July 10, 2008
SRIDEVI KANDULA, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
VENKATA RANGA RAO BAIREDDY, DEFENDANT-RESPONDENT/CROSS-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2048-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 10, 2008
Before Judges Lintner and Parrillo.
Plaintiff Sridevi Kandula appeals from an order of the Family Part denying her motion to remove her minor children to New Mexico and awarding primary residential custody of the children to defendant Venkata Ranga Rao Baireddy. For the following reasons, we affirm.
The facts are generally not disputed. Plaintiff and defendant married in India on January 3, 1997, moved to the United States in 1997, and subsequently divorced on October 17, 2006. They have two sons, S.B., age nine, born September 18, 1998, and A.B., age four, born April 12, 2003. Plaintiff, a medical doctor, obtained her medical degree in 1992 and completed her Indian medical residency in 1996 in Pondicherry, India, but has yet to complete her three-year medical residency program in the United States to obtain her medical license here. Defendant, a highly-specialized computer programmer, obtained his master's degree in computer science and is employed as a software architect at Alcatel Lucent in Matawan.
The parties successfully negotiated a property settlement agreement (PSA) that was incorporated into their October 17, 2006 final judgment of divorce. The PSA provides for joint legal custody and 40% parenting time for defendant, who was to have the children for five overnights in every two-week period, plus alternate weekends from Friday afternoon until Monday morning and one weeknight overnight each week. The parties also agreed to consult on all major issues concerning the children; be involved in the children's medical care and education; and confer and agree in the selection of the children's child care and activities. According to defendant, this shared parenting arrangement was a compromise that formed the basis for defendant's agreement to grant primary caretaker status to plaintiff, and was entered into while plaintiff was then employed on a part-time basis as a research assistant and was available to spend more time with the children.*fn1
Prior to executing the PSA, and unbeknownst to defendant, plaintiff began the application process for medical residency programs in September 2006. She applied to thirty-six residency programs, including twenty-nine programs in New York and New Jersey. By mid-March 2007, plaintiff obtained her only acceptance -- a medical residency program at Eastern New Mexico Medical Center in Roswell, New Mexico. This program requires her to relocate for one year to Albuquerque, and then, starting in June 2008, to Roswell, for the following two years. It also involves a demanding schedule, including 24-hour on-call shifts and 80-hour average work weeks, that include days when she cannot care for the children. Moreover, plaintiff's residency rotation schedule changes on a monthly basis. To assist in child care, plaintiff proposed having her parents, residents of India, alternate coming to the United States and also hiring a nanny, although her parents are unable to drive in the United States. Plaintiff does have the opportunity to reapply to New Jersey programs after completing one year of residency.
Defendant did not learn of plaintiff's plans until late March 2007, well after the PSA was executed. Although he inquired of his employer about the possibility of working from New Mexico, this was not a viable option. Thus, on May 11, 2007, seven months after their divorce, plaintiff moved in the Family Part for permission to relocate the children to New Mexico. Defendant opposed this relief and cross-moved for designation as the children's primary residential parent during the school year, and allowing the minor children visitation with plaintiff in the summer and holiday breaks.
On July 19, 2007, following unsuccessful mediation and oral argument, the motion judge determined that plaintiff satisfied her prima facie burden of demonstrating a good faith reason for the relocation, and therefore scheduled a plenary hearing on the removal issue. The judge further ordered the children to remain with defendant in New Jersey pending resolution of the issue. Consequently, when plaintiff departed for New Mexico on August 7, 2007, S.B. and A.B. came to reside with defendant in Matawan and S.B. enrolled in the public school. The younger son, A.B., who had not yet started pre-school in Matawan, adjusted well to the new arrangement, and the older son, S.B., eventually acclimated himself to his new environment. Fortunately, since defendant worked mostly from home, he was often able to drop off and pick up S.B. at school. Along with routine telephone access, defendant agreed to allow the children to visit plaintiff in New Mexico during their school breaks and in the summer.
Following the plenary hearing on September 21, 2007 and an in camera interview with S.B., the judge, applying the twelve-factor test in Baures v. Lewis, 167 N.J. 91, 118 (2001), denied plaintiff's relocation application and awarded defendant primary residential custody of the children during the school year, with visits to plaintiff during the school breaks and summer. Specifically, as a result of its in camera interview, the court found that S.B. was "very comfortable . . . staying with his father"; was "very acclimated to his [new] school" in Matawan; was "fully aware that his mother [was] away for work purposes"; and seemed comfortable keeping in touch with plaintiff on the web cam. Moreover, the parties had agreed to keep the boys together. After weighing the applicable Baures factors, the court concluded that "it would be inimical for the children to relocate to New Mexico" during plaintiff's residency. Specifically, the court reasoned in part:
In addition, the defendant testified that the children and the plaintiff would be relocating again in September of 2008 200 miles away to Roswell, which would require him to have to relocate as well.
Twelve is any other factor bearing on the child's interests. The particular factor the Court noted was the availability of each parent to the child. And that's important to this Court because the defendant has now became an at-home father, and the mother now has a very high-pressure full-time job; whereas, before she had only been working part-time and now she's working many more than the standard hours that even a full-time person would work.
She testifies that her father will come to India -- her father or her mother will come from India, and I guess actually they alternate, to stay with the boys. But they don't drive, and this Court finds that the children would be isolated in moving to Albuquerque and then to Roswell, New Mexico. They wouldn't be able to attend after school activities, sporting events, things that would be after school since there would not be anyone to drive them.
In weighing all of the above factors, the Court finds the defendant has produced sufficient evidence that the move to New Mexico at the current time would be inimical to the children, specifically to [S.B.].
On appeal, plaintiff principally argues that the judge erred by applying the wrong legal standard -- the best interests standard -- in denying plaintiff's motion to relocate the children to New Mexico. We disagree.
We note at the outset that in reviewing the judge's application of this Baures factor, an appellate court "should uphold the factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quotation and quotation marks omitted). Even "where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts" and their implications, and thus "the traditional scope of review is expanded," we will nonetheless accord deference to the trial court's findings unless they "went so wide of the mark that a mistake must have been made." Ibid. (internal quotations and citations omitted). That deference is especially appropriate "when the evidence is largely testimonial and involves questions of credibility." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quotation omitted).
Turning to the issue of removal, "the party seeking to move . . . should initially produce evidence to establish prima facie that (1) there is a good faith reason for the move and (2) that the move will not be inimical to the child's interests." Baures, supra, 167 N.J. at 118. It should be noted that "[t]he initial burden of the moving party is not a particularly onerous one." Ibid. "Once that prima facie case has been adduced, however, the burden of going forward devolves upon the non-custodial parent who must produce evidence opposing the move as either not in good faith or inimical to the child's interest." Id. at 119. Nevertheless, the overall burden of demonstrating good faith and that the move will not be inimical to the child remains on the movant.
In determining whether to order removal, the court considers twelve factors:
(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; (12) any other factor bearing on the child's interest. [Id. at 116-17.]
Nevertheless, "'not all [Baures] factors will be relevant and of equal weight in every case.'" MacKinnon v. MacKinnon, 191 N.J. 240, 252 (2007) (alteration in original) (quoting Baures, supra, 167 N.J. at 117). "The first and third Baures factors bear directly on whether the custodial parent is acting on a good-faith basis for the relocation as opposed to a desire to thwart visitation." Id. at 254. "The second, sixth, seventh, and eleventh factors address the removal's impact on the non-custodial parent's rights." Ibid. Moreover, "the sixth factor . . . is particularly important when considering a child's removal to a distant place." Ibid. Finally, "[t]he fourth, fifth, eighth, ninth, and tenth factors consider potential harm to the child." Id. at 256.
As the Court noted,
[t]he removal standard in New Jersey "accords particular respect to the custodial parent's right to seek happiness and fulfillment," guarantees "regular communication and contact [between the non-custodial parent and the child] of a nature and quality to sustain that relationship," and "incorporates a variation on a best interests analysis by requiring proof that the child will not suffer from the move." [Id. at 257 (alteration in original) (quoting Baures, supra, 167 N.J. at 97).]
Thus, the Baures "standard addresses the rights of the custodial and non-custodial parent and the best interests of the child." Id. at 252 (emphasis added).
Here, we are satisfied that the court employed the correct legal standard and that its finding of inimicality is supported by sufficient credible evidence in the record. We, therefore, affirm substantially for the reasons stated by the Family Part judge in her thorough and well-reasoned oral opinion of October 10, 2007. Suffice it to say, the preponderant proofs demonstrate that relocation would deprive the children of: (1) educational, leisure, cultural (Indian) and religious (Hindu) opportunities offered in New Jersey that plaintiff had not established were comparable in New Mexico; (2) adequate parental care and attention in light of the demanding requirements of plaintiff's residency program; and (3) stability in that the children would have to relocate yet again after only one year in Albuquerque. Moreover, plaintiff can be assured of frequent communication through telephone, internet and web cam, as well as parenting time during school breaks and throughout the summer. Lastly, plaintiff will have the opportunity to reapply to area residency programs following completion of her first-year residency in New Mexico.
In his responding brief, defendant argues the court erred in denying his request for counsel fees pursuant to Rule 4:42-9 and Rule 5:3-5(c). We are satisfied that there is no basis for such a request since as found by the motion judge, plaintiff acted entirely in good faith. Kingsdorf v. Kingsdorf, 351 N.J. Super. 144, 158 (App. Div. 2002).