The Rules of Court clearly allow a Family Part Judge to appoint their own expert on any issues, whether custody or economic issues, in order to aid the court in making a decision on an issue before the Court. The Court rule requires that when the report is completed, it is to be submitted to the parties and the court at the same time. At that time, if they parties have their own reports, they can also submit them to the court. After submission of the court appointed expert’s reports, the rule provides that “The parties shall thereafter be permitted a reasonable opportunity to conduct discovery in regard thereto, including, but not limited to, the right to take the deposition of the expert.”
The rule does not stop there. Even more importantly, the rule provides:
“Use of Evidence. An expert appointed by the court shall be subject to the same examination as a privately retained expert and the court shall not entertain any presumption in favor of the appointed expert’s findings. Any finding or report by an expert appointed by the court may be entered into evidence upon the court’s own motion or the motion of any party in a manner consistent with the rules of evidence, subject to cross-examination by the parties.
The rule goes on to provide that nothing in the rule shall be construed to preclude the parties from getting their own experts, either before or after the appointment of an expert by the Court.
So the Rule makes it pretty clear that judges can’t just obtain reports from their own expert and issue a ruling, except perhaps if the parties agree that that can be done. I previously blogged on a case where the parties had competing real estate appraisals so the court appointed their own appraisal and without a hearing, adopted that court appointed appraiser’s conclusion of value. Of course, the Appellate Division reversed and required a plenary hearing to address the valuation issue.
Despite the clarity of the Rule, that issue arose again in the case of Karasaridis v. Constantarakos, an unreported (non-precedential) Appellate Division matter decided on August 29, 2024.
In that case, there was a dispute regarding the nature of plaintiff’s pension and how it should be divided. After post-judgment motion practice regarding the issue, the Court appointed an expert to “… advise the court whether: plaintiff’s plan is a defined benefit plan, a cash balance pension, or a hybrid of the two; plaintiff’s pension should be divided via a shared or separate interest; MSA
paragraphs 6.3 (D) and (E) guide the parties intentions as to how to divide plaintiff’s plan; and the benefits and detriments to each party if the plan is divided as a separate interest versus a shared interest.” So far so good.
But then things go off the rails when the same Order provided that court would then issue a decision on the pending motions when the report was received. Once the report was received and it favored one party’s position, that party wrote to the court asking that the pension be divided in accordance with the expert opinion. The other party disputed the expert’s opinion and asked for the relief consistent with his existing position. He did not, however, ask the court to cross-examine the court’s expert or disclose that he intended to retain an expert.
Several weeks later, the court, without having a hearing, entered an Order consistent with it’s expert’s opinion adopting the expert’s report “in it’s entirety.” The offended party filed a motion for reconsideration attaching his own expert report. The trail court declined to consider that party’s expert and denied the motion for reconsideration. The appeal followed.
The Appellate Division reversed the trial court decision, agreed that it was error for the trial court to adopt it’s own expert’s opinion without giving the opportunity to conduct discovery, submit his own expert report and allow cross examination of the Court’s expert. The Appellate division noted that:
“The language of Rule 5:3-3(f) and (g) is clear. Pursuant to subsection (f), the court shall permit the parties a reasonable opportunity to conduct discovery as to the court’s expert, including opportunity to take the expert’s deposition. Subsection (g) provides the admission of the court-appointed expert’s opinion into evidence is expressly subject to “cross-examination by the parties.”
While plaintiff failed to take affirmative steps to assert his right to discovery or cross-examination pursuant to Rule 5:3-3, the court erred by not taking affirmative steps to implement the specific requirements of the rule.
While the victory may only be a pyrrhic victory since the Appellate Division did not comment on the merits, there will have to be discovery and a hearing, including cross examination, to hash out which expert is correct.
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