On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-644-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and LeWinn.
Plaintiff, Erin McDonald-Ryan, appeals from the October 12, 2006 order of the Family Part denying her request to relocate to North Carolina with the three minor children of the marriage. On appeal, plaintiff raises the following issues for our consideration:
THE FACTUAL FINDINGS AND LEGAL CONCLUSIONS OF THE TRIAL JUDGE ARE SO MANIFESTLY UNSUPPORTED BY OR INCONSISTENT WITH THE COMPETENT, RELEVANT AND REASONABLY CREDIBLE EVIDENCE AS TO OFFEND JUSTICE.
DEFENDANT'S REFUSAL TO PROPOSE AN ALTERNATE PROPOSED PARENTING TIME SCHEDULE SHOULD HAVE PRECLUDED HIM FROM BEING ALLOWED A HEARING ALTOGETHER.
THE TRIAL COURT'S DECISION TO INTERVIEW THE CHILDREN AFTER TRIAL COMBINED WITH ITS DECISION TO DISREGARD QUESTIONS PRESENTED BY PLAINTIFF'S COUNSEL CONSTITUTED AN ABUSE OF DISCRETION.
Having thoroughly reviewed the record, we affirm for the reasons set forth in the written opinion by Judge John E. Selzer in support of his order.
The parties were married on August 31, 1990, and have three children who were fifteen, thirteen and six years old at the time of the hearing. The parties were divorced on October 20, 2004. Pursuant to the Property Settlement Agreement (PSA) incorporated into their divorce judgment, the parties share joint legal custody of the children; plaintiff is the primary residential custodian, and defendant has parenting time on alternate weekends from Friday at 6:00 p.m. until Sunday at 6:00 p.m., Wednesdays from 5:00 p.m. until 8:00 p.m., and two weeks in the summer; the parties alternate holiday parenting time.
Following the divorce, while pursuing certification as a registered nurse, plaintiff renewed her relationship with her former high school sweetheart, William Hull. Although formerly a resident of New Jersey, as of the time of the hearing Mr. Hull resided in Hillsborough, North Carolina. He and plaintiff were engaged to be married. Mr. Hull is a W-2 employee of a cabinetry company; he operates a woodworking business on the side.
Plaintiff testified that she wished to relocate to North Carolina to marry Mr. Hull and to accept a nursing position at Duke University. Plaintiff stated that she had been offered a day shift position as a special surgical services nurse which had been her goal since entering nursing school; she testified that, due to her limited experience, the only employment positions she was offered in New Jersey were for night shifts.
Defendant, Robert Ryan, has maintained his parenting time schedule with his sons since the time of the divorce. As of the hearing, he was living with his paramour Christel Bettencourt. Defendant testified that he participates with the boys in numerous and varied recreational activities including fishing, dirt-bike riding, swimming, skiing, and woodworking; he also regularly attends their school and extracurricular activities.
Defendant is self employed as the owner and operator of a contracting business; he has eleven employees. His customers are primarily located in the northern New Jersey area, where defendant lives.
Defendant testified that he has had some problems with plaintiff in exercising his vacation parenting time with the children. Plaintiff would not allow him to take the children out of the country for trips to Canada or Mexico. Plaintiff also denied his request for two consecutive weeks of summer vacation in order to take the children to Florida one summer; the PSA provides for defendant to have two non-consecutive summer vacation weeks. Defendant was concerned that if plaintiff relocated to North Carolina, given the history, she would not foster his relationship with the children.
The children have extended family in the New Jersey area. Defendant has an uncle in New Jersey and a sister in Albany, New York. Plaintiff has three brothers and a sister, as well as her mother living in New Jersey. The children have eight cousins in the area. The boys have a close familial relationship with all of these relatives. In contrast, the children have no family relatives in North Carolina.
Dr. Mathias Hagovsky, a forensic psychologist, conducted a "best interests" evaluation on behalf of defendant. Based on his interviews of the parties, the children, Mr. Hull, and defendant's sister, as well as the psychological testing, Dr. Hagovsky offered the ...