On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County.
Approved for Publication February 6, 1997. As Corrected February 13, 1997. Second Correction April 21, 1997.
Before Judges Michels, Kleiner and Coburn. The opinion of the court was delivered by Michels, P.j.a.d. Kleiner, J.A.D., Dissenting
The opinion of the court was delivered by: Michels
The opinion of the court was delivered by
Plaintiff Andrew Levine appeals from an order of the Chancery Division, Family Part, that denied his motion for permission to permanently remove Jessica Levine, the minor child born of his marriage to defendant Rosemary Levine Bacon, from New Jersey to Florida.
Plaintiff and defendant were married on March 17, 1988. Jessica, the parties' only child, was born to the couple on October 6, 1988. The parties separated in or about May 1990, with plaintiff taking custody of Jessica. Plaintiff filed for divorce in June 1990. A pendente lite custody order was filed August 23, 1991, designating plaintiff as primary residential parent. This order set defendant's visitation schedule and required her to pay child support. Following a settlement of the matter, a Final Judgment of Divorce was entered on January 13, 1992, which, in pertinent part, provided:
1. That the plaintiff and defendant shall have joint legal custody of Jessica Lyn, the minor child of the marriage. The plaintiff shall be the primary residential parent.
2. The defendant shall have visitation with the minor child on two consecutive weekends from Friday at 5 p.m. until Sunday at 5 p.m. After two consecutive weekends the defendant shall have visitation with the child on Wednesday from 5 p.m. until 12 noon the next Thursday. The defendant shall then have no visitation on the third weekend. The defendant shall have visitation on the Wednesday following the third weekend when she has no visitation from Wednesday at 5 p.m. until the next Thursday at 12 noon. Thereafter the defendant shall recommence this visitation schedule on the next weekend. The defendant shall be responsible for picking up and dropping off the child on the aforesaid days and times except that the plaintiff shall pick up the child at 12 noon on Thursdays as aforesaid at the home of the defendant.
3. Each party shall have the right to two weeks summer visitation with the child (which may or may not be consecutive) during which time the other parent will have no custodial time or visitation. Each party shall give the other party 60 days notice of when they intend to exercise their summer visitation.
The judgment also set forth the holiday visitation schedule and required defendant to pay $40 per week in child support.
According to plaintiff, when Jessica started school in 1993, the schedule was revised and the Wednesday overnights were eliminated. Visitation now occurs on Thursdays from 3:30 p.m. to 8:00 p.m. Nevertheless, with this schedule, defendant usually spends two days per week with Jessica in addition to the vacation period.
In August 1992, plaintiff married Valerie Levine (Valerie), a Hillsboro psychologist, with whom he now lives in Princeton. In December 1994, defendant married Dylan Bacon (Dylan), with whom she now lives in Princeton. They have a child named Savannah, who was born on August 3, 1993.
For the past thirteen years, plaintiff managed Bond Cleaners, a Trenton dry cleaning plant with about twenty-five employees, which his father owned. Bond Cleaners' clientele included large hotel accounts, as well as wholesale accounts, and a very good walk-up retail trade. As manager, plaintiff handled the hotels' complaints and was responsible for managing everything except the money. He scheduled employees; trained new help; watched the distributions, the drop stores, and the hotels; ran the drycleaning and laundry departments; and looked over sales. His responsibilities included quality control, employee problems, occasional payroll problems, and special requests by customers on their garments.
Plaintiff's father sold Bond Cleaners in November of 1994. As a condition of sale, plaintiff signed a restrictive covenant/covenant not to compete for which he was paid consideration. This agreement prevented plaintiff and his father from opening or working with the same or similar business within a twenty-five mile radius of the New Jersey counties of Camden, Burlington, Mercer, Middlesex and Somerset, as well as Bucks County, Pennsylvania, for a period of ten years.
Pursuant to an employment agreement, dated November 14, 1994, plaintiff received $900 per week plus benefits to remain at Bond Cleaners until July 14, 1995 and teach the new owner the business. Plaintiff claimed that there was no possibility for an extension of this contract. He also stated that he looked for but could not find a drycleaning plant manager position in those New Jersey counties not implicated by the restrictive covenant and looked at numerous issues of American Drycleaner, a national publication that lists employment opportunities in the industry, but found no New Jersey listings.
In light of his claim of a lack of employment opportunities in this State, plaintiff now wishes to move to Florida. According to plaintiff, the owner of Clean-Pro, a business in Florida, has offered him a "ground floor" position selling software systems, used by the dry cleaning industry, on Florida's west coast. Plaintiff claims that he will need additional training regarding computers before he is able to sell the product effectively. Further, according to plaintiff, his sales will initially target the Sarasota area but, based on Discussions with the owner of the business, he anticipates eventually moving into a sales management position. Plaintiff claims that if he could find a job in New Jersey similar to his Florida offer, he would consider staying.
If he moves to Florida, plaintiff anticipates that he will initially be working out of his home for two full days, not including weekends. He expects to spend the other three weekdays on the road for at least five hours a day. Plaintiff admitted, however, that he is unsure exactly where his sales territory will be and, thus, the time he would spend outside of his home office might vary. If he had to go to Naples, Florida for business, he admits he would spend at least four total hours traveling to and from the city. Plaintiff further acknowledges that he might have to travel as far as Tallahassee, which is about six hours from Sarasota and would require an overnight trip.
In regard to remuneration, plaintiff was offered $750 a week to start and a commission of 5% on a software only sale and 10% on a combined software and hardware sale. Additionally, plaintiff would receive medical benefits and three weeks vacation. Based upon his Discussions with the owner, plaintiff anticipates earning an additional $2,000 per month, which represents a total salary of approximately $50,000 plus benefits.
Plaintiff and Valerie wish to sell their New Jersey home and buy a single-family home near Sarasota, which they describe as a culturally rich area located twenty minutes from his parents' home and defendant's parents' home. He anticipates getting a bigger house for less money in Florida because building costs, as well as all costs, are generally lower there. Plaintiff does not believe that moving Jessica to Florida would be harmful to her in any way. He and Valerie researched the Sarasota area schools and found them to be "very good." Plaintiff testified that Jessica would attend public school, but if "she wasn't challenged in public school, then we would consider private school."
Plaintiff admitted that Princeton has an excellent school system and is also a culturally rich area. In comparing schools in Princeton and Sarasota, plaintiff admitted that he knows the Sarasota schools are "not as good as [those in] Princeton." However, plaintiff claimed that even if the court denied his application and he stayed in New Jersey, he would not be able to remain in Princeton because of the covenant. Thus, he anticipates he would need to either move to another county where he can work or possibly go back to school.
Plaintiff believes that his work schedule in the Florida job would enable him to spend more time with Jessica than he currently does, allowing him to put Jessica on the bus in the morning and to be there when she gets home from school every day. Plaintiff also claims that if allowed to move to Florida, he "would promote visitation and a healthy relationship with both sets of [Jessica's] grandparents." While he hopes to "mend our fences," plaintiff acknowledged that the grandparents are no longer speaking to one another and that he is also currently not speaking with defendant's parents.
Plaintiff claims that health concerns for Jessica, who has had a chronic cough every winter since she was born, and for Valerie, who suffers from "chronic cold weather induced asthma," have contributed to his desire to move to Florida. Plaintiff asserts that a warmer climate would be healthier for Jessica and would substantially help Valerie's condition.
A great deal of testimony was directed to the parties' respective parenting skills, their communication with one another, and descriptions of the alternative environments to which Jessica would be exposed. A recitation of this evidence is not essential except to point out that plaintiff claimed that when defendant has visitation with Jessica, she restricts Jessica from contacting him. Defendant claims she only prevented Jessica from calling plaintiff on one occasion and explained that she had just picked Jessica up and walked into the house when Jessica said that she wanted to call her dad. Defendant explained her reaction at the time: "We had just gotten [home] and I really hadn't seen her for a few days and I had some things planned, and I told her that she could call him later." Defendant described her reaction to Jessica's request as unusual, attributing it to the tension of the litigation, and claimed it would not happen again.
Defendant testified regarding plaintiff's lack of communication and cooperation in decisions pertaining to Jessica and her welfare. Defendant recalled difficult experiences with plaintiff in arranging visitation with Jessica, and described plaintiff as inflexible and unreasonable in regard to her visitation with Jessica. Defendant recalled that plaintiff had refused her past requests to spend time with Jessica even though Jessica was left alone with a baby-sitter. Plaintiff admitted that he had, on occasion, refused defendant's requests to have Jessica for an additional night.
Plaintiff further admitted that there have been instances when he should have consulted defendant but instead made decisions regarding Jessica's welfare on his own. Specifically, plaintiff acknowledged that in 1992, he should not have enrolled Jessica in a Jewish nursery school "without consulting Rosemary's opinion first[.]" Plaintiff acknowledged that Jessica's enrollment in this school affected defendant's visitation schedule because Jessica had to be at school at 8:30 a.m., meaning defendant lost the benefit of overnight visitation twice a month. Defendant was also upset that plaintiff had enrolled Jessica in a Jewish preschool because "the agreement that I had with him[, although not in writing,] was that I was to be responsible for her religious background." Plaintiff originally admitted that despite an agreement with defendant to raise Jessica in the Christian religion, he has brought Jessica up in the Jewish religion without consulting defendant. Plaintiff further acknowledged that he should have consulted defendant regarding Jessica's religious upbringing. Plaintiff, however, later denied bringing up Jessica in the Jewish faith, stating that she does not go to Hebrew school or temple.
Plaintiff also admitted that, contrary to his reply certification, he has taken Jessica "to several doctors without clearing it with Rosemary first[.]" Yet, plaintiff testified that defendant never requested that he notify her before taking Jessica to a doctor. Plaintiff also admitted that although he should have, he never discussed with defendant bringing Jessica to a Dr. Boozan, until afterward, nor did he discuss bringing Jessica to Dr. Rhoades, a therapist. Plaintiff testified that prior to taking Jessica to Dr. Rhoades, he sent defendant "a registered letter telling [defendant] where we were taking [Jessica], when we were taking her and offering [defendant] the ability to join in if she would like." Plaintiff stated that after sending the letter, defendant never contacted him, but instead called Dr. Rhoades. Defendant claims that she spoke with plaintiff two weeks prior to receiving this letter during which plaintiff never said anything about Jessica behaving abnormally, having nightmares, eating improperly, or having problems in school//--the alleged reasons plaintiff brought Jessica to Dr. Rhoades.
Plaintiff admitted that last year, he and Valerie met with the principal of Jessica's school, and decided that Jessica should repeat kindergarten. Defendant neither knew of nor had any input into this decision. Plaintiff claims he spoke with defendant about this issue previously and defendant said she would defer to Jessica's teacher's opinion. Despite her contentions, defendant testified that she had numerous phone conversations with Jessica's teachers regarding her development at school, and attended two parent/teacher conferences in each of the last two years. In addition, defendant stated that at one conference at the end of Jessica's first year in kindergarten, Jessica's teacher opined that Jessica ought to be held back. Defendant trusted the teacher's opinion and thought the matter was settled.
Defendant claimed that a further example of plaintiff's lack of communication occurred during December 1994 when both parties were visiting their respective parents in Florida, and defendant was exercising an extended visitation with Jessica. Defendant allowed plaintiff to have an unscheduled day of visitation with Jessica. According to plaintiff, when he picked up Jessica, she had a cough which seemed to get worse as the evening went, and plaintiff took Jessica to the hospital. While plaintiff admitted that he should have consulted defendant prior to bringing Jessica to the emergency room, he did not believe that he was obligated to notify defendant in emergency situations. During the four hours in the emergency room, plaintiff made no attempts to call defendant; he did not tell defendant until the following morning that Jessica had been taken to the hospital.
Defendant described her current residence as a "very large" apartment that is very comfortable. Defendant, her mother, and her sister all claim that the home is safe for children. Jessica has her own room, which she helped decorate, and, according to defendant, she appears very comfortable there. Defendant's mother testified that Dylan and defendant seemed very happy together. Dylan declared that he loves defendant very much and that they have a very happy and communicative relationship with one another.
Defendant's parents and Dylan testified that defendant and Jessica have a very good relationship and that defendant is very attentive. Defendant's sister noted that when Jessica's visits end, "she doesn't want to leave her mom." Defendant also stated that Jessica is very fond of Dylan, explaining that "he's very patient with her and they like to do a lot of things together." Defendant's sister, who has had the opportunity to observe Dylan with Jessica, had never seen him hit her or forcefully take anything away from her and had only seen him discipline her through a simple reprimand if she did something wrong. Defendant further maintained that Jessica and Savannah get along well.
Defendant testified that when Jessica is over, they visit members of her family. Defendant's sister has two children, and her brother has two children. On Dylan's side of the family there are several cousins. Dylan also has a younger brother of whom Jessica is very fond. In addition, defendant and Dylan have relatives close to Jessica's age with whom she enjoys playing. The majority of Dylan's family lives in New Jersey, and he and Savannah see them often.
When she does not have visitation with Jessica, defendant claims to have phone conversations with her almost daily. Defendant testified that these phone conversations are "a lot different" than when she actually sees Jessica because "at six years old she can't really carry on a long conversation over the phone. It's usually brief. . . . I ask her questions, but it's not the same as having her with me and sitting on my lap when we talk and we have quiet time together."
Plaintiff described his present marriage to Valerie as consisting of "a lot of mutual respect, trust." In her practice, Valerie works with separated and divorced parents, is involved in removal actions as an expert, and has been a court-appointed evaluator in domestic cases. Valerie is planning to move with plaintiff to Florida. She has applied for licensure in Florida and is going to seek a position in a group practice. Valerie, who has already "made some contacts," does not believe that she will have any problem securing a position. According to plaintiff, Valerie and Jessica "have a very healthy, loving relationship," consisting of "mutual respect."
Plaintiff acknowledged that if he is permitted to move, the present visitation schedule that defendant has with Jessica would have to change. In this regard, plaintiff proposed the following schedule:
Two weeks visitation in July, two weeks in August, a week at Christmas and Easter vacation with her mother according to the school calendar and two other -- two other trips sometimes during the year with her mother coming down to Florida.
Plaintiff opined that defendant's cost in visiting Jessica in Florida would be lessened since visitation could occur at defendant's mother's house. Nevertheless, plaintiff admitted defendant would incur a financial burden visiting Jessica. Thus, he proposed that defendant put the money she pays for child support towards the airfares and that he would pay a mutually agreed upon amount to supplement the costs. Plaintiff, however, admitted that he did not know what he would do if he did not have the money to pay for this travel expense. Yet, plaintiff acknowledged that he would be willing to negotiate defendant having additional visits with Jessica if she were in Florida on a non-visitation weekend. He further claimed that he would encourage and pay for telephone calls and other correspondence between defendant and Jessica.
Both defendant and Dylan regarded the proposed visitation schedule as not feasible. Defendant testified:
It wouldn't be the same going for so long without seeing her. I know that I could talk to her on the phone, but that just wouldn't be the same, as I had explained earlier, with -- you know, the telephone conversations just aren't the same as having her there and talking to me when we're together. I don't think that it would be as comfortable not seeing her for so long. . . . I wouldn't be able to attend the things at school that I've had the opportunity to attend in the past two years. I wouldn't be able to discuss her school work, her development in school, her friends. . . . During the holidays it would be hard if I was to leave my family or Dylan was to leave his family to go up here or she was to -- to go down there, rather -- or she was to come up here to see us. . . .
Jessica spends a lot of time with my family and with Dylan's family. We have a lot of children in our family that Jessica is very close to and we're very family oriented. All of our family lives in this area and she would be away from all [of] them for large periods of time too.
If I were to go to Florida, I would have some choices, but I don't think any of the choices would work. If I took Savannah to Florida with me, she'd be without her father. Dylan wouldn't be able to come to Florida with us that much because obviously he works and he doesn't get that much time off from work. It would also be very expensive, especially during the holiday times. . . .
Dylan stated he would be unable to accompany defendant to visit Jessica because of his employment responsibilities. Moreover, he stated that if defendant was to leave his household for one to three weeks at a time, he would be greatly affected. Dylan also explained that "Jessica's sibling, Savannah, would need child care during this time. Financially, we can't afford to send Savannah with Rosemary. If Savannah were to stay here, Savannah would be going without her mother during the times [Rosemary] spent with Jessica." Dylan further testified that if that were to happen he would need to get day care, which he cannot afford.
Defendant and Dylan seriously discussed moving to Florida. Defendant believes that her family would be unable to move there due to Dylan's inability to find a job which would offer him the same benefits he currently receives. Dylan, who is twenty-four years old, is currently employed as a superintendent at an apartment complex for which he earns $17,000 a year and receives free housing worth about $1,000 per month and health insurance. Dylan also works as a maintenance person at a health food store for which he is paid $150 a week and given a 20% food discount. Dylan does not have a written employment contract with either employer.
Although Dylan acknowledged Florida's cost of living is lower than New Jersey's, he also found Florida's salaries to be much lower after looking at newspaper ads provided by plaintiff and calling some of the numbers listed therein. Furthermore, according to Dylan, there seems to be unemployment problems in Florida, which makes him feel that such a move "would be a very high risk."
In addition, Dylan claimed he asked defendant's parents about the job opportunities in Florida, but admitted that he did not ask them for any newspapers or for any leads for employment agencies. Dylan did not make any calls after receiving a magazine listing apartment complexes and did not check Sarasota housing costs. Defendant claimed that she also had conversations with her family concerning the Florida job market and was informed the market was not good. Although defendant is currently unemployed, she was trained and has worked as a bartender, a waitress, and a customer service representative in a supermarket. She also went to travel and tourism school.
In February 1995, plaintiff moved before the trial court for an order (1) permitting him to permanently remove Jessica to Florida; (2) amending and modifying the Final Judgment of Divorce with regard to defendant's schedule of visitation with Jessica; and (3) restraining and enjoining defendant from speaking with Jessica about the removal process or in any way trying to manipulate the child to tell the court or any expert that she wants to remain with defendant. ...