On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County.
Antell, Dreier and Brochin. The opinion of the court was delivered by Brochin, J.s.c. (temporarily assigned).
Plaintiff, Linda Scott Murnane, and defendant, Dennis J. Murnane, were divorced by a judgment which provided that the parties would have joint custody of their only child, Andre, who was born February 28, 1982, that "primary residential custody" would remain with Andre's mother and that she "would not remove the child from the residence in Stroudsburg, Pennsylvania without the consent of the defendant except to move into the State of New Jersey. . . ." The judgment also provided that Ms. Murnane would resume her maiden name, Scott, and we will refer to her as Ms. Scott in this opinion.
Plaintiff and defendant were married November 21, 1981. They were permanently separated in January 1985 after a prior separation and a failed reconciliation. They were divorced
January 15, 1988. Ms. Scott appeals from the judgment of divorce insofar as it prohibits her from moving with Andre to her parents' home in Orlando, Florida.
At the time of the hearing before the trial court, Ms. Scott was 33 years old. From the age of two until she was 25, she lived in Orlando, Florida. From there she moved to New York City where she lived for two and a half years, and then moved to Watchung, New Jersey, with Mr. Murnane. They lived in Watchung for about eight months and then moved to Califon, New Jersey, where they resided until their final separation in January 1985. By agreement, Ms. Scott then moved with Andre to a rural area on the outskirts of Stroudsburg, Pennsylvania, where she lives in an old rented farmhouse, sharing the house with an elderly woman who is either the owner or another tenant. Ms. Scott has no relatives in New Jersey or Pennsylvania. The record does not contain any evidence of what friends or other source of emotional support or practical assistance she has in the area.
Mr. Murnane, who now lives in Califon, lived most of his life in Springfield, New Jersey. His father still lives there and one sister and her husband live in Morristown. Mr. Murnane is employed as a cable maintenance man for New Jersey Bell Telephone Company. By agreement, he takes his son for visitation every weekend from approximately noon on Saturday until Sunday evening and spends vacations with him. During the weekend visits, Andre stays in Mr. Murnane's home in Califon.
Ms. Scott is employed as a waitress and, part time, as a ballet teacher. Her take home pay is about $175 a week.
After an extended period of career counseling, Ms. Scott decided that she wanted to improve her economic situation by making a career in the field of hospitality management. She learned, however, that in order to gain entry to that field at anything other than the lowest level, she needed additional college study and a degree. However, if there is no one
available to help her with the care of her son and she is required to continue to work at two jobs in order to support herself, she feels that she will be unable to attend college.
Ms. Scott's parents have an ample home in a middle class neighborhood in Orlando, Florida, in which there is sufficient room for her and Andre. There is a university nearby which offers the courses which she is seeking, and her parents have offered to let her and Andre live with them, rent free, while she is pursuing her education. She is confident that when she has received her degree, she will be readily able to find appropriate employment in the Orlando area which, of course, is the site of Disneyworld and of numerous other attractions for business and vacation visitors. Furthermore, according to Ms. Scott, wages are higher in Orlando than in East Stroudsburg and the cost of living is about the same. For these reasons, Ms. Scott sought sole custody of Andre and authorization to move with her son to Orlando, Florida.
Mr. Murnane opposed his wife's application to move to Florida with Andre. Both parties agree that Mr. Murnane is dedicated to his son, that he is a good father, and that they have a good relationship. Because Mr. Murnane works late during the week, he and Andre have been able to spend time together on a regular basis only on weekends. These regular weekly visits would, of course, be impossible if Mr. Murnane continued to live in New Jersey and Andre lived in Florida. Furthermore, Mr. Murnane contends, visits for longer periods would be difficult because he gets only one week's vacation during the summer and because of the expense of air transportation between New Jersey and Florida, particularly while Andre is too young to fly unaccompanied.
Because of Mr. Murnane's concerns about his inability to afford the air fare for trips between Florida and New Jersey, the parties agreed on the record that if Ms. Scott was permitted to move to Florida with Andre, child support would be reduced. If ...