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Campbell v. Campbell

August 11, 2009

MICHAEL CAMPBELL, PLAINTIFF-RESPONDENT,
v.
CLAUDIA CAMPBELL, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-330-03C.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 22, 2009

Before Judges Yannotti and Lyons.

This case arises from a dispute between former spouses, defendant, Claudia Campbell, and plaintiff, Michael Campbell. Defendant appeals an order granting plaintiff full legal and physical custody of the parties' two daughters, M.C., age twelve, and G.C., age nine. We affirm.

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. The parties were married in a civil ceremony in New York on November 12, 1993. At some point, the parties moved to New Jersey and purchased a home in Mercer County. After nearly ten years of marriage, on October 21, 2003, the parties entered into a separation agreement. The trial court entered a judgment of divorce, which incorporated the separation agreement on November 20, 2003. The parties agreed to share joint legal and physical custody of the children, with defendant being the parent of primary residence.

The parties' youngest child, G.C., was born with a club foot, and after years of pursuing other treatments, it became apparent that surgery would be necessary to correct the problem. For primarily financial reasons, defendant desired that the surgery be performed in Europe.

On August 17, 2006, when G.C. was seven-years-old, the motion court signed a consent order allowing defendant to take the children to Europe so that G.C. could receive the necessary surgery. At the time, defendant and the children still resided in New Jersey. The order stated that if, after a "reasonable period of time" the surgery could not be performed, the children were to return to the United States. The order further clarified that, pending a court order to the contrary, the children should be brought back to the United States by August 31, 2007. The parties were to continue to share legal custody of the children.

Shortly thereafter, M.C. and G.C. left the United States with their maternal grandparents. Defendant eventually followed. However, G.C. did not receive any surgery and, sometime between September and December 2006, the children and defendant returned to New Jersey.

In December 2006, plaintiff, not realizing the children had returned, filed a motion requesting that defendant bring the children home to the United States. He also requested physical custody of the girls. The motion court heard plaintiff's motion on January 17, 2007. The court expressed frustration at defendant's insistence that M.C. accompany her while she traveled through Europe attempting to arrange G.C.'s surgery. The motion court's primary concern was the impact this lack of continuity had on M.C.'s education. The court, however, denied plaintiff's motion and permitted defendant to take the children to Europe again, stating, "[M.C.] may return to France/Italy and remain in defendant's primary residential custody for the duration of [G.C.'s] surgery and recovery period."

On April 5, 2007, plaintiff again filed a motion requesting that the children be returned to New Jersey and that he be granted physical custody. In response to plaintiff's motion, the court ordered Dr. Norman Weistuch, the children's guardian ad litem,*fn1 to prepare a report concerning the issue of custody. The motion court determined that it would "consider whether to schedule a plenary hearing on the matter" based on that report.

On July 19, 2007, Dr. Weistuch submitted his report to the motion court. He recommended plaintiff be awarded custody of the children. As a result, the trial court scheduled a plenary hearing for January 2, 2008.

On January 2, 2008, defendant failed to attend the hearing. As such, the court entered an order requiring her to provide proof of G.C.'s surgery and prognosis, to return to New Jersey with the children, and to submit to an interview by Dr. Weistuch. The trial court then adjourned the plenary hearing until March 21, 2008.

G.C. finally received surgery to correct her club foot on February 12, 2008. The surgery was performed in Europe.

Since initially taking the children overseas, defendant moved to different locations in Europe a total of five times and did not keep plaintiff informed of her location, nor did she provide him with contact information. On March 4, 2008, the motion court entered an order requiring defendant to provide plaintiff with contact information for herself and the children. The order also required defendant to provide plaintiff with information concerning G.C.'s doctors and her recovery. She ...


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