Before Judges Newman, Braithwaite and Wells.
The opinion of the court was delivered by: Newman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 25, 2000
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County.
Plaintiff, Y. Yvonne Chen, appeals from an order denying her application to remove her two daughters from this State to Texas where plaintiff lives and works, and denying transfer of primary residential custody to her. We now reverse, allowing the removal and direct the transfer of primary residential custody to plaintiff.
On May 19, 1983, plaintiff and defendant, Howard Heller, were married in New Jersey. Two children were born of the marriage:
Katherine Anne Heller ("Katy"), born August 11, 1986, and Rebecca Lynn Heller ("Becky"), born February 8, 1990.
Both parties are electrical engineers and worked together during their marriage, first, at Singer-Kearfott (now GEC-Marconi) and, then, at Bell Labs (now Lucent Technologies). In 1991, plaintiff took a leave of absence from Bell Labs to pursue a teaching position at the college level. She obtained a tenure-track job as an assistant professor at the New Jersey Institute of Technology (NJIT) beginning in the Fall 1991 semester. In 1992, plaintiff resigned her position at Bell Labs, rather than extend her leave of absence.
In 1992, plaintiff informed defendant that she wanted a divorce. The parties initially worked out a shared parenting agreement on their own when plaintiff moved out of the martial home. Plaintiff and defendant maintained separate homes for the children and shared custody and parenting responsibilities after the parties separated. The parties met with a psychologist and agreed upon a joint custody arrangement, the terms of which were incorporated into a Property Settlement Agreement.
The parties were divorced pursuant to a Dual Final Judgment of Divorce filed on August 9, 1993. An amended judgment of divorce was filed on September 29, 1993, and incorporated the written Property Settlement Agreement (Agreement) entered into by the parties. The Agreement provided that the parties were to enjoy joint legal custody of the two minor children. Pursuant to the Agreement, the children were to be in defendant's care alternate weekends from Friday to Sunday, two evenings per week, for two weeks during their summer vacation, and such additional time as the parties agreed. The Agreement also provided:
"The parties agree that this schedule and corresponding support may change due to a change in employment or a home in residence. The parties agree they shall try to mediate these issues before returning to court in the event of a change."
After the parties' divorce, plaintiff continued teaching at NJIT. On or about May 4, 1994, plaintiff was given a one-year contract by NJIT for the 1994-1995 academic year, and she was informed that her contract would not be renewed for the academic year beginning in September 1995. According to defendant, plaintiff did not inform him that the 1994 academic year would be her last at NJIT or that she needed to find a job. According to plaintiff, she searched for an engineering or university teaching position, but was "unsuccessful in finding a comparable position between June of 1995 and December of 1995." Plaintiff did teach one night course at NJIT in the Spring of 1996, but she was informed that her teaching contract would not be renewed.
In early February 1996, plaintiff began discussing job opportunities with her brother who had started a "high-technology" company called Stream Technologies Incorporated ("STI") in Austin, Texas. In June 1996, plaintiff was presented with an employment contract from STI. The contract was predicated on plaintiff being physically present at STI in Texas. Apparently, plaintiff's attempt to work for STI by "tele-commuting" from New Jersey had been unsuccessful because "it was technically impossible for plaintiff to design and physically help build a machine from 1800 miles away."
By letter dated July 25, 1996, plaintiff informed defendant that she had accepted a job offer with STI in Austin, Texas, that she would be starting work on August 15, 1996, and that she would like the children to live with her, in Texas, during the school year. Upon receipt of plaintiff's letter on July 27, 1996, defendant telephoned plaintiff and informed her that he opposed her plan to relocate to Texas with the children. Defendant also sent plaintiff a letter, dated July 29, 1996, in which he expressed his feelings and concerns, and explicitly stated that he had not given plaintiff permission to remove the children from New Jersey and that she would need a court order to do so. On or about September 6, 1996, plaintiff filed an order to show cause, requesting that the court allow her to relocate to Texas with the minor children, permit her to immediately enroll the children in school in Texas, and restrain defendant from "assuming physical custody of the children during the time period when Plaintiff is compelled to return to Texas to tend to business matters[.]" On September 9, 1996, the trial judge entered an order scheduling oral argument for September 17, 1996, and reserving decision on the matter pending a hearing.
On or about September 13, 1996, defendant filed a cross-motion, opposing plaintiff's application and seeking relief.
Oral argument was heard by the trial judge on September 17, 1996. The judge questioned plaintiff's attorney as to why the parties had not participated in mediation in an attempt to resolve this dispute, as required by the terms of the Agreement. Counsel responded that, because "there is no middle ground that the parties have at least articulated to counsel[,]" mediation was not appropriate. Because defendant was not willing to waive the mediation clause, the trial judge ordered that the parties attend mediation and that mediation be completed by October 11, 1996.
The judge denied plaintiff's request for a psychological evaluation of the children, finding that there was no need for such at that time. The trial judge denied plaintiff's request to enroll the children in school in Austin, Texas. The judge also stated that, as of that moment, both parties were precluded from discussing any possible relocation or litigation with the children, and, if either party discussed the matter with the girls, the judge would impose sanctions. The trial judge granted defendant's request that, if plaintiff is out of New Jersey for more than twenty-four hours, defendant would have physical custody of the children during that time. The judge also granted defendant's request that plaintiff be restrained from removing the children from New Jersey without the written consent of defendant or order of the court. The trial judge denied the request that defendant's child support obligation be terminated. Finally, the judge scheduled a hearing on this matter. The judge memorialized his decision in an order filed on March 5, 1997.
A plenary trial was held at various dates over a protracted time period. Plaintiff testified as to her alleged inability to find employment in New Jersey prior to accepting her position at STI. Plaintiff testified that, in June 1995, she began receiving unemployment. Based on the recommendation of counselors at the Division of Unemployment Security, plaintiff enrolled in a computer training course in September 1995. After finishing the course in February 1996, plaintiff considered teaching part-time at NJIT and local community colleges. At that same time, plaintiff's brother had started STI and told plaintiff that, when his business picked up, perhaps she could work for him from New Jersey as a part-time consultant.
According to plaintiff, she did not mention anything to defendant about possibly moving out of state with the children because "it was never on [her] mind. [She] didn't even want to move to Texas ...." At that time, plaintiff was teaching one course at NJIT, but her contract was not renewed.
After visiting her brother in Austin in June 1996, and seeing STI, plaintiff decided that, although accepting the job in Texas with STI wold be a "major change," it would also be a "great opportunity." Plaintiff testified that her entire family is in Texas and that her parents intended to move to Austin from Houston if the children relocated to Texas in order to assist plaintiff with daycare and transporting the children. Plaintiff also testified that STI is located approximately fifteen minutes from her home in Austin, and she could maintain a very flexible schedule to be with the children. The house she purchased in Austin has four bedrooms, is in a good neighborhood, and the school system received the state's highest rating. The development plaintiff lives in has a community swimming pool, a tennis court, and a playground.
According to plaintiff, the computer industry is rapidly growing in Austin and STI is involved in designing smaller, faster computer chips. Plaintiff testified that she now has 25,000 shares of STI stock, giving her an ownership interest in the company.
When asked how she planned to encourage and facilitate the children's Jewish faith and education if they resided with her in Texas, plaintiff responded that she would drive them to Hebrew school and take them to synagogue. Plaintiff also stated that her parents have offered to help her in that regard. Plaintiff stated that if the children live with her in Texas, it is her intention to raise them in the Jewish faith.
Plaintiff stated that, in January 1997, while on the phone with Becky, she overheard defendant telling Katy that she was not to call plaintiff without his permission. Katy got on the phone and informed plaintiff that defendant told her that if she ever called plaintiff without his permission, first he would remove all the phones in the house except the one in his room, and then he would call the phone company and have plaintiff's number blocked from his line. Plaintiff testified that when the children are at her home in Texas they have "blanket permission" to call defendant whenever they want.
Plaintiff insisted that she did not move to Texas in order to inhibit or frustrate defendant's contact with the children. She testified that if the children lived with her in Texas, she considered it "very important" for them to have continuing contact with defendant. She felt that if the children lived with her during the school year, "they should spend vacation, school holidays with their father[,]" and defendant should come to Texas to visit them. According to plaintiff, both children have told her that they miss her and want to live with her in Texas.
Mary Ellen Woodstock, Katy and Becky's school guidance counselor, testified for plaintiff. According to Woodstock, Katy has made it "very clear" that she would like to be with her mother. Becky did not indicate to Woodstock that she wants to stay with her mother, and Woodstock did not ask her if that was the case.
In February 1997, Woodstock referred Katy and Becky to Brenda DiPietro, a psychotherapist, who testified at trial on behalf of defendant. She had met with Katy and Becky and observed them with defendant. According to DiPietro, the children were "[w]arm, engaging, ... comfortable, pleasant, ... [and] affectionate with [defendant.]" The trial judge discounted her testimony, however, finding that she "came into [the] courtroom with her own private agenda. She was not objective, but biased. She took offense at the fact that anyone would question either her qualifications or her conclusions. ... [The judge] found her not to be a very credible, reliable witness."
On May 22, 1997, plaintiff offered the testimony of Dr. Mathias Hagovsky, a psychologist. During the preliminary examination of Dr. Hagovsky, the trial judge revised his earlier position, finding that he had been mistaken in not ordering the parties to submit evaluations. The judge, sua sponte, permitted each party to have his or her own expert conduct an evaluation as to the issues of removal, custody, parenting time, and the best interests of the children.
Dr. Hagovsky testified again in June 1998, and his report was admitted into evidence. According to Dr. Hagovsky, plaintiff "appears more concerned about [defendant's] emotional well being than that of the children insofar as she is convinced that the girls would not suffer appreciably from a move. To her, then, this is a matter of how she can assure that the girls and their father will continue in their relationship once the transfer is made[.]" Dr. Hagovsky did not find anything to indicate that plaintiff's desire to relocate with the children was made in an effort to frustrate defendant's rights to parenting time or the children's right to have a relationship with their father.
According to Dr. Hagovsky, the children reacted very positively with their mother. The doctor found that "the children were very comfortable with their mom, that they invited each other's participation that they were responsive to each other and to [plaintiff], they were happy to be with [plaintiff], that [plaintiff] exerted a calm but controlling influence on the children in terms of their little occasional squabbles over ...