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Specian v. Specian


June 29, 2007


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, FM-18-984-05.

Per curiam.


Submitted April 18, 2007

Before Judges Lefelt and Sapp-Peterson.

In this post-judgment matrimonial matter, plaintiff Joanne Specian appeals from the entry of a post-judgment order denying her application to remove and relocate the parties' minor children from New Jersey to the Lehigh Valley area of Pennsylvania and also denying her application to sell the marital residence. We affirm.

The parties were married on January 1, 1980. Five children ranging in age from twenty-three to fifteen were born to the couple. All the children resided with plaintiff at the time of the divorce. When the parties separated, defendant moved to his parents' home located adjacent to the marital home. The backyards of the two homes faced each other. The separation was not amicable, as defendant was involved in an extramarital affair that plaintiff discovered prior to the separation. Plaintiff was unsuccessful in her efforts at reconciliation. Although prior to the separation, defendant enjoyed a close relationship with all of his children, plaintiff told the older children about the extramarital affair, which affected their relationship with defendant.

Custody of the unemancipated children was contested during the trial, and a custody evaluation was conducted by Marcy Pasternak, Ph.D. Plaintiff discussed with Dr. Pasternak her plans to relocate to Pennsylvania for a myriad of reasons, including the difficulty she and the children were having with defendant living so close to the marital home, her opinion that Pennsylvania would not be as costly, and that the school system would be better than the Bound Brook school district. At trial, however, plaintiff withdrew her request to relocate.

Ultimately, the parties stipulated and agreed to share joint legal custody of the minor children with shared parenting time:

j. The parties shall have joint legal custody of the children with shared parenting time. By way of parenting time schedule:

i. On a rotating weeks basis, in week I, defendant shall have [the three younger children] from Thursday at 6:00 p.m[.] through Monday at the start of school or the time school would start if it was in session; plaintiff shall have the children the rest of the time. In week II, defendant shall have the children from Sunday at 6:00 p[.]m[.] to Monday at 9:30 p[.]m[.]

ii. The parties shall alternate and rotate the following holidays: Presidents Day, Easter, Memorial Day, July 4th, Labor Day, Columbus Day. They shall start with plaintiff having Labor Day 2005.

iii. Plaintiff shall have the children every Christmas Day from midnight to Dec. 26th at 6:00 p.m. Defendant shall have the children every December 24th from morning until midnight; he shall also have them every December 26th from 6:00 p.m., until December 31st at 6:00 p.m. Plaintiff shall then have the children on New Year's Eve and Day, and then the regular schedule shall resume.

The Final Judgment of Divorce (FJD) was entered on January 9, 2006. Less than six months later, plaintiff filed a motion seeking to sell the marital home and requesting permission to remove the unemancipated children to the Lehigh Valley area of Pennsylvania.

In support of the application, plaintiff alleged that the Pennsylvania school system was superior to the Bound Brook school district. Defendant cross-moved for an order restraining plaintiff from relocating outside of New Jersey and seeking a transfer of residential custody in the event plaintiff relocated to Pennsylvania. Defendant argued that the issue was more than one of removal, but was instead plaintiff's attempt to change the shared custody arrangement.

The trial court denied plaintiff's motion, concluding that plaintiff had failed to satisfy the court that removal of the children to Pennsylvania was in the best interests of the children and that plaintiff had also failed to establish sufficient reasons to modify the joint custodial arrangement between the parties.

Additionally, the court concluded that plaintiff's application to sell the marital home was unfair to defendant in that it made as much sense for plaintiff to move out of the marital home and for defendant to move in as any other arrangement. As such, the court concluded that plaintiff had failed to demonstrate a change in circumstances that warranted a court-ordered early sale of the house.

On appeal, plaintiff argues that the trial judge failed to give full consideration to the removal factors the Supreme Court articulated in Baures v. Lewis, 167 N.J. 91 (2001). Rather, plaintiff contends the court improperly imputed its own factors into the consideration, despite the good faith reasons, albeit primarily financial, advanced by plaintiff to justify the removal.

New Jersey's removal statute 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.

[N.J.S.A. 9:2-2.]

In Baures, supra, upon which plaintiff relies, the Court established the "template for a removal case." Id. at 115. The Court stated that in determining whether to order removal, the judge should determine whether the party seeking removal has proven good faith and whether the move would be inimical to the children's best interest. Id. at 116. The Court delineated the factors the court must consider in order to resolve that question:

(1) the reasons given for the move; (2) the reasons given for the opposition; (3) the past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move; (4) whether the child will receive educational, health and leisure opportunities at least equal to what is available here; (5) any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location; (6) whether a visitation and communication schedule can be developed that will allow the non-custodial parent to maintain a full and continuous relationship with the child; (7) the likelihood that the custodial parent will continue to foster the child's relationship with the non-custodial parent if the move is allowed; (8) the effect of the move on extended family relationships here and in the new location; (9) if the child is of age, his or her preference; (10) whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent; (11) whether the non-custodial parent has the ability to relocate; and (12) any other factor bearing on the child's interest.

[Id. at 116-17.]

The Baures Court recognized that in an initial custody determination, the inquiry is the best interests of the minor children, but in a removal case, the interests of the parents become essential to a determination of whether removal is appropriate and requires consideration of the parents' "needs and desires" as they relate to the child's interests. Id. at 115. "The critical path to a removal disposition therefore is not necessarily the one that satisfies one parent or even splits the difference between the parents, but the one that will not cause detriment to the child." Id. at 116. Therefore, the Court required the parent seeking removal to bear the initial burden of establishing a prima facie case that the proposed removal was for a good faith reason and that the move will not be inimical to the child's interests. Id. at 118.

The Baures Court, however, recognized that this analysis does not apply in those removal cases involving a truly shared parenting arrangement. Id. at 116. In such cases, the removal application effectively constitutes a change in custody application, in which case the standard for granting or denying such an application will be governed initially by a changed circumstances inquiry and ultimately by a simple best interests analysis. Ibid. (citing Chen v. Heller, 334 N.J. Super. 361, 381-82 (App. Div. 2000)). Thus, the Baures Court acknowledged that a true shared parenting arrangement is an exception to its removal template. See id. at 116.

Here, there is no dispute that the parties, by stipulation, incorporated into the FJD a shared parenting agreement. However, less than six months after the final judgment was entered, plaintiff filed a motion to remove the minor children from New Jersey, effectively reviving an issue that she had expressly withdrawn at the time of trial. Based upon the parties' submissions and oral argument, the court found that despite plaintiff's good faith reason for the removal, she failed to set forth any facts that warranted a change in shared custody or that removal was in the children's best interests, and she also failed to demonstrate a change in circumstances sufficient to warrant the early sale of the former marital home. In the statement of reasons incorporated in the judge's order, Judge Bartlett stated,

1. PLAINTIFF'S REQUEST to provide that the former marital home will be immediately listed for sale with John Lewis and Maria Lewis of ERA Van Sycket, Weaver & Lyte is DENIED, unless the parties so agree.

Reasons: The Plaintiff asked at trial to stay. If she wants to sell now, she needs to make a rational proposal to the Defendant. It makes as much sense for him to move in and her to move out as any other arrangement. The Plaintiff has not demonstrated a change in circumstances that warrants a court-ordered early sale of the house.

In accordance with the removal framework established by the Supreme Court in Cooper v. Cooper, 99 N.J. 42 (1984) and Holder v. Polanski, 111 N.J. 344 (1988) where parties share joint legal and physical custody of their child and one parent seeks to remove the child from the state, it is not enough for the party seeking to remove the child to establish a good faith reason for the move. Voit v. Voit, 317 N.J. Super. 103 (Ch. Div. 1988). In Voit the court held that although the father's out-of-state employment opportunities were a good faith reason for relocation, the father's personal ambitions provided insufficient reason to modify the joint custodial arrangement. Id.

The Plaintiff states that she would like to relocate to Pennsylvania, as the taxes are lower, her brother and his wife reside in the Lehigh Valley area and it is only approximately 45 minutes away. In this instance, however, the parties have shared custody. Moreover, [one of the children] appears to be suffering from depression which may stem from the parties' divorce and it was determined that shared custody would be in all the children's best interests. Further, the Plaintiff continues to indulge in self-pity and is still not willing to communicate with the Defendant without going through the children or through attorneys. Currently, the Defendant resides immediately behind the Plaintiff with his parents (the children's grandparents), is able to freely spend time with the fourteen-year-old twins, and seeks to repair and rebuild his relationship with the other children of the marriage. His presence in their lives is frequent, regular, positive and clearly in their best interests. The court finds that, despite the Plaintiff's assertions that the Bethlehem School District's schools are better rated, the data provided by the Defendant proves otherwise. The court also notes that the Plaintiff's comparisons are like comparing apples to oranges in that she provided statistical information about Bound Brooks' graduation rate, drop out rate, teacher to student [ratio], etc. and then provided information about Bethlehem Township[']s students' average ratings for reading, math and writing (scaled at below basic, basic, proficient, advanced and proficient & advanced). The Defendant demonstrates that there are no significant differences between the schools when it comes to college attendance and graduation rates. Further, the Plaintiff does not have employment in Pennsylvania and would have to commute to New Jersey to work. The report card for [one child] demonstrates that he is struggling tremendously with his classes and is [in] need of additional tutoring, something that the Defendant is willing to provide. It is also relevant to note that at the time of trial, the Plaintiff withdrew her application to remove the children from New Jersey. The court finds that, while the Plaintiff demonstrated a prima facie case for removal, she has not satisfied the court that it is in the children's best interests to move to Pennsylvania. As in Voit, the Plaintiff's personal ambitions, or in this case, her desire to move the children further into her own sphere of influence, provide insufficient reason to modify the joint custodial arrangement between the parties. The court finds that Dr. Pasternak has already provided the court with an expert opinion that the children need a shared custody arrangement and the court finds that the children also need consistency in this time of turmoil. Thus, there is nothing in the Plaintiff's certification that indicates that the parties' shared custody arrangement should be modified or that a move would be in the children's best interests.

The scope of appellate review of a trial court's fact- finding function is limited; the factual findings of the trial court are binding on appeal when supported by adequate, substantial, credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Here, the trial judge carefully analyzed plaintiff's application as one seeking a change of custody and considered that the best interests of the children militated against removal. We are satisfied the factual findings of the judge are fully supported by substantial, credible evidence contained in the record.

Next, defendant's opposing certification did not object to the sale of the marital home. His agreement to sell, however, was conditioned upon plaintiff not leaving the area. The order entered did not preclude the sale but conditioned an early sale upon defendant's agreement. Given the shared parenting arrangement, we discern no abuse of discretion in the court conditioning the early sale of the residence upon defendant's approval. Levine v. Bacon, 152 N.J. 436, 442 (1998). Based upon our careful review of the record in the light of the oral and written arguments advanced by the parties, we affirm substantially for the reasons articulated by Judge Bartlett in her comprehensive Statement of Reasons explaining the July 28, 2006 order.



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