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Guzman v. Arce

February 20, 2009

VERONICA GUZMAN, PLAINTIFF-APPELLANT,
v.
AGUSTIN ARCE, JR., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-223-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: January 22, 2009

Before Judges C.L. Miniman and Baxter.

Plaintiff Veronica Guzman appeals from portions of an order entered on February 6, 2008, granting defendant Agustin Arce, Jr., extensive parenting time, requiring plaintiff to pay fifty percent of visitation travel expenses, granting defendant's relatives liberal visitation in Florida, and suspending child support payments during extended periods of parenting time. Defendant did not oppose this appeal. We reverse the award of liberal visitation to defendant's relatives in Florida and vacate and remand the award of parenting time and travel expenses for reconsideration in accordance with this opinion.

Defendant is the thirty-one-year-old father of plaintiff's two children, a son born on December 9, 2004, and a daughter born on January 30, 2006. Plaintiff was born on February 7, 1987, and was seventeen years old when her son was born. The parties were not married. Although they had a relationship for three-and-a-half years, which began when plaintiff was sixteen, they cohabited for only four months. The rest of the time, plaintiff resided with her parents or her older sister. Defendant psychologically abused plaintiff and, as their relationship progressed, the abuse became physical. They separated for the last time in early June 2007.

On July 30, 2007, plaintiff obtained a temporary restraining order after defendant committed acts of assault and criminal mischief against her. A final restraining order (FRO) was entered on August 14, 2007. Plaintiff was awarded temporary custody of the children and defendant was granted parenting time from 9:00 a.m. to 9:30 p.m. on Mondays and Tuesdays. The paternal grandparents were to transport the children for defendant's parenting time. Defendant was required to pay $76 per week for child support.

One week after the FRO was entered, defendant sought overnight parenting time on Mondays, which plaintiff opposed on the grounds of inadequate housing, defendant's failure to undergo the mental-health and substance-abuse evaluations, and his failure to pay any child support. She also informed the court that, between August 14 and October 10, defendant had only availed himself of parenting time on one occasion. On October 24, 2007, the Family Part judge amended the FRO to require the parties to exchange the children at the Highland Park Police Department as defendant's parents were unable to provide transportation to and from plaintiff's home. A decision on overnight parenting time was deferred pending an evaluation of the children's best interests by the Probation Department.

Also on October 24, 2007, plaintiff filed a motion pursuant to N.J.S.A. 9:2-2 seeking leave to relocate to Jacksonville, Florida, with her parents and sister. Her father had secured employment in Florida and had already relocated, but her mother remained with plaintiff in order to help plaintiff by taking the children to a babysitter when plaintiff worked eleven-hour shifts and to watch the children when plaintiff had appointments. Plaintiff had discussed this upcoming transfer with defendant before they separated in June.

Plaintiff was employed by Ashley Furniture earning $2000 per month and would be able to work at an Ashley Furniture store in the Jacksonville area where there were job openings. However, plaintiff preferred to find a night job so that she could be home with the children when her mother was at work and her parents could watch the children when she was at work, thus saving the expense of childcare. She explained that she could not afford to have a home of her own and pay for childcare on her limited income because independent living expenses would exceed $3000 per month. As a result, she wanted to continue living with her parents to minimize housing expenses and eliminate childcare. She stated that defendant had made only one child-support payment and was $457 in arrears, which had risen to $913 at the time of the hearing; thus, she could not count on defendant for consistent support for the children.

Plaintiff proposed that defendant have parenting time for one week during Christmas, one week during the spring, and two weeks in the summer. She proposed that the travelling expenses for three trips to New Jersey be shared equally. She had no objection to defendant having additional parenting time in Florida. She also was amenable to additional parenting time in New Jersey at defendant's sole expense until the children entered school.

Defendant opposed plaintiff's application to relocate because it would not be fair to the children to be taken away from him. If the judge allowed plaintiff to relocate, he sought extensive parenting time at plaintiff's sole expense as follows:

(1) December 9 until New Year's Day one year; on alternating years, four weeks beginning with Christmas week and ending after their daughter's birthday on January 20;

(2) three weeks starting the last week in February and ending after the second week in March;

(3) six consecutive weeks during the summer including ...


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