August 8, 2008
ERIN MCDONALD-RYAN, PLAINTIFF-APPELLANT,
ROBERT RYAN, DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 4, 2008
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 following opinion, to a reasonable degree of psychological certainty:
. . . I felt that on a number of bases that it would be better for [plaintiff] to postpone her desire to move with the children to North Carolina. I felt that it would significantly compromise the relationship between the children and their father, whom they had a strong bond with and also were very adamant about not leaving, seeing him as not only their parent whom they wanted to continue to spend time with and have ready access to, but also experiencing him in the context of an extended family that really included some of [plaintiff]'s family as well as his own.
They also talked about the fact that it would be extremely difficult for them to leave their friends, their school and their cousins whom they spent a good deal of time with, much less the activities that they appear to enjoy on a fairly consistent basis.
It seemed to me that it would be more difficult for them to make the adjustment, all three, to a new school, a new environment, a new set of friends, and perhaps even a different way of life than what they had become accustomed to.
So I recommended that she reconsider her application and . . . I suggested . . . that she explore the possibility that Mr. Hull might consider moving up to this area, . . . reasoning that if she were to do so the children would have a win/win situation. They would be able to see their mom on a regular basis, continue to have a relationship with their father on a regular basis, and at least in terms of one of the children, a relationship that was sort of deepening as he became adolescent. And they would also be able to maintain their schools, their friends, their relationship with the extended family . . . . And it would also allow them to have a relationship with Mr. Hull, whom they like, without, if they move, seeing him in a more adversarial position.
So I felt the factors of their not moving outweighed the factors, and there were some, that would be advantages to moving.
Dr. Hagovsky stated his "impression" that the children "very strongly felt attached to their father; and, in fact, the [fifteen-year-old] indicated . . . that he had been wanting to spend more time with his father." The doctor noted further that "[e]verybody seemed to agree" that plaintiff and defendant had had "a very volatile and abusive relationship." However, "subsequent to the parties' separation . . . things quieted down a great deal[.]"
Dr. Hagovsky addressed the specific situation of the oldest child, who has learning disabilities:
I also looked at the schooling as a factor as well. [The child] has some learning disabilities. And not that school systems all don't address learning disabilities, but one takes into consideration the fact that some children, especially those with learning disabilities, may be more vulnerable than others to changes in their lives. Age is a factor as well. To move a kid at 15 with learning disabilities who doesn't want to go is probably not a real good idea in terms of that youngster's health, education and welfare. So I saw that as a contributing factor as well.
Dr. Hagovsky further addressed the option of Mr. Hull relocating to New Jersey:
I also looked at the comparative merit of whether [defendant] could move to North Carolina versus Mr. Hull moving to New Jersey. I learned in the course of the evaluation that Mr. Hull, in fact, came from [here] 20 years ago and moved to North Carolina. So he was familiar with this area and actually still had some family locally. I also learned that [defendant] has a very large company and has a number of employees that would be affected by his move to North Carolina, whereas Mr. Hull did have his own business but also worked for another business as well and seems to be able to have more flexibility in terms of mobility than [defendant]. So I considered that as a factor as well.
We turn to plaintiff's argument that the trial judge's decision was inconsistent with, or not supported by, the record. In considering this contention, we note that the scope of our review of a trial court's factual findings is limited. Such findings "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)(citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413.
Plaintiff's request to relocate to North Carolina with the children is governed by the test in Baures v. Lewis, 167 N.J. 91 (2001). The trial judge engaged in a thorough analysis of the so-called "Baures factors" in denying removal. Having reviewed the record, we conclude that the trial judge's analysis "is based on findings of fact which are adequately supported by evidence[.]" R. 2:11-3(e)(1)(A). We add only the following comments.
In Baures, the Supreme Court enumerated twelve factors a trial court should consider as "relevant" to the plaintiff's burden of proof "in assessing whether to order removal[.]" Id. at 116. Those factors are:
(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[ren] will receive educational, health and leisure opportunities at least equal to what is available here; (5) any special needs or talents of the child[ren] 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[ren]; (7) the likelihood that the custodial parent will continue to foster the child[ren]'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 [a] 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[ren]'s interest.
[Id. at 116-17.]
Regarding the first factor, the court noted that the "primary reason plaintiff offered for her relocation out of the state is her engagement to Mr. William Hull." The judge also noted plaintiff's assertion that "Mr. Hull ran his own business, thus, making it impossible for him to relocate." However, the judge found that [n]o mention was made of Mr. Hull having a primary job in a cabinet making company and that his "own business" was confined to about 25 hours per week done on nights and weekends. Mr. Hull's primary employment and source of income is his job with a cabinet making company where he makes over $40,000 a year. His side business produces about $15,000 a year in revenue.
The judge further noted plaintiff's testimony that the nursing positions available to her in New Jersey "were not as good as what she could do in North Carolina."
Regarding the second factor, the judge noted defendant's testimony that "no substitute plan of visitation could give him as full and complete a relationship with his boys as he has at this time. His testimony indicated that the boys preferred to stay in the state of New Jersey."
Regarding the third factor, the judge concluded that the parties' "past dealings . . . do not bear any clear indication of their future ability to cooperate whether together here in New Jersey or separated between here and North Carolina."
Regarding the fourth factor, the judge concluded that "[e]ducational opportunities must be looked at with a very careful eye." The judge noted that the fifteen-year-old son is in his second year of high school and that the "four high school years are critical in anyone's education and maturing process. [The child] has certain learning disabilities and is offered a good plan, catered to his needs, in the West Milford school district. By all accounts he seems to be doing quite well with his education." The court noted that plaintiff testified "in general terms" about the availability of "similar programs" in Hillsborough, North Carolina. However, the judge stated, "no further evidence was offered concerning this program which the court finds to be of key importance." Regarding the other two children, the court noted that the thirteen-year-old "is a very talented student receiving honors grades." The youngest child is "in first grade and starting the basis of his education."
Regarding the fifth factor, the court reiterated concern for the fifteen-year-old, whose learning disabilities are being well-addressed through the West Milford school district.
The court considered the sixth factor to be "key." The court noted:
In this matter, the court has heard testimony that the defendant, father spends time with his children in numerous recreational activities. He has regularly exercised all available visitation with his boys. From the indication of everyone, children included, they enjoy their time with their father and him with them and he has forged a close relationship that has aided in the development of each of the three boys.
So true with the mother. While the boys are experiencing some difficulties in understanding why their mother wants to take them out of the state, each of them without a doubt loves her and respects her. The introduction into their lives of the idea of removing them from their familiar surroundings in West Milford, New Jersey, and away from their father, has been causing some difficulties of late in their relationship with their mother.
The court had "some difficulty" with the seventh factor, noting that "plaintiff's testimony was filled with bitterness towards the defendant because of what she says she experienced during the marriage." The court further noted that "plaintiff has demonstrated at times a very inflexible attitude toward the children and their relationship with the defendant. . . . The court has some reservation about the ability of plaintiff to continue to foster a good relationship with the defendant given the concrete examples of her inflexible attitude towards that relationship."
Regarding the eighth factor, the court noted the "stark contrast in that which is available to the boys in New Jersey and in North Carolina[,]" in terms of their extended family. The court considered this "a significant factor when weighing the request to move."
Regarding the ninth factor, the court noted that the fifteen-year-old was "very thoughtful" during the in camera interview and told the court that "he definitely wanted to remain in the state of New Jersey near his father." The thirteen-year-old also stated that he wanted to remain in New Jersey, "as he has his friends and more importantly family, cousins, etc. that he would be deprived of should he move to North Carolina." The youngest child indicated his desire to stay in New Jersey with both parents.
Regarding the eleventh factor*fn1 , the court noted:
The defendant . . . is self-employed as a contractor/builder. He is a partner in the firm of Stearns & Ryan, L.L.C. This business started back in 1997 and has grown to now employ 11 people. All of Mr. Ryan's contacts and business are drawn from the northern New Jersey, Southern New York area. If Mr. Ryan were to locate to North Carolina, he would have to start all over again and lose the economic advantage he gives these children by having developed a successful business during the course of the last 10 years.
Regarding the twelfth factor, the judge noted:
It does bear mentioning that there was no serious refutation to the concept of Mr. Hull relocating back to New Jersey. Obviously, Mr. Hull can live where he wants.
However, the court cannot dismiss from its mind the fact that Mr. Hull has, as his main source of income and employment, a type of job that can be reproduced and pursued in New Jersey. While plaintiff's moving papers gave this court the notion that Mr. Hull was only self-employed and relocation was impossible for him, the testimony clearly showed that Mr. Hull's self-employment is a "side business" and not his main source of income.
The judge summarized that he considered the fourth, fifth and sixth factors to be "of significant importance." He emphasized that the "type of relationship that the defendant currently shares with his three boys cannot be maintained on a 'full or continuous' basis if the boys are in North Carolina."
Based on the foregoing, we concur with the trial judge's conclusion that plaintiff failed meet her burden under Baures.
The principal basis for plaintiff's relocation request was to live in North Carolina with Mr. Hull. As the judge noted, however, "there was no serious refutation to the concept of Mr. Hull relocating back to New Jersey." We find this to be a particularly significant observation, given plaintiff's proffered reason for wanting to move. That factor, weighed against defendant's ability to maintain his close and involved relationship with his children, properly led the judge to deny removal as "inimical to the child[ren]'s interests." Id. at 118.
We reject as without merit plaintiff's argument that defendant should not have been granted a plenary hearing due to his failure to propose an alternative visitation schedule. In support of this argument, plaintiff relies upon our decision in Barblock v. Barblock, 383 N.J. Super. 114 (App. Div.), certif. denied, 187 N.J. 81 (2006). In that case, a trial judge granted the custodial parent's removal request without holding a plenary hearing. We affirmed, noting that "the trial judge concluded that a plenary hearing was unnecessary because the defendant had failed to muster adequate reasons to forestall the plaintiff's [relocation out-of-state]. There was no 'genuine issue of fact . . . bearing upon a critical question' under the removal standards to warrant a full-blown trial." Id. at 124 (quoting Pfeiffer v. Ilson, 318 N.J. Super. 13, 14 (App. Div. 1999)).
Here the trial judge correctly decided to require a plenary hearing, and distinguished this case from Barblock in which no hearing was required because there was "ample proof to support the trial judge's determination that plaintiff's application substantively met the two prongs of Baures, and that no live testimony was required to confirm that showing." Barblock, supra, 383 N.J. Super. at 125. By contrast, plaintiff's ability to satisfy the Baures test in this case was very much disputed by defendant. It was defendant's position that no alternative visitation schedule could meaningfully replace his strong involved relationship with his sons. Therefore, "live testimony was required" to determine whether plaintiff could meet "the two prongs of Baures[.]" Ibid.
Finally, we address plaintiff's argument relating to the trial judge's interview of the parties' two older children. The gravamen of this argument appears to be the trial court's failure to ask the children questions submitted by counsel and/or to state on the record his reasons for not asking any questions thus submitted, pursuant to Rule 5:8-6.
However, plaintiff has not included her proposed questions for our review. Without that information, we are unable to assess the merits of this argument. In any event, having reviewed the transcript of the trial judge's interview with the two older children, we conclude that no "harmful error" occurred, as plaintiff contends. The children's responses to the judge's questions were consistent with those given to Dr. Hagovsky. This argument is "without sufficient merit to warrant discussion in a written opinion[.]" R. 2:11-3(e)(1)(E).