March 18, 2009
PATRICIA ANN CATHRALL, N/K/A PATRICIA ANN GREENBERG, PLAINTIFF-APPELLANT,
EUGENE H. CATHRALL, IV, DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, during the summer months, they spent most of their time living with defendant, particularly R.C.
The litigation was eventually concluded, and, in the summer of 2006, plaintiff renewed her efforts to relocate to Florida and establish her business there. The parties dispute the precise circumstances of plaintiff's move to Florida in August 2006. According to plaintiff, she made efforts to meet with defendant and discuss her plans, but defendant would not meet with her. Defendant denied this. In any event, based upon her asserted belief that the earlier relocation order allowed her to move with the boys to Florida, plaintiff moved in 2006 to Jupiter, Florida.
Plaintiff did not seek further court permission to move. Plaintiff did not inform defendant of her move, and, when he realized that she and the boys were gone, plaintiff obstructed defendant's efforts to ascertain her whereabouts. Greenberg remained in New Jersey. He later testified that he went to Jupiter on a couple of occasions, each time for a few days. However, he could not leave New Jersey at that time because of his business obligations. Plaintiff was living in a rented residence in Jupiter. The boys were enrolled in local public schools. They were doing well in school, making new friends, and liked it there.
Greenberg is a boat captain, owns his own boat, and operates a sport fishing charter business in New Jersey. He was also in the real estate business and owned investment properties in New Jersey and Florida. If he, plaintiff and the boys would be allowed to move to Jupiter, Florida, it was his intention to operate his fishing business there during the winter months and in New Jersey during the summer months. He also expressed an interest in establishing a tropical fish business in Florida, a venture in which he has had past experience and success.
On September 19, 2006, defendant filed an order to show cause seeking the return of the children from an unknown location. Judge Rauh signed the order. Plaintiff did not return to New Jersey immediately, but did return with the children on December 25, 2006. At a hearing on January 2, 2007, the judge ordered that plaintiff was to remain the parent of primary residence and the children were to remain in New Jersey. The earlier order providing for supervised parenting time by defendant was continued in effect.
The judge deemed the relocation issue to be a renewal of plaintiff's 2004 relocation application. The judge made clear that because of the intervening two years in New Jersey, circumstances had changed, and the new application was for relocation to a different city in Florida, as a result of which a new hearing was required before relocation could again be allowed. On February 2, 2007, the court again considered the matter, ordered that the children be enrolled in school in New Jersey, and scheduled a plenary hearing, which was held on March 2, 9 and 12, 2007.
At the hearing, plaintiff described the educational opportunities and extracurricular activities available to the boys in Florida. She described in some detail her business venture in Jupiter, which was then open for business and operating. It was temporarily being operated by an individual plaintiff was paying, but she hoped to return there and operate it personally. She explained her plan. The busy season for the Florida store would be in the winter months. She and her husband would live in Jupiter during the school term with the boys. She would operate the store, and her husband would operate his fishing business and his proposed tropical fish business. As soon as the school term would end each year, the entire family would come back to Cape May County. She would operate her Stone Harbor store during the summer and her husband would conduct his fishing business. The boys would have parenting time with their father throughout the summer. And, she expressed a willingness to allow the boys to come to New Jersey from time to time during recesses of the school term to visit their father, if they wanted to see him.
Plaintiff claimed to have told defendant in the fall of 2004 and into 2005 that she intended to return to Florida with the children. She admitted changing her cell phone number in September 2006 to avoid calls from defendant. She said the boys refused to speak to defendant when he called. She admitted that she never told defendant where she and the boys were nor did she tell the Cape May police when they contacted her. She simply told them that he had a relocation order permitting her to remove the children from New Jersey to Florida.
A police witness as well as Greenberg testified regarding confrontational incidents between the boys and defendant, and with regard to defendant's alcohol consumption in the boys' presence. Greenberg described "rescue missions," in which he or plaintiff would receive a call from one of the boys while they were with defendant that defendant was drinking, or there was some problem, and they needed to be picked up. Greenberg admitted that after plaintiff and the boys moved to Jupiter, he told defendant only that they were in Florida, but would not reveal the specific location.
Judge Rauh interviewed the boys. He reported that "[t]hey both articulated a very clear desire to return to Florida, and to come back up here in the summertime." They told the judge their father constantly yelled at them when they were with him. They also told the judge they loved their father.
Defendant testified and explained his extensive unsupervised visitation with the children, contrary to court orders dating back to January 2001, including the boys' summer stays with him. However, defendant had little to no visitation with the boys from the fall of 2005 to the spring of 2006. During that time, his calls to them were not returned. According to defendant, plaintiff never told him of her plans to relocate to Florida, and when he realized she left the area, his efforts to reach her or the boys by phone were usually unsuccessful. When he did get through to one of the boys in October 2006, they would not tell him where they were.
Defendant acknowledged his history of alcohol abuse and treatment. He said he last drank alcohol in the spring of 2006.
Defendant's mother testified. She believed her son was in control of his drinking problem.
On March 15, 2007, Judge Rauh issued a comprehensive oral decision. He summarized the testimony of the witnesses, and then outlined the controlling legal principles as set forth in Baures v. Lewis, 167 N.J. 91 (2001).
The judge first analyzed whether plaintiff made a sufficient prima facie showing of a good faith reason for the move and that the move would not be inimical to the children's best interest. Included within that showing must be a parenting time proposal. The judge acknowledged that the initial burden is not a particularly onerous one. The judge found that plaintiff's reasons for the move were to pursue business opportunities in Florida to complement her seasonal operation in New Jersey. Further, plaintiff had researched educational opportunities in Jupiter, which she found superior to the opportunities in New Jersey. Plaintiff candidly acknowledged that she had the desire in 2006, as she also had in 2004, "to be away from the upset that [resulted from] being in close proximity to the children's father, which has gone on since really the parties separated sometime ago."
The judge noted defendant's position that summer parenting time does not equate to regular and consistent parenting time, and that based on plaintiff's conduct, defendant had no comfort level that plaintiff would allow him contact with the children. In analyzing the past history of dealings between the parties as bearing on the reasons for and against the move, the judge found that the relationship was very contentious and acrimonious and would not be a positive situation if the move were allowed.
The judge recognized that the boys would receive comparable educational, health and leisure opportunities in Jupiter, which weighed significantly in favor of allowing the move. R.C. had some learning issues, and both had special interests, which could be well accommodated in either state.
The judge considered whether a visitation or communication schedule could be developed that was likely to succeed and provide defendant a meaningful relationship with the children. The judge recounted plaintiff's removal of the children without notice and without advising defendant of where they were, and her lack of cooperation, and lack of candor and the many "roadblocks that were set up in front of the Defendant." The judge seriously doubted whether a visitation and communication schedule could be developed that would afford defendant a continuous relationship with his sons.
A related factor, the likelihood that the custodial parent would foster the relationship between the children and the other parent, was also found problematic by the judge. For substantially the same reasons as with the previous factor, the judge had "significant doubts that the custodial parent will foster the relationship between the children and their father."
The judge found no particular significance or applicability to the extended family relationships factor. The judge then addressed the preference of the children. He acknowledged their very strong desire to live in Jupiter. They told the judge "they liked it there, that the schools are good for them there, that they love their father, but they're happy to be in Florida and they can see their father when they come back up in the summertime."
The judge then considered whether any special relevance attached to the fact that R.C., then three months shy of his seventeenth birthday, was a junior in high school, and thus entering his senior year. Because R.C. had spent very little time in the Jupiter schools, the judge did not consider this factor applicable.
Finally, the judge evaluated whether defendant had the ability to relocate. Recognizing that defendant had lived for twenty to thirty years in South Jersey, the judge found that defendant's relocation was questionable. Nevertheless, the judge found that defendant could move to the Jupiter area if he chose to do so.
After analyzing all of the Baures factors, the judge returned to the threshold requirement of plaintiff's prima facie showing. He concluded that he could not make the determination that plaintiff had a good faith reason for the move. He noted that plaintiff left without telling defendant she was taking the children and leaving the State. She refused to supply an address or phone number where she and the children could be reached. She changed her cell phone number. She resisted returning promptly to New Jersey when defendant initiated this proceeding. At the plenary hearing, defendant produced tape recordings of some of his conversations with the boys while they were in Jupiter. The judge found from listening to those tapes "that the children had been shown the pleadings and the children were enlisted in the effort to essentially alienate the father from his children."
Judge Rauh found that, in addition to wanting to get away from defendant, plaintiff's other stated reasons, namely to pursue her business venture and to provide good educational opportunities for the boys, were "sincere, but they're outweighed. The primary motivating factor, in my view, is to take these kids away from their [father] and that was shown by her deliberate attempts to disallow him access while the children were in Florida." The judge therefore found that, in the totality of the circumstances and balancing the legitimate motives for plaintiff's wish to relocate against the improper ones, plaintiff failed to meet her initial burden.
The judge further found that plaintiff's proposed plan for parenting time was not sufficiently established as viable, because "the plan requires me to have some faith in the Plaintiff that she's going to do what I order her to do. And quite frankly, I don't have that faith at this particular point." The judge found that plaintiff's move to Florida "was a deliberate attempt to put distance between the children and their father and to take them where he couldn't get to them." The judge also found that plaintiff deliberately ignored his September 2006 order by not returning with the children until December 25, 2006. He found a lack of willingness by plaintiff to comply with court orders regarding parenting time. Accordingly, the judge denied plaintiff's relocation application.
As part of these proceedings, defendant had moved for unsupervised parenting time. The judge granted defendant's motion. Although the judge did not "have any confidence that Mr. Cathrall has a serious handle on his drinking," he also found that "there's no objective evidence of him drinking since March of 2006 and there's certainly no evidence of him drinking in front of the children." In this regard, the judge also noted that the children were now of sufficient age to take care of themselves if things began to deteriorate during parenting time with their father.
The judge entered an order on March 15, 2006 denying plaintiff's relocation application and granting defendant unsupervised parenting time every Wednesday from after school until 7:00 p.m. and Saturday from 2:00 p.m. to Sunday 2:00 p.m. The order also granted defendant's application for a Family Court Assessment Team evaluation.
Plaintiff immediately sought emergent relief in this court from the unsupervised parenting time portion of the order. We granted an emergent stay and remanded for further consideration of the issue, with particular reference to any potential adverse effects related to defendant's drinking problem.*fn1 On May 25, 2007, Judge Rauh ordered defendant to submit to a psychological and substance abuse evaluation.
On July 30, 2007, the judge conducted an in camera interview with the children. P.C. told the judge he thought defendant was still drinking. The boys described a physical altercation between them, defendant and defendant's girlfriend. Police were called to the scene. P.C. expressed a preference to return to Florida. R.C. expressed no particular preference. P.C. contended that his father had hit him. P.C. told the judge that he did not want to spend time with his father.
On August 16, 2007, the judge heard further testimony on the remanded issue. A local police officer testified and described an incident on May 2, 2007 when he was called to the scene of the physical altercation involving P.C., defendant and defendant's girlfriend. Plaintiff produced two expert witnesses, Lori Burke, a family and individual therapist, and Carlyn Graham-Conover, an expert in child therapy and social work with children. Burke opined that it was not in the best interest of the children to be required to have visitation with their father, but that they should be permitted to visit with him if they wished. She was of the view that the boys were capable of expressing themselves as individuals in this regard. Graham-Conover related that the boys expressed anger toward their father and confusion about being forced to return from Florida. She found the children sincere and independent. Considering their age and maturity level, she believed they should be given significant consideration of their own wishes.
Defendant testified. He described his version of the unpleasant events between him and the boys since the March 15, 2007 order.
Based upon all of the evidence, and taking into consideration his interview with the boys, Judge Rauh stated that "[t]he visitation since the March order, to say the least, has not gone well." He recognized that he could not make the boys want to visit with their father. He entered an order allowing parenting time for defendant "only if initiated by the children or in an appropriate therapeutic setting." The judge acknowledged that "in many respects this case is a moving target." Thus, the judge lamented, "what's true today necessarily isn't true tomorrow."
That concluded the remand proceeding, and the matter returned to this court. Defendant did not cross-appeal from the judge's August 16, 2007 order. The matter came back to this court for disposition in the ordinary course. See R. 2:11-1(a) (providing that generally appeals shall be calendared in chronological order in the order of perfection). Neither party moved for acceleration of the appeal or for a remand on the relocation issue. Plaintiff's brief was filed on December 28, 2007. Defendant's was filed on August 19, 2008. After expiration of the time allowed for a reply brief, the case was deemed perfected. It was then placed on our February 23, 2009 calendar in its chronological turn among perfected appeals.
We note in this regard that on March 29, 2007, at the initial court hearing after our remand, plaintiff's counsel acknowledged that he sought an emergent stay only with respect to the unsupervised visitation issue and "as far as moving to Florida, that's in the natural course of an appeal." He continued: "I did not see the emergent nature of appealing the balance. I do know that its urgent, but I don't know if it meets the court's definition of emergent." As we stated, neither party moved to accelerate the appeal.
We point out this information because we agree with Judge Rauh that this case, like many in the family part, is a "moving target" in which "what's true today necessarily isn't true tomorrow." Had it not been for the remand on the separate issue of unsupervised visitation, we would have before us only the record ending with the judge's decision and order on March 15, 2007. In deciding the relocation issue, the judge, of course, based his decision on the evidence before him to that point. Our review of the judge's decision would be based upon the same record.
Under our standard of review, we first recognize that relocation applications are extremely fact sensitive. The trial judge, sitting as a factfinder, must carefully evaluate the evidence to make factual findings within the Baures framework and applying the Baures factors. Typically, the judge will be confronted with substantially conflicting descriptions of events and characterizations of conduct. That was so in this case. Thus, the judge is called upon to evaluate the demeanor of the witnesses and make critical credibility determinations.
The scope of our appellate review of a trial court's fact-finding function is limited, and generally the findings by the trial court are binding on appeal when supported by adequate, substantial, and credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). This deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility. Cesare v. Cesare, 154 N.J. 394, 412 (1998). The trial judge, who hears the case and sees and observes the witnesses as they testify, is in the best position to evaluate the credibility of the witnesses. Ibid. Further, recognizing the special expertise of family court judges in family matters, we accord enhanced deference to family court factfinding. Id. at 413.
Applying this highly deferential standard, we are satisfied from our review of the record that Judge Rauh's factual findings on the relocation issue as expressed in his March 15, 2007 oral opinion are supported by the record evidence. The judge applied the correct legal principles as required by Baures to those factual findings, and his ultimate conclusion in denying plaintiff's relocation application was sound. If the record ended there, we would affirm.
However, the record before us reflects the occurrence of materially significant events after March 15, 2007, which signaled a significant change in circumstances involving the relationship among the affected parties. Those changed circumstances will likely have a direct hearing on the Baures factors. Efforts at establishing a regular parenting time arrangement between the boys and defendant proved unsuccessful. Experts testified as to the inadvisability of forcing the efforts further, and recommended that parenting time with defendant occur only if initiated by the boys, and on their terms. The boys expressed a similar feeling in their interview with the judge. The judge made findings, well supported by the record, that such a result was the most appropriate one under all of the circumstances, and he so ordered on August 16, 2007. Because our remand was limited to the unsupervised visitation issue, there was no occasion for the judge to reevaluate the relocation application.
Thus, the record leaves us in a situation in which R.C. and P.C. were not regularly visiting with their father under a court-ordered schedule. It is likely that their time spent with their father was very limited, and perhaps nonexistent on and after August 2007. Much time has passed since then. The boys are now older. R.C. has presumably graduated high school and will be nineteen years old on June 8, 2009. We do not know if he went to college as he had intended. He is, of course, of legal age and can live where he chooses. P.C. will turn sixteen on April 20, 2009. As with R.C., we do not know the status of P.C.'s relationship with his father in light of the events that occurred between March 15 and August 16, 2007.
In short, because of the turn of events that occurred after the relocation decision, which, although part of the record before us cannot be used to review the propriety of an order entered prior to their occurrence, we think it most sensible to remand to the trial court for reconsideration of plaintiff's relocation application. On remand, the matter should be heard by Judge Rauh, who is thoroughly familiar with the case. This assumes, of course, that plaintiff continues to desire to relocate outside of New Jersey.
Finally, we address the other argument presented by plaintiff, namely that because R.C. and P.C. consented to relocation to Jupiter, and because they were of "suitable age" to signify their consent, their relocation was required under N.J.S.A. 9:2-2. By its terms, that statute prohibits removal of children of suitable age out of New Jersey against their consent. We first note that the apparent statutory prohibition against removal contrary to the consent of a child of suitable age is not the same as mandating removal if it is consistent with the child's consent. More importantly, however, in Baures, the Supreme Court interpreted the statute and concluded that in assessing whether to order removal, courts should evaluate a variety of factors relevant to the moving party's burden of establishing good faith and that the move will not be inimical to the child's interest. Baures, supra, 167 N.J. at 116-17. Included among those factors is "(9) if the child is of age, his or her preference." Id. at 117. Thus, the preference of R.C. and P.C. was not controlling, but was one of many factors to be weighed and balanced in the overall analysis. We therefore reject plaintiff's argument on this issue.
Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.