws
(2T 20-16 to 20-22), the request to change the supervisor to a neutral party
was denied (2T 20-22 to 21-5).
The purpose
of imposing supervision on plaintiff's parenting is to protect the child (2T
20-15). To require that plaintiff's
parenting time be supervised by a party with whom there exists tremendous
acrimony does not further this interest.
The trial Court abused its discretion by failing to order that a neutral
third party could act as a supervisor pending a hearing.
Plaintiff's
request that the Court impose sanctions at the hearing was denied as the Court sua
sponte vacated its orders that a hearing would be held (2T 21-14 to
21-23). At a hearing, should plaintiff
persuade the Court by substantial and credible evidence that the allegations
were not only baseless but part of a pattern of knowingly false and malicious
allegations, sanctions would be appropriate.
Ridley v. Dennison, 298 N.J. Super. 373, 381 (App. Div.
1997).
In order to
properly prepare for a hearing, plaintiff should have access to the records of
DYFS, the Ewing Township Police, and the Mercer County Prosecutor's
office. The Court denied this request
specifically as part of its decision that "there will be no hearing."
(2T 22-6 to 22-10). On remand for a
hearing, this information should be made available to plaintiff. While the records of the police and
prosecutor should be available by subpoena, the records of DYFS require a
finding that "good cause" be shown for their release.
DYFS
interviewed the child extensively and presumably kept records of these
interviews. Two letters were issued with
apparently contradictory conclusions.
These records can be released whenever "good cause" justifies
their release. N.J.S.A. 9:6‑8.10a
(b)(6). Under the circumstances of this case, it is respectfully suggested that
these records should be made available to the parties.
IV.ON REMAND,
THIS MATTER SHOULD BE HEARD BY A DIFFERENT JUDGE
While not
strictly a matter of disqualification, the appellate court has the authority to
direct that a different judge consider the matter in order to preserve the
appearance of a fair and unprejudiced hearing. See, e.g., Carmichael
v. Bryan, 310 N.J. Super. 34, 49, (App. Div. 1998). Although not as a result of a full and fair
hearing, Judge Pogarsky, in reversing his own prior orders that the required
plenary hearing be held, made findings that indicate that a "fresh
judicial examination" is warranted.
See R. 1:12‑1(f).
In In re
Baby M., 109 N.J. 396, 463, (1988), reversing 217 N.J.Super.
313, (Ch. Div. 1987), the Supreme Court cited the trial judge's "potential
'commitment to its findings'" to support a determination that a different
should hear a matter on remand. The
Appellate Division also has remanded cases to be heard by a different judge on
several occasions. See, e.g., P.T., A.T. and H.T. v.M.S., 325 N.J.Super.
193, 222 (App. Div. 1999); New Jersey
Division of Youth and Family Services. v. A.W., 103 N.J. 591, 617,
(1986); J.L. v. J.F., 317 N.J.Super.
418, 438, (App. Div. 1999); Carmichael v. Bryan, 310 N.J.Super.
34, 49 (App.Div.1998).
Conclusion
For the foregoing reasons, the trial court's
May 5, 2000 Order should be reversed and the matter remanded for a
hearing. In the alternative to summary
reversal, this Court should reverse the trial Court and order that the matter
be resolved on an expedited schedule pursuant to the instruction of the New
Jersey Supreme Court in Watkins v. Nelson, 163 N.J. 235 (2000).
The matter
should be assigned to a new judge on remand.
Respectfully submitted,
David Perry Davis, Esq.
