Opinion
DOCKET NO. A-5545-14T4 DOCKET NO. A-5546-14T4
04-07-2016
KRISHNA RAMINENI, Plaintiff-Respondent, v. KANCHAN RAMINENI, n/k/a KANCHAN DESHMANYA, Defendant-Appellant.
Karen Kirchoff Saminski, Esq., L.L.C., attorneys for appellant (Stephanie O'Neill, on the brief). Norris McLaughlin & Marcus, P.A., attorneys for respondent (Megha R. Thakkar, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Koblitz and Gilson. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1762-14. Karen Kirchoff Saminski, Esq., L.L.C., attorneys for appellant (Stephanie O'Neill, on the brief). Norris McLaughlin & Marcus, P.A., attorneys for respondent (Megha R. Thakkar, on the brief). PER CURIAM
Defendant Kanchan Ramineni appeals from a dual judgment of divorce (JOD) entered on June 30, 2015 after trial, challenging the provisions concerning the parties' shared custody, the denial of alimony and the allegedly insufficient award of counsel fees; as well as a post-judgment order issued on August 3, 2015 denying her motion to relocate with their then four-year-old son to North Carolina. We affirm, writing one opinion to resolve both appeals.
Defendant and plaintiff Krishna Ramineni were married in India in 2009 and had a son in 2011. In early 2010, plaintiff moved to the United States. Thereafter, defendant joined plaintiff in South Plainfield for about six months until defendant, then pregnant, returned to India in January 2011. Plaintiff visited defendant and the child in India a few times. Defendant relocated permanently to the United States in June 2013. Less than six months later, after the parties had been married for four years, plaintiff filed a complaint for divorce.
Defendant moved to Connecticut with the child in April 2014. Plaintiff arranged to move to Connecticut to be close to his son, but before he moved, defendant relocated to West Windsor, approximately five months after she had moved to Connecticut. Plaintiff then relocated to West Windsor, a five to seven minute car ride away from defendant and their son. Following defendant's relocation to New Jersey, in October 2014, the court established a fifty/fifty parenting schedule, mandating that each parent "have the child on alternating weeks, from Sunday, 5:00 pm until Sunday 5:00 pm." The court also ordered that "[t]he parent not having the child that week shall have parenting time on Tuesday & Thursday, 4 pm to 7 pm."
Although not raised by either party, Rule 5:8-1 requires a trial court to refer a case to mediation "[i]n family actions in which the court finds that either the custody of children or parenting time issues, or both, are a genuine and substantial issue." We have no information as to whether or not these parties were referred to mediation prior to trial. Because this issue "was not raised on appeal," Morgan v. Raymours Furniture Co., 443 N.J. Super. 338, 340 n.1 (App. Div. 2016), and in this posture the mediation process could not be expected "to reach a timely acceptable outcome," D.A. v. R.C., 438 N.J. Super. 431, 452 (App. Div. 2014), we decline to address the issue.
At the time of trial in March 2015, plaintiff held a master's degree in both mechanical engineering and business administration and was working as a consultant, earning approximately $185,000 annually. Defendant held a bachelor's degree in engineering and was employed as an assistant manager with a technology company, earning approximately $66,500 annually.
Both were represented by counsel and both parties testified. Dr. Robert Rosenbaum, the parties' joint expert, also testified. He recommended joint legal custody and opined that it was unnecessary to designate a parent of primary residence unless one of the parties moved out of their school district. In that circumstance, Dr. Rosenbaum recommended that "for educational purposes only," in order for the child to remain in the school system, the parent remaining in their son's school district should be designated as the primary custodian. He also testified that the parties had the "capacity to work together" and co-parent their son.
In the midst of trial, defendant received an employment opportunity from an Indian company requiring defendant to relocate to Charlotte, North Carolina. Defendant filed a motion to relocate with the child to North Carolina, and to be designated as the parent of primary residence. In response, plaintiff filed a cross-motion seeking to be designated the parent of primary residence, or alternatively, seeking a plenary hearing on relocation. On June 8, 2015, the court entered an order denying both parties' requests to be designated the parent of primary residence, and reserving defendant's relocation motion pending a plenary hearing to be held after the divorce trial.
This company did not have a physical office in North Carolina, but required that defendant work from customers' offices.
On June 30, 2015, the court entered a dual JOD accompanied by an extensive written decision. The court found that an alimony award was unwarranted given the short duration of the marriage, during which they lived together for only two brief periods of time; and defendant's ability to secure employment and meet her own needs as delineated in her case information statement, after adjustment by the court.
With respect to child custody, the parties agreed to joint legal custody of the child. After considering Dr. Rosenbaum's testimony and report, the parties' willingness to accept joint custody, their relationship with the child, and the stability of the home environment, especially considering plaintiff's relocation to establish a shared parenting arrangement, the court declined to designate either party as the parent of primary residence.
Lastly, the court awarded defendant $20,000 in legal fees, finding that "[t]his was a contentious and very expensive trial for individuals with little to no assets, where the most litigated issue was custody." The court noted that the counsel fee award was in part a result of plaintiff's "greater ability to pay." Plaintiff's earnings were approximately three times greater than defendant's and both parties had similar living expenses. The court wrote:
Although both parties withheld discovery on the money sent to India or contained in Indian bank accounts, Plaintiff's nondisclosure was far more egregious as the accounts existed here and the money was sent during the parties' marriage. Defendant's accounts were essentially non active. Additionally, the Court finds that Defendant had recently immigrated to this country with no family or friends when she was served
with a divorce Complaint six months later. Plaintiff never told her about the Complaint being filed, yet continued to share a bed with her.Defendant had incurred approximately $161,000 in legal fees, while plaintiff incurred approximately $105,000. Plaintiff had paid $10,000 toward defendant's counsel fees prior to trial.
One month later, the court held a plenary hearing on defendant's removal motion. Before hearing testimony, the court addressed defendant's burden of proof, noting the parties' shared custody arrangement dictated an application of the best interest standard under O'Connor v. O'Connor, 349 N.J. Super. 381, 385 (App. Div. 2002). At the conclusion of defendant's direct testimony, plaintiff's counsel moved for a directed verdict, contending that defendant had not made a prima facie showing that the boy's interests would be better served by the change in custody necessitated by relocation. The court considered the testimony and evidence proffered in the lengthy divorce trial and heard from both counsel before placing its decision on the record. The court then determined that permitting defendant to relocate for work to North Carolina with the child would not be in the child's best interests and, accordingly, denied defendant's motion without prejudice. The court found that "it's not in [the child]'s best interest to take him away from the 50/50 time that he has with his father." An order memorializing the court's oral decision was entered on August 3, 2015.
I
An appellate court's scope of review of the Family Part's factfinding function is limited. See N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 476 (App. Div. 2012). The Family Part's factual findings "are binding on appeal when supported by adequate, substantial, credible evidence." O'Connor, supra, 349 N.J. Super. at 400-01. This traditional standard of review is expanded when the court committed an alleged error in evaluating the underlying facts. MacKinnon v. MacKinnon, 191 N.J. 240, 254, stay denied, 551 U.S. 1177, 128 S. Ct. 7, 168 L. Ed. 2d 784 (2007). Nevertheless, a reviewing court should accord deference to the Family Part's "findings unless they went so wide of the mark that a mistake must have been made." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)). Such an approach is consistent with our general recognition that "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding," and the conclusions that flow logically from those findings of fact. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998).
II
Defendant argues that the court abused its discretion by failing to award four years of alimony. The court reviewed the statutory factors enumerated in N.J.S.A. 2A:34-23(b). The first factor to consider when considering an award of alimony is the actual need of the party seeking alimony. See N.J.S.A. 2A:34-23(b)(1); Reese v. Weis, 430 N.J. Super. 552, 569 (App. Div. 2013) ("It has long been held that alimony is awarded because of an 'actual economic dependency' and not because of one's status as a spouse." (quoting Lepis v. Lepis, 83 N.J. 139, 155 (1980))). The court found that in the short period of time that the parties lived together, they lived a frugal lifestyle, which defendant was able to maintain without the award of alimony. The court did not abuse its discretion because adequate, substantial, credible evidence support this decision. See Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340, 354 (App. Div. 2009) (stating an appellate court uses an abuse of discretion standard in reviewing the propriety of an alimony award).
Defendant also argues she was awarded insufficient counsel fees. Rule 5:3-5(c) sets forth factors for the Family Part to consider when reviewing an application for counsel fees. "The application of these factors and the ultimate decision to award counsel fees rests within the sound discretion of the trial judge." Loro v. Colliano, 354 N.J. Super. 212, 227 (App. Div.), certif. denied, 174 N.J. 544 (2002). The court considered the appropriate factors and rendered a decision within its discretion, relying on substantial credible evidence. Because the court did not abuse its discretion, we affirm.
III
The court recognized that the issue that drove up the counsel fees beyond any financial justification was the parties' dispute over custody, primarily the relocation of the child. Indeed, a parent's ability to have a strong relationship with his or her child is of immeasurable value, to both the parent and the child. Here, the court found, after considering the prior trial testimony and defendant's testimony at the plenary hearing, that defendant was unable to substantiate a prima facie case for relocation. Thus, the court granted plaintiff's motion to deny defendant's removal motion without the necessity of hearing further testimony.
An application for removal requires an initial inquiry into "the type of parenting arrangement between the parties and whether the matter is actually an application for a change in custody as opposed to a removal case." Morgan v. Morgan, 205 N.J. 50, 64 (2011). If the physical custody arrangement "is one in which one parent is the 'primary caretaker' and the other parent is the 'secondary caretaker,'" then the removal application is governed by the Baures criteria. O'Connor, supra, 349 N.J. Super. at 398-99. If, however, the parents "truly share both legal and physical custody," the court analyzes the request "as an application for a change in custody." Id. at 385. Under this standard, "the party seeking the change in the joint custodial relationship must demonstrate that the best interests of the child would be better served by residential custody being primarily vested with the relocating parent." Ibid.
Baures v. Lewis, 167 N.J. 91, 116-17 (2001). --------
At the outset of its decision, the court initially addressed the question concerning the nature of the parenting arrangement and the appropriate analysis to employ. The court noted that the parties had joint legal custody and a shared parenting arrangement and, thus, required an application of the O'Connor standard. See ibid. The court observed that a change in circumstances existed given defendant's new employment opportunity in North Carolina, which was not the case when the court made its initial custody determination one month earlier.
In the earlier divorce decision, the court had not found defendant credible with regard to her stated reasons for the move, finding her job instability not to be in the child's best interest. The court found, after defendant testified in favor of relocation, that her evidence, "about the schools and the opportunities, and any contacts with family" in North Carolina, did not prove that a shared parenting arrangement was not in the child's best interest. The court noted that the schools in New Jersey were comparable to those in North Carolina and defendant had no family in North Carolina. Moreover, the court also noted that defendant's new employer did not have an office in North Carolina and that defendant was unable to provide specific information as to her work schedule. Defendant had moved often to accommodate employment, and plaintiff had shown a willingness to relocate to be near his son. It was unreasonable to allow defendant to relocate with their young child once again, so soon after plaintiff had uprooted himself to accommodate her then-new employment in West Windsor.
The court determined that defendant was unable to demonstrate that her son's best interests would be better served by relocation away from his father with defendant as his primary residential custodian. The court's well-reasoned decisions were based on its credibility determination after an opportunity to view the witnesses.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION