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Winer v. Winer

Decided: June 7, 1990.

LEE EPSTEIN WINER, PLAINTIFF-APPELLANT, AND CROSS-RESPONDENT,
v.
KENNETH BRIAN WINER, DEFENDANT-RESPONDENT, AND CROSS-APPELLANT



On appeal from the Superior Court of New Jersey, Chancery Division, Essex County.

Shebell and Keefe. The opinion of the court was delivered by Shebell, J.A.D.

Shebell

[241 NJSuper Page 512] Plaintiff Lee Epstein Winer appeals from those portions of a final dual judgment of divorce entered by the Family Part that denied her request to relocate to Atlanta, Georgia and those

portions of the judgment pertaining to equitable distribution. Defendant Kenneth B. Winer cross-appeals with respect to certain aspects of the equitable distribution of marital property.

Plaintiff and defendant met in Atlanta, Georgia around 1976 when defendant lived and worked in Tennessee. In 1979, defendant moved to Atlanta in order to attend graduate school, after which plaintiff and defendant started to see more of one another. On plaintiff's birthday, August 1, 1980, defendant proposed marriage and presented her with a four-carat engagement ring. The ring had been left to defendant by his deceased mother. During the parties' engagement, and throughout their marriage, the ring was kept in a safe deposit box due to its value and was only worn on special social occasions.

In January 1980, defendant purchased a condominium in Atlanta with monies from his inheritance. He stated at trial that his reason for purchasing the condominium was twofold:

Number one, I wasn't happy where I was living, and I wanted to live somewhere better; and I wanted to do it then and not wait. So it was that reason, and also for after we got married I knew we could live there and be comfortable, but instead of buying a small place I bought a little bit larger place.

According to plaintiff, the condominium was purchased to be the couples' marital home. Title to the property was, however, placed exclusively in defendant's name. During March of 1981, the couple moved into the condominium. Plaintiff expended her own time and money decorating the couple's new home.

On April 5, 1981, the couple were married and they continued to reside at the condominium for approximately a year and a half. During the first six months of the marriage the defendant was unemployed. He then was able to obtain a position selling insurance. He remained at that position for approximately one year. During the parties' second year of marriage, defendant rejoined his family's business in Tennessee. The parties moved to Tennessee, and rented the Atlanta condominium.

In September of 1983, the parties' first child was born in Tennessee. At the end of 1983, defendant was transferred to the family business' home office in New Jersey. Initially, the couple lived in a rented condominium, but soon bought their own home in Livingston. On October 14, 1985, the parties' second child was born. The couple had ongoing problems with their marriage occasioning them to visit therapists several times. In the most recent years of their marriage, defendant would leave the family home for work as early as 7 a.m. and not return home until 7:30 p.m. or later.

In support of her request for permission to relocate with the parties' children to Atlanta, plaintiff demonstrated that she had family and friends in Atlanta that would help provide her and the children with emotional and financial support. Testimony at trial revealed that both parties had used drugs on occasion. In addition, the testimony showed that several members of plaintiff's family had past problems of alcohol and drug abuse. Plaintiff's mother testified that she was a recovering alcoholic and drug addict.

The court also had available to it the report of a court appointed psychiatrist, who found both plaintiff and defendant to be suitable parents. Among his other conclusions, the psychiatrist found that plaintiff "makes a major point about her stable and supportive Atlanta family. If [defendant's] assessment is accurate, if [ sic ] it is quite possible [plaintiff's] family may prove to be less supportive then she says."

The court decided to place the custody of the children with plaintiff with the following caveat:

The Court wants to make it abundantly clear to plaintiff that if it is determined in the future that she uses marijuana or any other illegal drug in her home while her children are present, regardless of whether they are in the same room as she is while she is engaging in this activity, the Court would not hesitate to change custody.

Plaintiff testified that she wanted defendant to have liberal visitation rights if relocation were allowed. Defendant, on the other hand, asserted, "I can't imagine any visitation of my

children that would be satisfactory [in the event of relocation]; but I would want to see them as much as possible."

The court granted the parties a judgment of divorce and found that the Atlanta condominium, the parties' 1985 Volvo station wagon, the marital home, the contents of the marital home, both plaintiff's and defendant's individual I.R.A.'s and joint money market fund were subject to equitable distribution. The court also awarded weekly child support of $100 per week for each child and $350 per week alimony. Regarding visitation, the court suggested that "defendant see his children two-weekday nights a week after work and alternate weekends from 8 a.m. Saturday to 8 p.m. Sunday and alternate holidays."

Defendant held an interest in a realty investment partnership. In addition, defendant participated in a 401(K) plan for profit sharing and retirement benefits. According to the court's decision from the bench, there was little evidence offered at trial with respect to defendant's 401(K) plan. The court concluded that contributions to the plan did not commence until defendant was employed for five years and that his interest in the plan did not vest for 15 to 20 years. It determined that there was insufficient evidence regarding the 401(K) plan and excluded it from equitable distribution. With respect to the realty investment partnership, the court concluded that because the defendant acquired his interest in the realty investment partnership prior to the marriage, and never offered it in any way as a gift to plaintiff, it was excluded from equitable distribution.

The court also determined that the engagement ring was given to plaintiff as a conditional gift subject to actual marriage and was not subject to equitable distribution. The court decided "that plaintiff should receive 25 percent of the net value of the assets."

I.

Plaintiff contends that pursuant to the New Jersey Supreme Court's decision in Holder v. Polanski, 111 N.J. 344, 544 A.2d 852

(1988), which interprets the "cause" provision of N.J.S.A. 9:2-2, she should have been allowed to relocate with the children to Atlanta. Plaintiff argues that defendant has not met his burden of showing that if relocation did occur a reasonable visitation schedule could not be arranged.

In support of her position the plaintiff tracks the course of court interpretations of the "cause" provision of N.J.S.A. 9:2-2 and the standards used to guide decisions regarding whether relocation of a custodial parent is proper. See D'Onofrio v. D'Onofrio, 144 N.J. Super. 200, 365 A.2d 27 (Ch.Div.), aff'd, 144 N.J. Super. 352, 365 A.2d 716 (App.Div.1976); Cooper v. Cooper, 99 N.J. 42, 491 A.2d 606 (1984); Holder, 111 N.J. 344, 544 A.2d 852 (1988) (given in order of historical development). Plaintiff cites various decisions from other states to support her conclusion that the national trend favors the allowance of relocation of a custodial parent unless there is proof that such a move would be against the best interests of the child[ren]. See, e.g., Novak v. Novak, 441 N.W. 2d 656 (N.D.1989); Bohms v. Bohms, 144 Wis. 2d 490, 424 N.W. 2d 408 (1988); Blake v. Blake, 207 Conn. 217, 541 A.2d 1201 (1988); Pintado v. Leggett, 545 So. 2d 311 (Fla.Dist.Ct.App.1989); Anderson v. Anderson, 170 Mich.App. 305, 427 N.W. 2d 627 (Mich.Ct.App.1988).

N.J.S.A. 9:2-2 provides:

When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are natives of this State, or have resided five years within its limits, they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order. The court, upon application of any person in behalf of such minors, may require such security and issue such writs and processes as shall be deemed proper to effect the purposes of this section.

In Cooper v. Cooper, 99 N.J. 42, 491 A.2d 606 (1984), the Supreme Court noted that the vast majority of states fall somewhere between requiring no showing of cause in the absence of specific evidence from the noncustodial parent that the move would be against the best interests of the child[ren]

and the standard of "exceptional circumstances" before removal is permissible. Id. at 52, 491 A.2d 606. ...


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