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Horswell v. Horswell

January 30, 1997


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County.

Approved for Publication February 3, 1997.

Before Judges Long, Skillman and Cuff. The opinion of the court was delivered by Skillman, J.A.D.

The opinion of the court was delivered by: Skillman

The opinion of the court was delivered by


This is a matrimonial case involving a custodial parent's application for the permission required by N.J.S.A. 9:2-2 to relocate to another State with the children of the marriage.

Defendant and plaintiff, a career non-commissioned Air Force officer, resided in military housing at the McGuire Air Force base. On July 13, 1993, defendant left the marital home and took the parties' two children, who were then one and three years old, to Arkansas, where her parents and other relatives reside. On August 9, 1993, defendant filed a complaint in an Arkansas state court seeking custody of the children and support.

On August 18, 1993, plaintiff filed this matrimonial action seeking a divorce, custody of the children, and various other relief. On that same day, plaintiff obtained an order to show cause which, among other things, required defendant to return to New Jersey with the children. Plaintiff subsequently obtained an order from the Arkansas court enforcing this order.

In conformity with these orders, defendant returned to New Jersey in September of 1993 and resumed occupancy of the former marital home at the McGuire Air Force base. However, when the Air Force became aware that plaintiff was not residing with defendant, it required her to vacate the premises.

As a result, defendant applied to the trial court for permission to relocate to Arkansas with the children, and on February 25, 1994, the court entered an order granting this relief. This order awarded the parties joint legal custody of the children but provided that defendant would have sole residential custody. In response to defendant's motion, the trial court entered another order on May 20, 1994 which "reconfirmed" plaintiff's right to reside in Arkansas with the children but directed that "[a] Holder hearing shall be held in view of the genuine issue of material fact concerning the temporary agreement between the parties." *fn1 For reasons that are not revealed by the record before us, this hearing was not commenced until more than a year later. *fn2

Defendant testified at the hearing that she moved to Arkansas after she was evicted from McGuire Air Force base because she could not obtain housing in New Jersey and her parents were able to provide her with not only a suitable place to live but also emotional support and assistance in caring for the children. Defendant indicated that she had been residing in her parent's home, a four bedroom house located on five acres of property with a swimming pool since moving to Arkansas, and that she and the children were in the process of moving into a two bedroom trailer on the property. She also indicated that the parties' older child was attending a local elementary school and that the younger child was enrolled in a preschool program. Defendant further testified that her grandfather, a sister and her husband, and a number of aunts, uncles and cousins, all live in close proximity to her parents' home, and that she and the children frequently see these relatives. After moving to Arkansas, defendant completed the education required to become a medical assistant, and she is currently employed full-time in this capacity. However, defendant testified that she would need additional education to obtain a job as a medical assistant in New Jersey. Defendant's parents provide her with both financial assistance and help in caring for the children while she is at work.

Plaintiff, who is a "dormitory manager" at McGuire Air Force base with the rank of "Technical Sergeant," testified that he had applied for transfers to a base in Arkansas on various occasions but that his applications were denied. Plaintiff also testified that he had no reason to be optimistic that he would be able to obtain such a transfer in the future and that he will not become eligible to retire from the Air Force for another five years. Plaintiff further testified that he had been able to visit with his children only three times during the year and a half defendant has resided in Arkansas and that his limited opportunity to be with the children has had a significant adverse impact upon their relationship.

Dr. Andrew Musetto, a court appointed "custody evaluator," testified that it would be "very hard to sustain a bonding between the children and their father" if plaintiff's vacation schedule limited him to thirty days of visitation each year. Therefore, although Dr. Musetto concluded that the children should remain in defendant's custody, he also recommended that she should be required to return to New Jersey. However, Dr. Musetto acknowledged in cross-examination that he had had no contact with the family since December of 1994 and that the parties' "course of conduct" during the intervening period could affect his Conclusions.

The trial court found, without any Discussion of the evidence presented at the hearing, that defendant did not have "a sincere, good faith reason" for moving from New Jersey to Arkansas. The court also found that defendant's move to Arkansas had adversely affected plaintiff's visitation rights. In addition, the court found that "the move was not to the best interest of the children." The court based this finding solely on "the fact that [the children] have been denied a close relationship with their father," without any Discussion of other circumstances relating to the children's welfare, including whether defendant would have the financial means to support the children in New Jersey or whether the children would be adversely affected by being required to move away from their grandparents and other close relatives. Based on these ...

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