Opinion
DOCKET NO. A-1644-12T3
04-22-2014
LIDIA GERTSEVA, Plaintiff-Appellant, v. JAMES R. STAMPER, Defendant-Respondent.
Lidia Gertseva, appellant pro se. James R. Stamper, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and Nugent.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-0879-07.
Lidia Gertseva, appellant pro se.
James R. Stamper, respondent pro se. PER CURIAM
Plaintiff Lidia Gertseva appeals the portion of the Family Part's October 26, 2012 order that prohibits either party from removing their daughter from the United States without the consent of the other party or a court order allowing such removal. We affirm.
We deny Gertseva's motion to supplement the record and grant her motion to suppress certain documents in Stamper's appendix because both sets of documents were not before the motion judge. We have not considered them in deciding this appeal.
The parties were divorced in 2008. They have one daughter, who is now eight years old. In an order dated March 17, 2008, the Family Part granted Gertseva's motion seeking permission to relocate to Russia with the parties' daughter. The order further provided that Gertseva and defendant James R. Stamper would have joint legal custody, that New Jersey would retain sole jurisdiction over the child, and that Gertseva would abide by the parenting schedule established in the order.
Although Gertseva did relocate to Russia for approximately a year and a half, she and the daughter subsequently returned to the United States and now reside in Virginia. In September 2012, Gertseva filed a motion seeking to modify the parenting schedule and to designate her the custodian of the child's passport. After hearing oral argument and putting an oral decision on the record, the judge entered the October 26 order, which adjusted the parenting schedule to allow Gertseva to take the child to Russia over the Christmas holiday. The order also provides that the daughter's passport "shall be provided upon request for travel when necessary to the parent travelling" with the child.
After the appeal was filed, the motion judge issued a written amplification of his oral decision, as permitted by R. 2:5-1(b).
The motion judge added the following provision sua sponte: "[N]either the Plaintiff nor the Defendant shall remove the child from the Unites States . . . except with the written consent of the other parent or by Order of the Court . . . ." This appeal followed.
In the supplemental letter opinion, the judge noted that neither party objected during oral argument when he said he would include the provision at issue in his order, but that Gertseva objected after she received the order outside of the courtroom. By that time, Stamper had departed. Gertseva did not move for reconsideration as the judge suggested to her at that time.
On appeal, Gertseva contends that the motion judge exceeded his authority in entering the removal provision. She also contends that compliance is impossible. Stamper argues that the judge did not exceed his authority and that the order should be affirmed.
"More than financial contests, custody and parenting time disputes trigger the need for a family judge, acting as parens patriae, to prevent harm and protect the best interests of children." Parish v. Parish, 412 N.J. Super. 39, 52-53 (App. Div. 2010) (citing Fawzy v. Fawzy, 199 N.J. 456, 474-75 (2009)). We ordinarily accord great deference to the discretionary decisions of Family Part judges. Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. (2012)); Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (quoting Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). We will not, however, defer to the exercise of discretion that lacks a rational explanation, departs inexplicably from established policies, or rests on an impermissible basis. Milne, supra, 428 N . J . Super . at 197 (quoting Flagg v . Essex Cnty ., Prosecutor, 171 N . J . 561, 571 (2002)).
We are satisfied from our review of the record before the motion judge that he did not exceed or abuse his parens patriae authority to act in the best interests of the child. The parties' statements during oral argument, at which they were both put under oath, reflect that there were recurrent disputes between them about their daughter's travel schedule and absence from school. The judge's order reflects his concern in that regard, in that he narrowed the time the daughter would be out of the country and specified when she would return to school. Because Gertseva has apparently returned to this country for an extended period of time and no longer resides in Russia, we find no abuse of the judge's discretion in requiring the parties to revisit the issue of relocation to Russia, either by consent or application to the court, in the event Gertseva wishes to relocate to Russia at some time in the future. If the parties are unable to agree, the Family Part will be able to make a decision on the basis of the facts then existing, rather than those that formed the basis for the original removal order six years ago.
We note that the order precludes removal of the child from the United States, not from the State of New Jersey, as Gertseva argues in her brief.
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Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION