September 29, 2008
TODD DINSMORE, PLAINTIFF-APPELLANT, AND LOIS YATES, PLAINTIFF/INTERVENOR,
DARA DINSMORE (N/K/A DARA SHERMAN MURTAUGH), DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-1459-04-W.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 8, 2008
Before Judges Lisa and Sapp-Peterson.
Plaintiff, Todd Dinsmore, appeals from two aspects of the August 3, 2006 post-judgment order entered by Judge Lawrence Lerner, which (1) authorized defendant Dara Dinsmore to relocate to Texas with two of the parties' children, J.D. (age eight) and W.D. (age six),*fn1 and (2) denied plaintiff's motion to set aside the property settlement agreement (PSA) dated April 1, 2005 and incorporated in the divorce judgment of September 21, 2005. Plaintiff also appeals from denial of his reconsideration motion. Plaintiff argues that the trial judge failed to consider the factors relevant to the relocation issue, as prescribed by Baures v. Lewis, 167 N.J. 91, 116-17 (2001), and that proper consideration of those factors would have led to a conclusion that defendant failed to carry her burden of proving a good faith reason for moving to Texas and that the move would not be inimical to the interest of the children. Plaintiff further argues that he presented sufficient evidence to demonstrate the presence of exceptional circumstances warranting relief from the PSA (incorporated in the divorce judgment) pursuant to Rule 4:50-1(f). We reject plaintiff's arguments and affirm.
The PSA recognized that plaintiff was then hospitalized, thus making it inappropriate to resolve the issues of custody and parenting time at that time, and reserving those issues until further agreement of the parties or order of the court. The PSA further provided that defendant would not seek to relocate the children from southern New Jersey, barring exceptional circumstances, for at least two years. The judgment of divorce designated defendant as the parent of primary residence for all three children.
The parties entered into a lengthy and detailed consent order on November 1, 2005, which modified the custody arrangements. The parties continued to share joint legal custody of the children, but plaintiff was given residential custody of A.D., and defendant was given residential custody of J.D. and W.D. The PSA provision prohibiting defendant from moving out of the southern New Jersey area for at least two years was declared null and void. The Consent Order provided that "[e]ither parent may seek to relocate outside of the state of New Jersey with the child or children over whom residential custody is exercised as permitted by state law." The Consent Order set forth detailed arrangements in the event of relocation regarding parenting time, including a specific parenting time schedule covering holidays and school recesses.
Defendant had remarried. Her husband lived in New Jersey and worked in Pennsylvania as a computer network architect. He possessed a very specific skill set dealing with a particular computer program. He was advised by his employer that his job function would be outsourced and his position would be terminated. He engaged the services of a "headhunter" from the state of Wisconsin, who submitted a letter report stating that no east coast employers sought experience in the area of his skill set, and that there were no more than twenty open positions within the United States using that skill set. Most opportunities were in the midwest and the southwest. The headhunter was able to locate a position in Texas, which defendant's husband sought. These events occurred in the weeks and months leading up to the November 1, 2005 Consent Order, and they provided the basis for the Consent Order. Indeed, plaintiff and defendant's husband personally negotiated and drafted the terms of the Consent Order.
It is plain from the terms of the Consent Order that relocation was anticipated. Indeed, at the plenary hearing that was later held before Judge Lerner on August 3, 2006, defendant testified that in the discussions between her, her husband and plaintiff it was understood and agreed that she would be relocating with the two children to Texas because of her husband's new employment. The judge found that testimony credible. At about the same time, defendant's husband physically moved to Texas and purchased a home in January 2006, beginning his new employment.
Defendant remained in New Jersey with the two children until she could obtain court approval to move them to Texas. She filed a pro se motion seeking, among other things, permission to relocate to Texas with the two children. The matter came before Judge Marie E. Lihotz, who issued a comprehensive order on March 31, 2006, which recited that "[d]efendant presented her husband's new employment as her good faith reason to relocate. Her husband testifies in his affidavit that he had detailed discussions with plaintiff as evidenced by the depth of development of the issues laid out in the parties' November 1, 2005 consent order." The order stated that the court found that defendant's reason for relocation was supported by a good faith basis and authorized her to temporarily take the two children to Texas without prejudice, subject to the continuing jurisdiction of the New Jersey Superior Court, with the ultimate determination reserved pending a plenary hearing. The order scheduled the plenary hearing to be held between July 31 and August 4, 2006.
On August 3, 2006, the reserved plenary hearing was held. Other motions were filed, including plaintiff's motion to vacate the PSA pursuant to Rule 4:50-1(f). By that time, Judge Lihotz had been assigned to the Appellate Division, as a result of which the plenary hearing was conducted by Judge Lerner, who was on retired recall status, who was not from Burlington County, and who was apparently called in to hear this matter on short notice.
On appeal, plaintiff criticizes Judge Lerner, contending that "he had not read any of the pleadings or any orders and documents pertinent to that hearing." (emphasis added). That is not so. At the commencement of the hearing, Judge Lerner introduced himself to the parties (both of whom were pro se), explained why he was handling the matter, and candidly acknowledged that he had "not had time to review [eve]ry single thing you've submitted" and that, based on his twenty-three years experience in hearing family law matters, he deemed it appropriate to commence the hearing and, if necessary, read any additional documents in the course of the hearing. We have read the entire transcript, consuming 161 pages, and it is evident that Judge Lerner had read various portions of the pertinent documents in advance of the hearing. And, as the hearing progressed and the parties pointed out to him certain other materials, he took the time to read them and adequately analyzed and considered them.
At a relocation hearing, the moving party has the burden of going forward with evidence sufficient to establish a prima facie case of a good faith reason for the move and that the move will not be inimical to the children's interest, and shall contain a visitation proposal. Baures, supra, 167 N.J. at 118. "The initial burden of the moving party is not a particularly onerous one." Ibid. Upon establishment of a prima facie case, the burden of going forward falls upon the opponent, "who must produce evidence opposing the move as either not in good faith or inimical to the children's interest." Id. at 119. At all times, the burden of proof remains on the moving party. Id. at 118.
Judge Lerner allowed both parties to fully present evidence regarding the reason for defendant's move to Texas, and the effects it would have on the children and the parties. He found credible defendant's contention that the move was necessary to accommodate her husband's employment, particularly because her husband was the sole wage earner in the household. He credited the report of the headhunter as to the extreme limitations on the availability of a suitable employment opportunity for defendant's husband. He discredited plaintiff's unsupported contention that defendant's husband, at defendant's urging and instigation, quit his job and agreed with defendant to move to a distant location as part of a plot to alienate plaintiff from his children. He also discredited plaintiff's contention that plaintiff's internet search revealed multiple employment opportunities in and near New Jersey that could have accommodated the skill set of defendant's husband. He also found it unbelievable that defendant's husband would leave the southern New Jersey area, where his three children from a prior marriage, his parents, and other extended family members lived unless his employment required such a move. Defendant testified that her husband had a close relationship with his children and actively participated in their activities. Therefore, the judge found that the proffered reason for the relocation was a good faith reason and not a pretext.
The judge also considered those of the twelve Baures factors that are applicable in these circumstances. He recognized plaintiff's argument that separating siblings is inherently detrimental to the children, and he recognized that because of plaintiff's employment by the State of New Jersey it was not feasible for plaintiff to relocate to Texas to be near the children after defendant's move. However, those factors were outweighed by other applicable factors. Based upon defendant's testimony, which the judge found credible, educational opportunities were comparable in Texas; the children had an abundance of playmates and were well adjusted in the time they had spent there to date; one of the children had a speech impediment and was receiving the services of a qualified speech therapist in Texas, deemed by defendant to be comparable to the similar services that had been obtained in New Jersey; and, very importantly, a visitation schedule had already been worked out as memorialized in the November 1, 2005 Consent Order. Indeed, in the months preceding the plenary hearing, defendant brought J.D. and W.D. to New Jersey to spend about two weeks with their father in early June and again for the entire month of July, as provided for in the Consent Order. Thus, the judge considered the effect of the move on the immediate family. He also considered the effect on extended family relationships. On balance, the judge found that the move would not be inimical to the children's interest.
We will defer to the trial judge's factual findings "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). We will not interfere with those findings unless they are "so wholly insupportable as to result in a denial of justice." Rova Farms, supra, 65 N.J. 483-84. Deference to the trial judge's factual findings is appropriate in light of his or her superior perspective from having the opportunity to observe the witnesses as they testify. Cesare, supra, 154 N.J. at 412. This deferential approach is especially warranted in Family Part cases, because of the judge's "special jurisdiction and expertise in family matters." Id. at 413.
We are satisfied from our careful review of the record that Judge Lerner properly considered and applied the burden of proof and factors relevant to both prongs (good faith for the move and that the move would not be inimical to the children's interest) as prescribed by Baures, and that the record amply supports his findings.
With respect to plaintiff's motion to vacate the PSA, we note, as did Judge Lerner, that both parties were represented in the negotiations and execution of the PSA and at the time of the divorce. Indeed, plaintiff was represented by a highly experienced and respected family law practitioner who is a member of a prominent law firm. The PSA recites that the parties entered into the agreement with the advice of separate counsel and did so knowingly and voluntarily. Further, at the time of the divorce hearing, both parties acknowledged to Judge Lihotz that they entered into the agreement knowingly and voluntarily, and the judgment of divorce so states.
At the August 3, 2006 plenary hearing, plaintiff acknowledged that he agreed to all of the terms in the PSA voluntarily and received the benefits of all of those terms. However, defendant stated that part of his motivation for doing so was because he wanted to be admitted into the Pre-Trial Intervention (PTI) program with respect to charges arising out of his indictment for burglarizing defendant's house, and he wanted defendant to indicate to the prosecutor her consent to his PTI admission. Judge Lerner found that circumstance inadequate to support an allegation of duress and insufficient to constitute the exceptional circumstances required for relief under Rule 4:50-1(f). Accordingly, he found no basis for granting relief from the PSA. We find no mistaken exercise of discretion in that determination.