NOT FOR PUBLICATION WITHOUT THE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-3583-17T3
GERARD PFEIFFER,
Plaintiff-Respondent,
v.
KARI LASPISA, f/k/a
KARI PFEIFFER,
Defendant-Appellant.
_________________________
Submitted March 11, 2019 – Decided March 25, 2019
Before Judges Fasciale and Gooden Brown.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hunterdon County,
Docket No. FM-10-0158-16.
Norris, McLaughlin & Marcus, PA, attorneys for
appellant (Jeralyn L. Lawrence and Kristyl M. Berckes,
on the brief).
Respondent has not filed a brief.
PER CURIAM
In this post-judgment matrimonial dispute, Kari Laspisa (defendant)
appeals from Paragraph One of a January 26, 2018 Order (which awarded
plaintiff parenting time every other weekend), and Paragraphs One, Four, Five,
and Six of a March 23, 2018 Order (generally awarding plaintiff counsel fees).
Plaintiff has not participated in this appeal.
Defendant makes five points on appeal:
POINT I
THE [JUDGE] ERRED AS A MATTER OF LAW IN
MODIFYING THE PARTIES' CUSTODY AND
PARENTING[-]TIME SCHEDULE SET FORTH IN
THEIR MARITAL SETTLEMENT AGREEMENT
[(MSA)] ABSENT A SUBSTANTIAL CHANGE IN
CIRCUMSTANCE.
POINT II
THE [JUDGE] ERRED AS A MATTER OF LAW IN
MODIFYING THE PARTIES' CUSTODY AND
PARENTING[-]TIME SCHEDULE SET FORTH IN
THEIR [MSA] ABSENT AN APPLICATION OF THE
FACTORS SET FORTH IN N.J.S.A. 9:2-4 TO
DETERMINE WHETHER THE MODIFICATION
WAS IN THE CHILDREN'S BEST INTERESTS.
POINT III
ALTERNATIVELY, THE [JUDGE] ERRED AS A
MATTER OF LAW IN FAILING TO HOLD A
PLENARY HEARING TO DETERMINE IF
AWARDING PLAINTIFF AN ADDITIONAL 104
MIDWEEK PARENTING TIME OVERNIGHTS WAS
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IN THE BEST INTERESTS OF THE CHILDREN
PURSUANT TO N.J.S.A. 9:2-4.
POINT IV
ALTERNATIVELY, THE [JUDGE] ERRED AS A
MATTER OF LAW IN FAILING TO AFFORD
DEFENDANT DUE PROCESS BY SUA SPONTE
AWARDING PLAINTIFF AN ADDITIONAL 104
MIDWEEK PARENTING TIME OVERNIGHTS
THEREBY ESTABLISHING A PARENTING[-]TIME
SCHEDULE THAT NEITHER PARTY REQUESTED
OR TO WHICH DEFENDANT WAS AFFORDED
THE OPPORTUNITY TO RESPOND.
POINT V
THE [JUDGE] ABUSED [HER] DISCRETION IN
REQUIRING DEFENDANT TO CONTRIBUTE [TO]
PLAINTIFF'S COUNSEL FEES.
Due to emergent-motion activity in November 2018, we reverse the January 26,
2018 order, remand for proceedings consistent with this opinion, and dismiss
the appeal without prejudice. We also reverse the March 23, 2018 order
awarding plaintiff $500 in counsel fees subject to reconsideration by the judge
on remand.
The parties were married in 2004 and had two daughters. In 2015, the
court entered a final judgment of divorce (FJOD), which incorporated the
parties' MSA. The MSA established joint legal custody and designated
defendant as the parent of primary residence. In December 2017, plaintiff filed
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a motion to modify the parenting-time schedule. That motion led to the orders
under review.
In November 2018, we granted defendant permission to file an emergent
motion seeking to suspend plaintiff's parenting time, which plaintiff did not
oppose. As part of her motion, defendant requested that we suspend the orders
under review – which would have allowed plaintiff parenting time – until the
Division of Child Protection and Permanency (the Division) investigated a
referral as to plaintiff's alleged drug and alcohol problem and lack of housing.
Plaintiff had responded to the emergent motion by stating that he had checked
himself into "another medical facility for further treatment." On November 16,
2018, we granted defendant's motion and stayed plaintiff's parenting time until
further order from this court.
In addition to staying the orders under review, we temporarily remanded
the matter to allow defendant the opportunity to pursue other relief that she had
requested as part of her emergent motion (such as, the completion of a Divison
investigation, evaluations, review of plaintiff's medical records, etc.). We stated
in our November 16, 2018 order that on remand, the judge should address
parenting time and custody issues. We gave the parties permission to seek leave
to supplement the record after the remand proceedings concluded. Defendant
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complied with our emergent order and filed an application with the judge, who
scheduled a remand hearing for March 8, 2019.
As to the merits of defendant's appeal from the January 26, 2018 order,
we conclude that the judge should have conducted a plenary hearing, and that
there otherwise was insufficient evidence to warrant modification of the
parenting-time schedule contained in the MSA. Moreover, as part of the order
modifying parenting time, the judge did not undertake a sufficient analysis under
N.J.S.A. 9:2-4. Had there not been an emergent application, we would have
reversed and remanded for a hearing. Nevertheless, due to the events leading to
defendant's emergent motion, we stayed plaintiff's parenting time, which
necessarily gave defendant full parenting time with the children until the judge
considered anew the modified custody arrangements in light of defendant's
unopposed allegations that plaintiff suffers from substance abuse problems,
which led to an overdose, and related housing issues.
We therefore direct the judge to complete the remand proceedings,
including a plenary hearing to resolve any remaining parenting time and custody
issues, and to reconsider the award of counsel fees to plaintiff. The parties are
free to take any appropriate appeal from orders entered on remand.
Reversed and remanded. We do not retain jurisdiction.
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