In a Decision – H.M. v. M.E.,, (an "Unreported Decision") >> the Court Held:
The Appellate Division reversed and remanded the case after concluding that the trial judge should not have applied the five-day rule to enter the order, which did not memorialize a prior ruling by the court concerning custody.
The court further found that an informed judicial assessment of the child's best interest warranted a plenary hearing. The court concluded that although maintaining custody as set forth in the MSA could have been the trial judge's ultimate decision, it was presumptive to do so by entry of an order via the five-day rule [Rule 4:42-1(c)]. The court reasoned that the trial 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 circumstances was shown. 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.