Opinion
DOCKET NO. A-1424-11T2
11-30-2012
ALEXANDRA J. MORENO, Plaintiff-Respondent, v. ADANAN JAVAN, Defendant-Appellant.
David M. Wildstein argued the cause for appellant (Wilentz, Goldman & Spitzer, P.A., attorneys; Mr. Wildstein, of counsel and on the brief; Cheryl E. Connors, on the brief). Alexandra J. Moreno, respondent, argued the cause pro se.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Lihotz and Kennedy.PER CURIAM
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1070-10-H.
David M. Wildstein argued the cause for appellant (Wilentz, Goldman & Spitzer, P.A., attorneys; Mr. Wildstein, of counsel and on the brief; Cheryl E. Connors, on the brief).
Alexandra J. Moreno, respondent, argued the cause pro se.
Plaintiff Alexandra Jessica Moreno and defendant Adanan Javan were married on November 13, 2003. In January 2008, their son was born. For most of the marriage, the family resided in Piscataway. Following marital difficulties that need not be explained in detail, on November 23, 2009, plaintiff filed a complaint for divorce, moved out of the home with her son in December and into her mother's home in Queens, New York.
Discovery ensued as the parties attempted to negotiate the issues of custody, support and alimony. On April 30, 2010, the Family Court issued a pendente lite order denying defendant's request for primary custody and granting plaintiff "temporary residential custody." The same order granted defendant unsupervised visitation as well as nightly phone calls. In November 2010, the court denied defendant's request to be designated the parent of primary residence. The order also addressed interim visitation and discovery requests made by both parties.
The record contains extensive pre-trial discovery and correspondence. After several days of negotiations immediately preceding the start of trial, on March 2, 2011, a final judgment of divorce (JOD) was entered that incorporated the parties' Matrimonial Settlement Agreement (MSA). Under the terms of the MSA, the parties agreed to share joint legal custody of their son. Paragraph 2 of the MSA provided:
The Husband and the Wife shall consult and agree with each other with respect to all major decisions concerning the child, including but not limited to the health (except in medical emergencies when consultation and agreement will be made immediately), education, religion, welfare and other matters of similar importance
affecting the child, whose well-being, education and development shall at all times be the paramount concern of the Husband and the Wife. The parties shall have equal decision-making rights. Neither party shall have superior rights as to major decision-making concerning the child notwithstanding the parenting plan set forth herein.
The MSA also set forth the parenting time schedule: each parent would alternate weekends, Thursday 6:00 p.m. to Monday 10:00 a.m.; the child would stay with plaintiff every week from Monday 10:00 a.m. to Wednesday 6:00 p.m., and with defendant every week from Wednesday 6:00 p.m. to Thursday 10:00 a.m., on the weeks when he did not have alternate weekend parenting time. In sum, the child spent six of every fourteen overnights with defendant, and eight with plaintiff. Each party was to wake the child, prepare him for his activities, feed him and perform the other parental responsibilities. The parties further agreed to "make every reasonable effort to reach consent on all of these matters . . . ."
Under the MSA, defendant retained the marital home in Piscataway and continued to reside there. In paragraph 5 of the MSA, the parties "acknowledge[d] that inherent in their agreement to the parenting time schedule . . . is the understanding that [they] must live in close proximity to one another." Plaintiff further agreed to "return with the child to reside in New Jersey within sixty . . . days of" defendant's payment of equitable distribution set forth elsewhere in the MSA. At the hearing on March 2, the parties could not agree on where plaintiff would re-locate in New Jersey. Defendant apparently sought to have plaintiff be bound "by a geographic location," but plaintiff refused. The attorneys and the judge acknowledged "that will be left ultimately for the court [to] address." The final JOD, however, did not address the issue any further.
Our citations in this regard are to an unofficial transcript of the proceedings contained in defendant's appendix. However, there is apparently no dispute as to its accuracy.
Defendant made his payment of equitable distribution on March 9, 2011, and thereafter, via emails, requested plaintiff to notify him of her relocation decision. On April 20, plaintiff's counsel informed defense counsel that plaintiff had submitted an application for approval for an apartment in Flanders, New Jersey, a community in Morris County approximately thirty miles from Piscataway. Defendant was dismayed, and attempts to resolve the dispute led to threats of motion practice, demands for a statement by plaintiff of her reasons for selecting Flanders and requests that the judge hear oral argument on the issue. The judge denied the requests, noting that there was no basis to "impose a certain radius within which the Plaintiff must live," and further noting that she found "no basis at this time to find that either party will attempt to undermine the intent of their agreement."
In May, defendant entered into a lease for an apartment in Flanders but refused to provide her specific address to plaintiff. She requested, through her attorney, that any mail from defendant be forwarded to her mother's address in Queens. She provided only the address of the management office of the apartment complex for purposes of picking up and dropping off her son to effect the parenting time scheduled.
On July 26, defendant filed a post-judgment motion seeking to: (1) compel plaintiff to reside within a five-mile radius of Piscataway; (2) enforce litigant's rights because plaintiff had selected a pediatrician without consulting him in violation of Paragraph 2 of the MSA; (3) direct that the child's pediatrician remain Dr. Naveen Mehrotra in Piscataway; and (4) direct that the child attend Children's Corner Preschool in Piscataway.
Plaintiff filed opposition and a cross-motion seeking to designate: (1) West Morris Pediatrics as the child's primary provider; (2) Healthfirst NJ as his primary health insurer; (3) plaintiff's county of residence as the location of his preschool through 12th grade education; and (4) to modify custody arrangements and parenting time.
Defendant filed a reply and plaintiff filed a sur-reply, in violation of Rule 1:6-3. It appears that the motion judge did not consider the sur-reply in deciding the issues, and, for purposes of this appeal, we refuse to consider its contents.
On October 6, the judge entered an order addressing the various requests for relief made by both parties. She denied without prejudice defendant's request that plaintiff reside within five miles of his Piscataway residence or, in the alternative, modification of the custody and parenting schedule, citing defendant's failure "to demonstrate a substantial change in circumstances warranting a modification . . . ." The judge ordered plaintiff to provide defendant with her specific address and telephone number.
Granting in part and denying in part defendant's request to hold plaintiff in violation of litigant's rights regarding selection of the child's pediatrician, the judge found that the MSA "insinuat[ed] that the child's primary care physician had not been decided upon[,]" and ordered plaintiff to "immediately contact defendant and bring him up to date with respect to any information regarding the child's health." The judge cautioned plaintiff to comply with paragraph 2 of the MSA, and ordered both parties to "utilize the services of the parenting coordinator" she appointed. The judge denied without prejudice defendant's request to name the doctor suggested in his motion, and denied without prejudice defendant's request that the child attend the pre-school he selected. The judge denied defendant's request for counsel fees.
Defendant's appendix contains a letter from the parenting coordinator dated December 27, 2011, a month after this appeal was filed. In it, the coordinator reported to the judge that defendant had been cooperative, but plaintiff had not.
The judge granted plaintiff's requests to designate West Morris Pediatrics near Flanders as the child's primary care physician and Healthfirst NJ as his primary health insurer. In each instance, she ordered the parties to comply with their obligations for cooperation under the MSA. The judge specifically granted plaintiff's request that she not be ordered to relocate within five miles of defendant's residence. She denied much of the balance of plaintiff's requests, including the request that the child's education take place in plaintiff's county of residence. This appeal ensued.
Before us, defendant contends that the judge erred in permitting plaintiff to "unilaterally" choose the child's pediatrician and healthcare insurer in violation of paragraph 2 of the MSA. He further contends that the judge erred in "refusing to impose a mile radius upon plaintiff in light of the language of the [MSA] that the parties agreed to live within close proximity to each other." Lastly, defendant argues the judge erred in denying defendant's request for oral argument, and asks that if we reverse, the matter be remanded to a different judge.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
I.
We begin by stating the well-known principles that inform our review. We recently said that "[m]ore than financial contests, custody and parenting time disputes trigger the need for a family judge, acting as parents 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)). "In fact, interference with custody and parenting time may immediately and irreparably impact the best interests of a child and often represent classic cases necessitating court review." Ibid.
Nonetheless, the scope of appellate review is limited. We owe substantial deference to the Family Part's findings of fact because of that court's special expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Thus, "[a] reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record." MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (alteration in original). And, while we owe no special deference to the judge's legal conclusions, Manalapan Realty v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995), we "'should not disturb the factual findings and legal conclusions of the trial judge unless . . . convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice' or when we determine the court has palpably abused its discretion." Parish, supra, 412 N.J. Super. at 47 (quoting Cesare, supra, 154 N.J. at 412). We "reverse only to 'ensure that there is not a denial of justice' because the family court's 'conclusions are [] "clearly mistaken" or "wide of the mark.Id. at 48 (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)) (alteration in original).
II.
We first consider defendant's contention that the judge should have placed a geographic limitation on defendant's place of relocation in light of the MSA's language reflecting the parties' agreement that they live in close proximity to each other. In her written statement of reasons that accompanied the order under review, the judge stated:
The [c]ourt finds that the distance between [defendant's Piscataway address and plaintiff's Flanders address] is 38 minutes (29.8 miles) according to Google maps. The court recognizes that with traffic and weather conditions, the distance in minutes may vary. . . .
. . . The [c]ourt finds that Defendant, fully aware of [Dr. Levine's recommendation that he have primary residence] agreed that the Plaintiff should be designated as the parent of primary residence. . . .
Our [c]ourts have determined that approval is not needed to move to another part of the state. However, where such a move has a significant impact upon the relationship between the child and the non-residential custodial parent such that it is harmful or inimical to the child's best interest . . . modification of the custodial and parenting-time arrangement [may be] warranted. The [c]ourt finds that the Plaintiff choosing to reside less than an hour away does not violate the spirit and intent of the parties' agreement. The feasibility of continuing a shared parenting arrangement still exists. When the parties bargain for "close proximity" it does not mean they are necessarily chained to a particular location, understanding that in the future a move may be required. . . .
. . . [W]hile the Plaintiff's decision to move to Flanders, New Jersey, may not be the most convenient for the Defendant, it does not present [] obstacles which would require a complete modification of the existing custody and parenting time arrangement. The [c]ourt finds that there has been a very limited window during which the parties were able to ascertain whether the current arrangement can continue to work. Moreover, the Defendant has failed to establish a prima facie case that the child is suffering from a genuine and substantial harm from remaining in the Plaintiff's custody. . . . The Defendant outlines one instance when the child became ill and threw up in the car and states that it was the result of car sickness. The Defendant fails to submit any medical documentation from the child's doctor(s) which state that traveling in a car is detrimental to the child's mental or physical health. Although the additional time spent in the car for travel presents with some inconveniences, this does not establish that the child is suffering harm nor does it constitute a substantial change of circumstances warranting modification of the custodial and parenting-time arrangement.
In his certification in support of the motion, defendant supplied a copy of a report of Dr. Allwyn Levine, dated February 18, 2011. Levine was retained by defendant as a "custody expert." Levine opined that defendant should be the parent of "primary residential custod[y]."
Defendant contends that the judge failed to recognize that the parties agreed to a "true shared parenting arrangement" in the MSA, and plaintiff's decision to relocate to Flanders violated his reasonable expectations in reaching the agreement. He also contends that plaintiff's relocation to Flanders violated the agreement that the parties live in close proximity. We disagree.
The judge relied upon our holding in Rampolla v. Rampolla, 269 N.J. Super. 300 (App. Div. 1993). There, we reversed the trial court's order denying the plaintiff/mother's request to relocate to Staten Island. Id. at 307. The parties had operated for years under an MSA that reflected an agreement to share joint legal and residential custody while both parents resided in Mercer County. Id. at 301. The MSA further provided that the parties would live in close proximity, consult with each other in the event one wished to relocate and seek the court's intervention absent such agreement. Id. at 302. We noted that "[i]nstead of the status quo (regular contact or shared custody) being pitted against the move, the possibility of replicating the status quo in another location becomes a viable alternative with concomitant benefit to all parties." Id. at 308.
Defendant seeks to distinguish Rampolla by noting its more-developed record describing the parties' long-standing residence in the same county, which fostered their close mutual parenting of their children. He also argues that, in Rampolla, we specifically remanded the matter with instructions that the judge determine whether the father had ability to relocate nearer to Staten Island. Id. at 309. However, we conclude, any factual distinctions between this case and Rampolla do not diminish the application of its basic guiding principle, i.e., the court's focus should be on whether the relocation of one parent is inimical to the best interests of the child as demonstrated by the supportive parenting of both parents.
Here, the contentious nature of the parties' dispute raised its head even before the MSA was finalized. Defendant's attempts to have the judge declare he was the parent of primary residential custody pendente lite were twice rebuffed. When push came to shove, the parties agreed not to agree about any geographical limitation upon plaintiff's relocation to New Jersey, instead agreeing only that she would live in undefined "close proximity." We, therefore, reject defendant's characterization of plaintiff's decision as one that thwarted his reasonable expectations.
Although on the day the JOD was entered the judge understood she might ultimately need to interpret the terms of the MSA, she wisely concluded not impose a geographical limitation upon plaintiff's choice of relocation in New Jersey. We note that this is not an out-of-state removal case. See e.g., Baures v. Lewis, 167 N.J. 91, 115-17 (1991) (discussing the burden on the parent seeking out-of-state removal and consideration of N.J.S.A. 9:2-4 and other relevant factors in deciding such an application). Plaintiff relocated to New Jersey as she was required to do under the MSA.
As we noted in Schulze v. Morris, 361 N.J. Super. 419, 426 (App. Div. 2003), there is "no corresponding requirement or burden of application placed upon a residential custodial parent who desires to move, with the child, from one location within New Jersey to another." "When a non-residential custodial parent opposes the intrastate relocation of his or her child by the primary residential custodial parent on the basis that the move will be deleterious to the relationship between the child and the non-residential custodial parent, or will be otherwise inimical to the child's best interests, those factors outlined by Justice Long in Baures, supra, 167 N.J. at 116-17, as well as other relevant matters, should be considered in determining whether modification of the custodial and parenting-time arrangement is warranted." Ibid. That is precisely what the judge did in this case.
The ink was barely dry on plaintiff's lease, and the parties had hardly engaged in efforts to make the agreed-upon parenting time schedule work after her relocation from New York, before defendant brought his motion. Defendant's certification regarding the deleterious effects on his son occasioned by the relocation lacked any significance, and the judge so found. Defendant failed to show that plaintiff's relocation to Flanders, as opposed to a town in closer proximity to Piscataway, substantially interfered with his parenting time. "In issues of custody and visitation the question is always what is in the best interests of the children, no matter what the parties have agreed to." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (internal citations and alterations omitted). In short, defendant failed to establish any change in circumstances warranting a modification of the MSA, much less the imposition of geographical restrictions on plaintiff's choice of residence.
III.
We turn to defendant's claim that the judge erred in permitting plaintiff's unilateral selection of the child's pediatrician and health insurer. We agree with defendant that plaintiff's conduct did not comply with the provisions of the MSA that require mutual consultation and cooperation. The judge, too, recognized this and specifically warned plaintiff of her continuing obligations under the MSA in the order under review. The issue before us is, however, whether plaintiff's conduct requires us to reverse the order.
In the MSA, the parties clearly agreed to joint legal custody of their son with mutual obligations to consult and confer regarding major decisions. See Boardman v. Boardman, 314 N.J. Super. 340, 348 (App. Div. 1998) ("Under joint custody, the legal authority and responsibility for making 'major' decisions regarding the children's welfare is shared by both parents.") (citations omitted). We would agree that selecting a child's pediatrician and health insurer are "major decisions." See e.g., Asch v. Asch, 164 N.J. Super. 499, 504-05 (App. Div. 1978) (determining that the child's schooling was a major decision that under the MSA implicated consultation and cooperation and should not be made unilaterally in light of the parties agreement to share joint custody). However, here too, the record fails to demonstrate that plaintiff's selections of the pediatrician and health care provider were inimical to the child's best interests.
Defendant's certification stated that the child had seen the same pediatrician in Piscataway since his birth and plaintiff never consulted him regarding either the change of doctor or health insurer. He first learned of the change when he received an explanation of benefits from his own insurer. Defendant also argues that the selection of Healthfirst NJ as his son's primary health insurer may have financial implications for him, since he may be responsible for additional deductibles and co-payments under the plan.
In her certification, plaintiff contended that her son had seen two pediatricians, one in Queens and one in Flanders. She claimed that the MSA required her to attend to the child's medical needs when he was with her, and that she did so whenever necessary. She further claimed that the child developed "poison oak" in May 2011, necessitating her taking him to a nearby doctor for treatment. Plaintiff further claimed that defendant was made aware of all of the child's health issues and medications.
The judge noted in her order that the MSA only required the child's medical primary care provider "shall be in the State of New Jersey," thereby "insinuat[ing]" that a doctor had not actually been selected. She also required the parties to utilize the services of a parenting coordinator, reminded plaintiff of her obligations to comply with paragraph 2 of the MSA and warned that plaintiff's "failure to abide by [the MSA] shall result in sanctions." Regarding plaintiff's requests to designate the pediatrician and health insurer she selected for the child, the judge specifically indicated she was granting the application "IN PART," subject to these admonishments. The judge's written statement of reasons that accompanied the order did not specifically address these provisions of the order.
Nothing in the record demonstrated that plaintiff's choice of either the pediatrician or health insurer was inimical to the child's best interests. It is, however, equally clear that plaintiff failed to consult or confer with defendant before doing so.
Under the circumstances, we affirm the order under review "as a temporary order," as we did in Asch, supra, 169 N.J. Super. at 505. We believe that the judge essentially intended these provisions of the order to be temporary in nature, subject to review after the parties worked with a parenting coordinator. However, in light of the information provided regarding plaintiff's refusal to cooperate with the parenting coordinator after the order was entered, an assertion we do not necessarily accept, we remand the matter to the judge for further consideration of the issues regarding the selection of the child's pediatrician and health insurer.
The issues defendant raises in Point Four and Point Fivewill be considered together. First, we reject defendant's contention that the trial court erred in denying defendant's request for oral argument. Our review of the record indicates defendant never made a request for oral argument either in his original motion papers or his reply certification. The only ascertainable request for oral argument may be found in defendant's counsel's letters of March 23, 2011 and April 4, 2011 regarding whether the court should impose a "proximity radius of [the parties'] residences in New Jersey." Neither letter was part of the motion record filed on July 26, 2011. Accordingly, the judge's "finding . . . that oral argument would simply generate unnecessary counsel fees," memorialized in her order of October 6, 2011, will not be disturbed because no formal request for oral argument had been made. Second, we reject defendant's contention that the matter should be sent to a different judge. The judge had been dealing with the contentious nature of these proceedings for some time and, in our opinion, displayed an intimate and knowledgeable understanding of all of the claims. Defendant's arguments in this regard lack sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).
Point Four is incorrectly labeled Point Three in defendant's brief; Point Five is similarly mislabeled Point Four.
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We add one other caveat. The failure by either party to live up to his or her obligations under the MSA may not require modification of the essential contours of the agreement or choices made by either side regarding major decisions. Nonetheless, the continued failure of a party to confer and consult with the other, as required under the MSA and the agreement for joint legal custody, not only undermines the integrity of the agreement, but also inevitably jeopardizes any hope that the child's best interests can be served. In such cases, sanctions on the offending party should be imposed. Parrish, supra, 412 N.J. Super. at 54. The judge should consider whether this is such a case.
Affirmed and remanded. We do not retain jurisdiction.
I hereby certify that the foregoing
is a true copy of the original on
file in my office.
CLERK OF THE APPELLATE DIVISION