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Terry v. Terry

Decided: February 1, 1994.


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

Dreier, Brochin and Kleiner. The opinion of the court was delivered by Kleiner, J.s.c. (temporarily assigned).


Plaintiff James A. Terry and defendant Theresa Terry were married August 29, 1987, and were divorced by a dual judgment of divorce entered August 31, 1992. Plaintiff's appeal from the custody and visitation components of that judgment has been consolidated with an appeal from a separately entered order dated May 11, 1993. The latter order established plaintiff's obligation to pay child support but denied plaintiff's application, pending the resolution of the original appeal, for a modification of the trial court's original custody order.

Both orders concern the custody of Davina Terry, born February 20, 1988. As of the date of the divorce judgment, Davina was four and one-half years old and had been residing with plaintiff since April 19, 1991. The trial court awarded joint custody of Davina to the litigants but transferred residential custody to her mother and established a definitive visitation schedule for her father. We are constrained to conclude that the trial court failed to analyze the evidence presented at trial pursuant to the mandatory statutory considerations delineated in N.J.S.A. 9:2-4 and the standard of "the best interests of the child," and thus the portions of the original judgment pertinent to custody and visitation must be reversed and remanded for further proceedings consistent with this opinion. For reasons separately discussed, infra, we also reverse the order establishing the plaintiff's responsibility to pay child support.

When the parties married, plaintiff was a forty-four year old minister residing in Newark. He was earning $24,000 per year*fn1

and was provided housing by his congregation. Plaintiff was a widower who had raised the two children of his first marriage, then ages twenty-six and twenty-five, as a single parent following his first wife's death when their children were ages two and one. Defendant was a twenty-nine year old divorcee who was gainfully employed as a factory worker in Pittsburgh, Pennsylvania. Plaintiff's extended family also resided in the Pittsburgh area, and plaintiff met defendant while visiting his relatives in Pittsburgh in February 1987. After defendant learned she was pregnant, the parties married and established their first residence in Newark.

It was uncontradicted that on October 28, 1988, plaintiff struck the defendant in the face. Defendant contended at trial that plaintiff had been abusive, although not violent, both before and after the October 1988 incident. On December 15, 1988, defendant took their daughter, left the Newark residence, spent one night in a women's shelter in Essex County, and returned to the home of her mother in Whitsett, Pennsylvania.

On January 25, 1989, plaintiff filed a complaint seeking custody of Davina and defendant subsequently filed a counterclaim seeking the same relief. On March 14, 1989, a consent pendente lite order was executed establishing joint custody of Davina. The child was to reside with defendant in Pennsylvania, but plaintiff was granted visitation as follows: March 6, 1989 to March 11, 1989, at his parent's home in Pittsburgh; April 17, 1989 to April 29, 1989, at the former marital residence in Newark; May 22, 1989 to May 27, 1989, at his parent's residence in Pittsburgh. The court order also provided for an investigation by the Essex County Probation Department as to plaintiff and by the Fayette County, Pennsylvania Probation Department as to the defendant.

The Essex County investigation consisted of one interview of the plaintiff in the presence of Davina on April 26, 1989. The

probation officer, David Yennior, concluded that plaintiff was "a more than adequate caretaker."*fn2

The alternating visitation arrangement continued without the necessity of court intervention until March 1990. Plaintiff exercised his right of visitation by traveling to Pittsburgh to pick up his daughter and would make another trip to Pittsburgh to return Davina to defendant's residence. Additionally, another consent order was submitted to the court and was executed on January 25, 1990, which appointed Dr. Martha H. Page to conduct psychological testing of both parents and Davina in anticipation of a future custody trial.

Plaintiff experienced difficulty in arranging visitation during February 1990 and filed a motion returnable March 23, 1990 to resolve this alleged visitation scheduling problem. The motion resulted in an order which granted plaintiff visitation from April 2, 1990 to April 16, 1990, and from May 14, 1990 to May 21, 1990. When plaintiff failed to return Davina on May 21, 1990, defendant filed an emergent application to compel compliance with the consent order and the Family Part on May 23, 1990 ordered that Davina be returned to defendant by the following day. After a further hearing on the matter on June 1, 1990, the court granted plaintiff visitation in New Jersey from June 11, 1990 to June 25, 1990, and from July 23, 1990 to August 1, 1990, and scheduled a final custody hearing for August 1, 1990.*fn3

On the day of trial, the parties appeared in court and acknowledged they had negotiated a final custody agreement. The terms

of the agreement were placed on the record. Paragraph three of the agreement is significant:

3. Davina Terry will be in the joint and shared custody of both parents. Each parent will have physical custody of Davina for a one month period every other month at that parent's regular residence. This arrangement will be implemented for a four month trial period. Thereafter, by further agreement of the parties, the alternating months [sic] system will either be adopted as a means of shared custody or the parties will negotiate another mutually acceptable system.

The trial period for the alternating months [sic] system will be as follows:

A. Rev. Terry will have physical custody of Davina until Monday, August 6, 1990, on which day he will bring Davina to the home of Mrs. Terry in Perryopolis, Pennsylvania.

B. Davina will reside with Mrs. Terry from August 6, 1990 until on or about September 6, 1990.

C. On or about September 6, 1990, Mrs. Terry will deliver Davina to the physical custody of Rev. Terry. Davina will then reside with Rev. Terry in Newark, New Jersey until on or about October 6, 1990.

D. On or about October 6, 1990 Rev. Terry will bring the child to Mrs. Terry's home, where the child will reside until on or about November 6, 1990.

E. On or about November 6, 1990, Mrs. Terry will deliver the child to the physical custody of Rev. Terry and Davina will reside with Rev. Terry until on or about December 6, 1990.

F. On or about December 6, 1990, Rev. Terry will bring the child to Mrs. Terry's home.

G. Sometime during the month of December, both parties agree to discuss the alternating month system. If the system works, it will continue as specified above. If the parties are not satisfied with how the system worked over the four month period, they will negotiate to arrive at a mutually acceptable system of shared custody. The parties can each call their respective attorneys for assistance if necessary.

H. Exact dates and details, such as where and when, for the transfer of Davina from one residence to the other can be worked out between the parties on a case by case basis.

We note that on June 18, 1990, plaintiff filed a separate complaint for divorce and custody under Docket No. FM-25890-90 and defendant filed a counterclaim seeking the identical relief on August 7, 1990.*fn4

In early September 1990, the parties temporarily reconciled at plaintiff's residence in Newark. Later that month, the plaintiff obtained a leave of absence from his ministry and the parties moved to the home of plaintiff's mother in Pittsburgh. They resided together until October 2, 1990, when defendant moved to Perryopolis, Pennsylvania.

In November 1990, defendant filed a petition with the Court of Common Pleas of Allegheny County, Pennsylvania designated "Petition to Recognize and Enforce Out-of-State Custody Decree and Order of Court." Defendant failed to inform the Pennsylvania Court of the unsuccessful reconciliation and otherwise misstated the status of the parties in paragraph five of her petition:

5. The father, James Terry, III currently resides in Allegheny County, Pennsylvania with the child. The mother, Theresa Terry, currently resides in Fayette County, Pennsylvania. Due to Mr. Terry's refusal to comply with Judge Cass's Order, which would require that he turn the child over to Theresa Terry for the month of November, the child presently resides in Allegheny County, Pennsylvania. Previous contempts of the New Jersey Order have occurred in the recent past when father has retained the child in Allegheny County in defiance of the Court Order and against mother's will. The father has only recently moved from New Jersey to Allegheny County. Petitioner avers that father has informed her he intends to remain in Allegheny County with the child. The mother has resided in Fayette County since December of 1988. Neither party has contacts with New Jersey at the present time.

That allegation specifically contradicted 0 the terms of the last order in Essex County which provided that plaintiff was to have physical custody during November 1990. The ad damnum clause of defendant's petition provided:

WHEREFORE, Petitioner, Theresa Terry, requests that this Honorable Court enter an Order recognizing and enforcing the New Jersey Order of August 6, 1990, as a valid out of state custody decree pursuant to the Uniform Child Custody Jurisdiction Act, 42 Pa.C.S.A. ยง 5341 et seq., and directing the Clerk of Court of Common Pleas of Allegheny County to file and treat the Essex ...

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