Opinion
DOCKET NO. A-1246-10T3
12-23-2011
P.P., Plaintiff-Appellant, v. N.P.,1Defendant-Respondent.
Edward Fradkin argued the cause for appellant (Law Office of Edward Fradkin, L.L.C., attorneys; Mr. Fradkin, on the brief). Amy Sara Cores argued the cause for respondent (Hoffman, Schrieber & Cores, P.C., attorneys; Ms. Cores, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Defendant-Respondent.
Before Judges Sabatino and Fasciale.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-759-06C.
Edward Fradkin argued the cause for appellant (Law Office of Edward Fradkin, L.L.C., attorneys; Mr. Fradkin, on the brief).
Amy Sara Cores argued the cause for respondent (Hoffman, Schrieber & Cores, P.C., attorneys; Ms. Cores, on the brief). PER CURIAM
In this post-divorce matrimonial case, plaintiff-wife appeals from a September 14, 2010 order restraining her from relocating within the state, and an October 5, 2010 order establishing parenting time. We affirm.
The parties married in 1999, had three children, now between the ages of seven and twelve, and divorced in 2006. They entered into a property settlement agreement (PSA) which addressed custody and visitation. Pursuant to the PSA
[Defendant] and [plaintiff] recognize that it is in the best interest of the children that the parties shall share joint legal custody, with the understanding that [plaintiff] shall be designated as the primary residential custodial parent. All major decisions concerning the children's health, safety, education, welfare and religious upbringing shall be joint and equal decisions.The parties agreed not to "do anything which may estrange their children from the other party." Concerning visitation, the PSA provided:
[Defendant] shall have reasonable and liberal visitation privileges of the children, provided the same do not conflict with the children's school or social schedules and provided reasonable notice is given. .... In the event either party finds it necessary to further define and/or modify the visitation and timesharing schedule, they shall be entitled to do so through [m]ediation and ultimately through the [c]ourts, if [m]ediation fails.
In February 2009, defendant's visitation with his children was temporarily interrupted by his involvement in the criminal justice system. The court then permitted defendant to gradually resume visitation, and in the fall of 2009, the judge entered an interim visitation schedule. In February 2010, defendant filed a motion to establish permanent parenting time for holidays, birthdays, and summer vacations. The judge denied the motion without prejudice and referred the parties to mediation pursuant to the PSA. Meanwhile, the parties continued to follow the visitation schedule that had been entered in the fall of 2009. The parties unsuccessfully mediated the issue of parenting time, and they then filed separate applications leading to the two orders under review.
In August 2010, defendant moved again to establish parenting time. In September 2010, plaintiff notified defendant that she intended to move with the children from Monmouth County to Verona. Defendant immediately filed an order to show cause (OTSC) why plaintiff should not be restrained from relocating. The judge conducted a hearing at which plaintiff appeared pro se. After questioning plaintiff at the initial return date of the OTSC, the judge restrained her from relocating with the children and stated:
[T]he fact that the kids started [school] in [Monmouth County] and that's where they've been going to school, the kids are at a tender age of 6, 8 and 11. Now to pick them up and send them off to Verona when you don't even have really a good reason to go to Verona other than the fact that you have family . . . that lives in north Jersey,Plaintiff filed a cross-motion seeking to enforce the interim parenting time schedule entered by the court in 2009, and sought reconsideration of the judge's order restraining her from moving. The judge conducted oral argument on October 5, 2010, denied plaintiff's cross-motion and her request for reconsideration, and granted defendant's motion resolving the outstanding parenting issues.
that you're hoping to get a job. That you have an accountant degree but you don't have any specific job lined up or for that matter, as [defendant's counsel] pointed out, you're not, it's not like a situation that you are married and you're relocating. Your request is denied and I'm going to sign an order which will prevent you from moving the children to Verona and from removing the children from the current school system[.]
On appeal, plaintiff contends that the Family Part judge failed to (1) apply the correct legal principles when he restrained her from relocating to Verona; (2) conduct a plenary hearing to determine whether changed circumstances existed to justify modifying parenting time; and (3) make sufficient findings of fact and conclusions of law.
We defer to the facts found by a Family Part judge "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). In denying plaintiff's reconsideration motion, the judge found:
[I]f I felt that [plaintiff] had a reason to go to Verona such as employment waiting for her in Verona or family that lived in Verona, or Essex County for that matter, which is where Verona is located, or if [plaintiff] had a — was engaged to be married to a person that lived in Verona. If there was some reason other than the mere fact that she wanted to go to Verona, you know, I would consider it. I wasn't getting any good enough reason from [plaintiff] for her to go to Verona.We see no reason to disturb these factual findings, which are supported by adequate, substantial, and credible evidence in the record.
And when [plaintiff] testified at the order to show cause, she — the real reason that I got for her wanting to go to Verona was so that she could get [as] far away from [defendant] as she could without leaving the state. Yes, she said she wants to be closer to New York City[;] well, I don't find that to be a compelling reason. She said she wants to be close to the City so she could find a job in New York City. Well, with mass transit today, New York City is very accessible to Monmouth County. So, I don't find that to be a compelling argument by [plaintiff].
I think that she's just trying to make it difficult for [defendant] to exercise his parenting time with his children. I believe that from the tone of her explanation she gave at the order to show cause and also the fact that she didn't give any strong reasons to go to Verona other than, you know, she just randomly picked Verona.
Although plaintiff contends that the judge applied the wrong legal standard in denying her request to move, we focus on the PSA language. When PSA terms are "plain and explicit" and "set forth in clear and unambiguous language, leaving no room for interpretation," we enforce them "as written and agreed to by the parties, absent a substantial change in circumstances" or unless they "would no longer be fair or equitable." Dolce v. Dolce, 383 N.J. Super. 11, 21 (App. Div. 2006); see also Eaton v. Grau, 368 N.J. Super. 215, 224 (App. Div. 2004) (perceiving "no inequity or manifest injustice in enforcing the plain and clear terms of the PSA as found by the motion judge"). Moreover, "'fair and definitive arrangements arrived at by mutual consent should not be unnecessarily or lightly disturbed.'" Konzelman v. Konzelman, 158 N.J. 185, 193-94 (1999) (quoting Smith v. Smith, 72 N.J. 350, 358 (1977)).
Plaintiff argues that the judge treated her request more like an application to relocate to another state, rather than to move within New Jersey. She contends that the judge erred by relying on the two-pronged standard enunciated in Baures v. Lewis, 167 N.J. 91, 118 (2001) (holding that the party seeking to move "should initially produce evidence to establish prima facie that (1) there is a good faith reason for the move and (2) that the move will not be inimical to the child's interests").
In Schulze v. Morris, 361 N.J. Super. 419, 426 (App. Div. 2003), we concluded that a residential custodial parent's relocation within the State does not constitute a removal action pursuant to N.J.S.A. 9:22, requiring advance approval for the proposed relocation. Although approval is not needed under the statute to move to another part of the State, we explained:
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, 770 A.2d 214, as well as other relevant matters, should be considered in determining whether modification of the custodial and parenting-time arrangement is warranted. Of course, as noted by the Court, "not all factors [would] be relevant and of equal weight in every case." Id. at 117, 770 A.2d 214.
[Schulze, supra, 361 N.J. Super. at 426-27.]
Here, the parties agreed in the PSA not to "do anything which may estrange their children from the other party." The judge found that plaintiff desired to "make it difficult for [defendant] to exercise his parenting time with his children," and that she attempted to "get [as] far away from [defendant] as she could without leaving the state." Because the plain language of the PSA precludes any attempt by one party to alienate the children from the other party, the judge did not err by preventing the move.
Finally, plaintiff contends that the judge failed to make sufficient findings of fact, conduct a plenary hearing, and find that changed circumstances existed to modify parenting time, in particular, a summer vacation schedule. We disagree.
Plaintiff argues that the judge decided the vacation visitation schedule when he granted defendant two weeks in the summer of 2010. She contends that because the judge allowed defendant two weeks vacation time with his children, he was required to show changed circumstances to modify the summer visitation schedule. In permitting visitation during the summer of 2010, the judge stated that he was "not disposed to create a finite summer vacation schedule for 2010. There are entirely too many variables and too little time to create a detailed vacation schedule." See Barblock v. Barblock, 383 N.J. Super. 114, 122-23 (App. Div.), certif. denied, 187 N.J. 81 (2006) (emphasizing that "'a plenary hearing is not necessary in every case where removal of children is at issue, but rather only where a prima facie showing has been made that a genuine issue of fact exists bearing upon a critical question such as the best interests of the children, interference with parental rights, or the existence of a good faith reason to move'" (quoting Pfeiffer v. Ilson, 318 N.J. Super. 13, 14 (App. Div. 1999))). Therefore, the judge did not modify an existing schedule; he established one, obviating the need to conduct a plenary hearing or find changed circumstances on such a limited issue.
At oral argument, counsel stated that the parties have had ongoing proceedings in the trial court regarding financial issues. In the event that an application for appellate counsel fees is made pursuant to Rule 2:11-4, the parties are directed to the trial court for consideration of the appropriateness and amount, if any, of an award of such fees.
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Here, because the judge restrained plaintiff from moving for various justifiable reasons we discuss infra, he did not analyze, pursuant to Schulze, whether her intended move constituted changed circumstances, and if so, whether modification to the custodial and parenting time arrangement was warranted. Ibid.