On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-272-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 23, 2009
Before Judges Lisa and Reisner.
Plaintiff, Patricia Ann Cathrall, appeals from a post-judgment order entered on March 15, 2007, denying her application, as the parent of primary residence, to relocate with the two children of the marriage to Jupiter, Florida. The order also granted to defendant, Eugene H. Cathrall, IV, specified unsupervised parenting time. As we will explain, the latter issue was further considered on a remand from this court. In light of the result of the remand proceeding, plaintiff no longer seeks relief from that provision in the order. Plaintiff argues on appeal:
THE TRIAL COURT ERRED IN ITS APPLICATION OF N.J.S.A. 9:2-2 TO PLAINTIFF'S REMOVAL APPLICATION, BECAUSE THE MINOR CHILDREN WERE OF SUITABLE AGE TO SIGNIFY THEIR CONSENT TO THE REMOVAL.
THE TRIAL COURT ERRED IN ITS APPLICATION OF THE BAURES STANDARD TO PLAINTIFF'S REMOVAL APPLICATION, WHERE EVERY FACTOR OF THE BAURES TEST WAS FOUND IN PLAINTIFF'S FAVOR, AND GOOD FAITH REASONS WERE FOUND FOR THE REMOVAL.
We reject these arguments. We find no error in the court's decision and order of March 15, 2007. However, in light of the additional information adduced after the entry of that order in the remand proceeding regarding events subsequent to March 15, 2007, we remand for reconsideration of plaintiff's removal application, taking into consideration that subsequent evidence and such further evidence of additional subsequent events as is appropriate.
The parties married in 1989. They had two sons, R.C., born on June 8, 1990, and P.C., born April 20, 1993. The parties separated in 1996. Since their separation, plaintiff has continuously been the parent of primary residence. The parties were divorced by judgment entered on November 13, 2003. Plaintiff remarried in 2004.
The relationship between the parties has been marked by a history of domestic violence. Plaintiff obtained a final restraining order against defendant on January 18, 1995, that was eventually dismissed. Plaintiff filed another domestic violence complaint against defendant on May 29, 1996, that resulted in a temporary restraining order, that was later converted to a civil restraint by consent of the parties.
Defendant has a longstanding alcohol abuse problem. This circumstance has had an adverse effect on his relationship with his sons, who contend that their father was often verbally abusive toward them and that he often drank to excess in their presence.
Plaintiff had education and experience as a buyer in the clothing industry. She became the owner and operator of a children's clothing store in Stone Harbor, which she has operated for several years as a seasonal business during the summer months. Sometime prior to April 8, 2004, plaintiff made application to the court for permission to relocate to Marathon, Florida with her sons. She expressed her intention to open a similar store there, which she would operate during the winter months, and return annually to New Jersey for the summer months, where she would operate her Stone Harbor store. Both parties were represented by counsel in that proceeding, in which defendant opposed plaintiff's application. By order of April 8, 2004, Judge Rauh granted plaintiff's application.
Soon after entry of the order, plaintiff and her sons moved to Marathon. They remained there until the end of the school year in late May. Plaintiff's present husband, Neil Greenberg, purchased a home there, although he apparently did not physically move to Marathon with plaintiff and the boys.
As planned, plaintiff and the boys remained in New Jersey during the summer of 2004. However, they did not return to Marathon at the end of the summer. Plaintiff gave three reasons for altering her plans. First, defendant's mother sued plaintiff, apparently for a claimed indebtedness. Plaintiff filed a third-party complaint against defendant. The litigation made it impracticable for plaintiff to return to Florida. Second, plaintiff and Greenberg contend that their Marathon home was destroyed by a hurricane. Third, during the summer of 2004, P.C. contracted an eating disorder, which, according to plaintiff, was due to being subjected to his father's expired, inedible food. P.C. was being treated by a local physician for this condition, and plaintiff did not want to interrupt that course of treatment.
Over the next two years, plaintiff, Greenberg, and the boys continued living in Cape May County. The boys attended local public schools. Although the orders of the Family Court provided for only supervised parenting time with defendant, both parties routinely ignored this provision, and the boys spent much unsupervised time with defendant. Indeed, ...