October 29, 2009
MICHAEL P. HRYCAK, PLAINTIFF-APPELLANT,
RITA HRYCAK, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Family Part, Union County, Docket No. FM-20-0974-07B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued (A-1321-08T4) October 1, 2009
Submitted (A-3645-08T2) October 1, 2009
Before Judges Stern, Sabatino and Newman.
In these two related matrimonial appeals, which we hereby consolidate, plaintiff Michael P. Hrycak seeks review of various orders the Family Part issued after his divorce trial. For the reasons noted in this opinion, we affirm the trial court's award of primary residential custody of the parties' two minor children to their mother, defendant Rita Hrycak. However, we remand the issues concerning the court-approved relocation of the children to California with defendant, pending the development of a detailed parenting plan and a reexamination by the trial court of whether such a parenting plan feasibly allows the children to maintain an adequate relationship with plaintiff. We also remand to the trial court issues concerning the sale of the marital residence and the related home equity line of credit.
The parties were married in August 1994 in Elizabeth. Two children were born of the marriage: an older son born in August 1998 and a younger son born in December 2002. The marital residence at the time of the divorce proceedings was a house in Cranford.
Plaintiff is an attorney licensed to practice law in New Jersey, New York, Connecticut, and the District of Columbia. Plaintiff is also a Lieutenant Colonel in the New Jersey National Guard. He was on active duty in the United States Army from October 24, 2004 through January 6, 2006, and again from February 3, 2006 through June 12, 2008. Defendant has not been employed full-time since 2002 when she was laid off from an information technology position with Rutgers University Computing Services. At that time, defendant was pregnant with the second child. Thereafter, defendant became a stay-at-home mother.
Marital problems arose between the parties, particularly after the younger son's birth in 2002. The parties had disagreements about whether defendant would go back to work or remain at home caring for the children. Difficulties also arose concerning the religious upbringing of the children. Defendant is Hindu by her religious background. Plaintiff, who is an Ukranian Catholic, wanted the boys to attend regular services and religious education classes in the Ukranian church. The older son resisted going to the Ukranian church and had arguments with his father about going.
As a result of these and other conflicts within the household, defendant began taking the children on weekends to her parents' home, which was then in Pennsylvania. Substantial renovations were also underway in the marital home. In June 2004, defendant took the boys to California, where defendant's parents had relocated and where she has several relatives. They remained in California until late August 2004, before the start of school.
In October 2004, plaintiff was called to active duty with the 42nd Infantry Division of the United States Army, and was dispatched to Fort Drum, New York. Plaintiff remained on active duty and stationed at Fort Drum between October 2004 and November 2005. During most of that thirteen-month period, plaintiff would return to New Jersey to visit the children about one or two weekends each month.
Defendant took the children to California for about two weeks in the spring of 2005, and again from the end of July 2005 through the end of August 2005. Plaintiff, meanwhile, remained on active duty in the military through the end of 2005.
The older son developed academic and social problems in the first grade at his elementary school. After a series of evaluations, the boy was placed in a "basic skills" program. His parents had disagreements about this as well, with plaintiff deciding to take a more conservative approach than defendant in allowing the older son to work through his difficulties.
Plaintiff was on "terminal leave" from November 2005 until January 2006, when he was notified of his redeployment. On February 6, 2006, plaintiff was sent to training in Fort Hood, Texas. He was then deployed to Iraq on March 27, 2006. Defendant again took the children to California in June 2006.
Plaintiff returned to Cranford from August 11, 2006 to August 25, 2006, on a "mid-tour leave." The next day, plaintiff departed for Iraq. Plaintiff was unable to see his children during his leave because they were in California. Defendant returned to Cranford with the children on August 28, 2006, and the older son began attending the third grade in the local elementary school.
On November 19, 2006, defendant removed the children again to California. Meanwhile, plaintiff, then still on active duty in Iraq, filed a complaint for divorce in the Family Part on December 21, 2006. Although plaintiff is an attorney, he was represented by counsel in the divorce proceedings. Defendant retained her own counsel.
On January 2, 2007, plaintiff filed an order to show cause seeking the immediate return of the children to New Jersey. His request for temporary restraints was denied, and a hearing on the application was set for January 26, 2007. On January 26, 2007, the trial court denied plaintiff's "application to return the children of the marriage to New Jersey," without prejudice.
On March 28, 2007, plaintiff returned from Iraq to Fort Hood, Texas. Plaintiff returned to New Jersey on June 7, 2007. Following a case management conference, defendant was ordered by the Family Part, on July 16, 2007, to return to New Jersey, with the children, by August 1, 2007. Defendant complied with this order, and the children returned to New Jersey in time for the start of the 2007-08 school year.
In September 2007, the older son began fourth grade in the Cranford school system. The younger son enrolled in pre-school. In May 2008, the parties referred their older son to the Cranford Public Schools Office of Special Services for an evaluation by the school psychologist to address concerns with his "written expression and organizational difficulties." The school psychologist found the older son bright, friendly, optimistic and outgoing, but having difficulty concentrating. The psychologist recommended that the boy receive "support, structure and organizational help within the classroom setting in order to achieve his potential."
Plaintiff's parents, both in their mid-eighties, live in Cranford. While plaintiff's mother helped care for the oldest boy early in life, the record suggests that the relationship between plaintiff's parents and the children had become more attenuated.
Plaintiff has developed a relationship with a woman who is a dentist. Plaintiff represented that his significant other would assist with child care, although the record reflects that she has an active dental practice in Delaware.
In the divorce litigation, the parties took very competing positions on the issues of custody and relocation. Defendant wished to relocate with the two children to California, where she could be near her parents and her sister. Plaintiff urged that the children remain in New Jersey, and that the parents share parenting time on an equal basis. He vigorously opposed the removal of the children to California.
To assist in addressing these contested issues affecting the children, the trial judge appointed a licensed psychologist, Mathias Hagovsky, to perform a "best interests" analysis as a psychological expert, pursuant to Rule 5:3-3(b). Dr. Hagovsky has a Ph.D. in school psychology from Fordham University and a masters degree in school psychology from Seton Hall University. He has been fully licensed in New Jersey since 1979 in a private practice devoted to children. Dr. Hagovsky has published articles relating to attachment theory and child development. He has performed about 2,000 custodial evaluations in the past two decades and has testified numerous times in the Superior Court as an expert witness.
Following a series of interviews from July 2007 through May 2008, and the administration of several diagnostic tests, Dr. Hagovsky completed his court-ordered written evaluation on May 29, 2008. Based upon his review, Dr. Hagovsky recommended that defendant be designated the parent of primary residential custody. Among other things, the psychologist noted the friction in the older son's relationship with plaintiff, the older son's expressed desire to live in California rather than New Jersey and his identification with his relatives in California, defendant's ties to her parents and sister in California, and the fact that the children have already become accustomed to long absences by their father. Dr. Hagovsky also noted the advantages of keeping the two siblings together.
Dr. Hagovsky further recommended that defendant be permitted to relocate with the children to California, in anticipation of arranging parenting time with plaintiff over long weekends, school holiday breaks, and the summer. In this respect, Dr. Hagovsky's report observed:
[T]he data suggests that while there are factors which clearly support both the children's remaining in New Jersey and moving to California, there is greater data-basis for the suggestion that they be permitted to relocate with their mother to California. Both children are already accustomed to long separations from their father and their relationship with him (which is not nearly as substantive as their relationship with their mother) could be maintained by contact even from a distance and for sustained periods of time. Therefore, it would be permissible to suggest that the bulk of the Christmas vacation, school breaks of longer than five days, and a bulk of the summertime be devoted to the children's living with their father in New Jersey. This would create a particular problem for [the older son], however, who cannot imagine himself even flying alon[e,] much less without his mother, and is still not accommodated to sleeping over with his father. His emergence onto the scene of longer visitations may take longer than even [the younger son] who may be able to tolerate longer separations from his mother and brother.
This schedule would place a significant burden on Ms. Hrycak who would most likely have to accompany the children on their travels, at least initially, and perhaps for the shorter parenting time sessions, stay in New Jersey.
It is also within probability to suggest that Mr. Hrycak spend time in California with the children and that he visit them as much as possible. It is also possible to suggest that he consider relocation, especially if he is currently obtaining more schooling to facilitate his practice of international security law, something which would have wider applicability than to this one metropolitan area. Assuming that reports that his legal practice is not so extensive that it could not be transferred or translated into some other practice, perhaps military-service-based, his mobility may be greater than others. He must take into consideration, however, that forcing Ms. Hrycak to stay in this area and attempting to impose on the children a set of standards and a culture which is neither consistent with her background or her desires, greatly increases the likelihood that his efforts will largely be wasted, and perhaps more importantly greatly increases the likelihood that the children will be exposed to conflict or experiences so disparate that their growth and development will be negatively affected. They are also likely to see him as being responsible for their unhappiness.
Although he differed with the conclusions rendered by Dr. Hagovsky and objected to the expert's methodology, plaintiff did not retain a competing expert in child development to attempt to rebut Dr. Hagovsky nor did he seek an adjournment of the trial for that purpose.
The trial court bifurcated the trial of the custody and removal issues from the parties' economic issues. The custody and removal issues were tried over eight intermittent days in July and August 2008, culminating with in-camera interviews of the two children. The court considered testimony from the parties, Dr. Hagovsky, and plaintiff's brother, a New Jersey resident. The court also considered numerous exhibits and oral summations of the parties.
Plaintiff presented a written parenting plan, which proposed that the parties share custody and parenting time on an equal-time basis. Plaintiff's pre-trial parenting plan assumed that defendant would remain in, or in close proximity to New Jersey. The record does not contain a written parenting plan from defendant, although defendant testified at trial that she would accept the general recommendation for a parenting plan authorized by Dr. Hagovsky.
Dr. Hagovsky was qualified by the trial court under N.J.R.E. 702 and testified as an expert witness without objection by either party. The court briefly examined Dr. Hagovsky, who was then cross-examined at length by respective counsel for each of the parents, over the course of most of two trial days. The psychologist's trial testimony essentially replicated the opinions in his report.
On the particular issue of relocation, Dr. Hagovsky testified, consistent with his earlier report, that "there was more data to suggest that the children should relocate than that they should be made to remain in New Jersey." When asked for the basis for that conclusion, the expert responded:
A combination of factors. Certainly the nature of the relationship between the children and their mother is an important factor. And I think that the children feel more comfortable with her, would certainly reflect her state as well, and that if she were forced to be in a situation that were -- that was uncomfortable or oppressive to her, that this may have an impact on their emotional state as well. That the children had already become somewhat accustomed to long absences from their father and were able to manage to, to be able to do that and still maintain a connection and a relationship with him. If I may just review this quickly. I also felt that [the oldest son] -- even though I didn't completely buy the idea that everything in New Jersey from a school perspective is bad and everything in California from a school perspective is good -- that's a kid's way of saying, you know, I like one thing better than another.
But it certainly isn't typically a reflection of reality. But that his attitude may play a part in how he relates to the children in one setting as opposed to another. He clearly has a very negative attitude about schooling in his current school in Cranford. And he clearly has a very positive attitude about his schooling at the school he attended in California.
And to the extent that attitude and kid's intention may play a part, it also appeared to me that the probabilities were greater that [the older son] would be happier in the new setting as opposed to in the old setting, which was clearly tainted by his prior experience. I also felt that the kids would certainly miss their mother in far greater measure than they would miss their father if the custodial arrangement was reversed.
Dr. Hagovsky did not offer a specific calendar with a parenting time schedule. Nor did he address in depth the economic or practical feasibility of such a schedule involving the father residing in New Jersey and the mother residing with the children in California. However, Dr. Hagovsky did opine that such a bicoastal arrangement would still allow the children to "maintain the kind of relationship [with plaintiff] that they have with him now from a distance."
When pressed on these issues during cross-examination by both counsel, Dr. Hagovsky continued to endorse the bicoastal concept, with some caveats and concerns about the time and travel involved and the feelings of the children. Dr. Hagovsky did acknowledge that the coast-to-coast flights of five and a half hours, plus travel to and from the airports, would consume much of two days of potential parenting time. He suggested that the parties utilize three-day weekends and "perhaps work out something with the school" to see if they could "add on an additional [fourth] day" to such three-day weekends. He also suggested parenting time for plaintiff during school holiday breaks and "a substantial part of the summer."
Dr. Hagovsky conceded that the younger son was too young to fly unaccompanied to New Jersey. The doctor also noted that given the older son's resistance "to spend any time overnight with his father" that the mother is "going to have to do some of that traveling to make sure that he's comfortable in coming and staying, and trying to... insist that he participate." Dr. Hagovsky also conceded that neither child was willing to spend "a significant bulk of time" with their father without their mother also being present, and stressed the importance of the mother traveling with the children to smooth out these "transitional fears and anxieties."
Another caveat about parenting time raised in Dr. Hagovsky's cross-examination is the effect upon the older son's activities and relationships with his peers when he is taken away from his day-to-day environment to come see his father in New Jersey during breaks from school. The doctor acknowledged that such trips "can be a problem for kids in the sense that they very often use some of those times for additional socialization with their peers, activities, special events, [and] that type of thing."
During the court's private interviews with the two boys at the end of the trial, the boys expressed views similar to those that they had presented to Dr. Hagovsky. Both stated that they preferred their school in California to their school in New Jersey. The older son also noted that he does not like sleeping at his father's residence, and complained that his father can get angry with him.
Following these proofs and the closing arguments, the judge rendered a lengthy bench ruling on October 29, 2008. The judge awarded primary residential custody to defendant. In his analysis, the judge carefully tracked the statutory factors of N.J.S.A. 9:2-4. The following excerpts from the judge's custody ruling capture the gist of his factor-by-factor analysis:
Factor [number] one, the parents' ability to agree, communicate and cooperate in matters relating to the child. I conclude that these parties can communicate, they can cooperate, and they have an ability to agree. Because... the prior history between them was situational and not necessarily permanent.....
I saw evidence of the parties ability to cooperate.... They both acknowledge [the older son] had a problem in school....
[U]ltimately they did agree to [use] a child study team. They did agree to go to the meetings. And they did cooperate....
I'm satisfied that they can do that. And they do it in California to New Jersey or wherever Mr. Hrycak goes. Because it's not actually clear to this [c]court where Mr. Hrycak is going to settle anyway. His significant other is in [Delaware]. His tour of duty... had finished as of... June 28th. But either way, if he gets an assignment or doesn't get an assignment, the fact is he's not bound to Cranford. They can communicate in matters relating to these two children.
Factor number two, the parents' willingness to accept custody. Well, they're both willing to accept custody. That's for sure. And any history of unwillingness to allow parenting time not based on substantiated abuse.
I don't think there's been any substantiated abuse, certainly no domestic violence complaint was filed....
I don't see any unwillingness to allow parenting time either....
And I see a willingness of the parties to allow parenting time. I certainly see a willingness on her side. And I do believe that she's going to be flying in from California with the children as part of parenting plans that may occur. And when Mr. Hrycak flies to California... she is not going to stand in the way of parenting. And I don't believe that Mr. Hrycak is going to stand in the way of parenting either. [Factor] [n]umber three, the interaction and relationship of the child with its parents and siblings. We've gone through that in a great, roundabout way, particularly through the eyes of Dr. Hagovsky, and also through [the older son's] eyes.... [T]here is no sense of this [c]court that this [c]court would ever separate [the younger son] from [the older son].
.... [The younger son] is a child of this marriage, but [the younger son] is bonded to his brother. And he's bonded to his mother. And I think he's bonded more to... Mr. Hrycak than [the older son] is.
That being said, they can't be separated.
[Factor number four,] [t]he history of domestic violence.... As I said, there's no documented domestic violence....
Factor [number] five, the safety of the child and the safety of either parent from physical abuse by the other parent, I make no finding that either party is at risk from physical abuse by the other... [.] And I don't believe any of the children are at risk for any type of harm from the parent.
[Factor number s]ix, the preference of the child, when of sufficient age and capacity to reason, so as to form an intelligent decision. [The younger son] does not have a basic opinion. And he is almost six. [The older son], most noticeably, has an opinion.... He is ten plus a little bit. And he is of suitable age, and he has a capacity to reason. And his reasons are fairly articulate. They're well grounded. They're based on facts....
[Factor number seven,] [t]he needs of the child. The best thing... to do for the relationship with [the older son] and his father and [the older son] and his mother is to let him go to California. I think that will immeasurably help [the older son] with the issues he's got in terms of his social issues.
Ms. Hrycak puts some of this to prejudice in Cranford, and indeed, it might be so. But [the older son] is struggling. He has no friends to speak of. He has one incident with a bully in school, which has been addressed....
Mr. Hrycak says he's working on it and it's getting better. [The older son] doesn't think so. [The older son] wants out of Cranford.
I still remember what [the older son] said when I was interviewing him, his body language and his facial expressions.
"It means everything in my life to me to go to California. I really want to go. I'd suffer anything to go to California."
[Factor number eight,] [t]he stability of the home environment offered.... I think Ms. Hrycak's [home] would be more stable. Right now Mr. Hrycak... was commuting to Maryland, coming back to New Jersey, and did not have a job, did not know where he was going to be. Ms. Hrycak is going to Carlsbad, California. She's got the town. She's been there. She had an apartment. Her parents are there.
[Factor number nine,] [t]he quality and continuity of the child's education....
There is continuity, however, to [the older son] by going to California because he's already been in California....
[H]e'll be in the same school system. And he has friends there.
I'm wondering if some of the continuity in Cranford is negative. Ms. Hrycak talks about exclusion she's seen in Cranford, based upon, she perceives, her being non-Caucasian or Hindu.
[Factor number ten,] [f]itness of the parents... they are both fit to be parent[s]. The statute is clear about making findings of fitness. A parent shall not be deemed unfit unless the parent's conduct has a substantial adverse affect on the child. And there is no such thing as that going on.
Ms. Hrycak is a fit parent. Mr. Hrycak is a fit parent....
[Factor number eleven,] [t]he geographical proximity of the parents' homes. Well right now the parties live several blocks apart.... When this relocation takes place they will be 3000 miles apart.
[F]actor [number twelve], the extent and quality of time spent with the child prior to or subsequent to the separation.... The quality of time spent by the children with their mother was better than the quality of time spent by Mr. Hrycak and the children, particularly [the older son].
Ms. Hrycak testifies, and I found it credible, to efforts that went on to get [the older son] to go to the Ukrainian school on Sundays, the battles that went on. I got a sense... that Mr. Hrycak was not really always as available as he perceives that he was in the relationship with [the older son]. And a lot of the time he spent was only weekend time and perhaps only going to church.
Factor [number thirteen], the parents employment responsibilities. That's really unclear at this moment. Ms. Hrycak does not have a job, at least as of the close of the record. Mr. Hrycak did not have a job as of the close of the record.
[Factor number fourteen,] [t]he age of the children... [.]
The trial judge then addressed defendant's removal application. He applied the two-part overarching test of Baures v. Lewis, 167 N.J. 91, 118 (2001), i.e., whether: "(1) there is a good faith reason for the move, and (2) that the move will not be inimical to the child's interests." As to the first prong of Baures, the judge found that defendant's relocation with the boys to California was in good faith. The judge noted that defendant has parents and family in California, "a place, which she believes she has a clearer future." The judge also referred to defendant's perception that she and her biracial children have faced bigotry in their present community, another impetus for her desire to move. The judge also pointed out that defendant is unemployed and that she would have schooling opportunities available to her in California.
With respect to the second prong of Baures, the judge concluded that a move to California would not be inimical to the children's best interests. The judge found particularly significant Dr. Hagovsky's assessment that forcing defendant to remain in New Jersey would greatly increase the likelihood that the children would be exposed to conflict. That conflict would negatively affect their growth and development and also be apt to cause the children to see their father as "responsible for their unhappiness."
The judge then examined the twelve removal factors identified in Baures that underlie the general two-part test of good faith and best interests. The judge discussed: (1) the reasons for the proposed move; (2) the reasons for plaintiff's opposition; (3) the parties' history of dealings; (4) the comparative educational, health and leisure opportunities for the children; (5) special needs of the children (which the judge found inapplicable); (6) the possible creation of a visitation and communication schedule; (7) the likelihood of fostering relationship with plaintiff as the non-custodial parent; (8) the effect of the move on the extended family; (9) the child's preference if he is of age; (10) the pendency of high school graduation (another inapplicable factor); (11) plaintiff's own ability to relocate; and (12) other intangible factors. See Baures, 167 N.J. at 116-17. Having canvassed those factors, the judge granted defendant's removal application.
The judge turned to the timing of the removal of the children to California. He expressed concern that the children had started a new school year and that the holiday season was approaching. The judge perceived that it was preferable to have the children enroll in their new schools in California promptly. Consequently, the judge entered an order permitting defendant to relocate the children to California "as early as November 7, 2008[,] but in no event should the children be delayed in moving to and enrolling in school in California beyond January 5, 2009."
The judge did not enter an order specifying a parenting time schedule. Instead, the judge gave the parties an opportunity to attempt to agree on a parental time schedule in light of the court's dispositive rulings on custody and removal. The judge did require that if the children were removed to California before the holidays, they should have Christmas with plaintiff in New Jersey.
Plaintiff immediately moved before the trial court for a stay of the custody and removal determinations. The judge denied the stay, but did certify those rulings as final for purposes of appeal pursuant to Rule 5:8-6. As part of its November 21, 2008 order, the trial court specified that "[t]he parties are directed to immediately attempt agreement as to a parenting plan. If no plan is achieved, the [c]court will direct the plan."
The November 21 order also recited that the trial court specifically retained jurisdiction "as to divorce, equitable distribution, child support, alimony and counsel fees." Four days later, on November 25, defendant moved for pendente lite relief, including "support for the [d]efendant and the children of the marriage," and requiring plaintiff to "execute a listing agreement for the sale of the marital home[.]" Plaintiff cross-moved seeking various relief, including "[r]estraining and enjoining the defendant from interfering with plaintiff's time and communication with the children whether via telephone, electronic mail or regular mail."
In an order dated January 2, 2009, the judge set a trial of February 17, 2009 on the open issues. The January 2 order further directed, in part, that plaintiff pay to defendant $5,784 per month in support. The order also appointed a real estate agent for the purposes of the listing and selling of the marital home. The order further provided that the home's listing price "shall be set by the parties, with the recommendation of [the court-appointed real estate agent]." The order also provided for the exchange of financial discovery and addressed other matters not relevant to the present appeals. The order was silent about parenting time arrangements, although it did restrain the parties from interfering with one another's "time and communications with the children via telephone, e[-]mail or regular mail."
Plaintiff promptly filed a notice of appeal of the custodial and removal rulings. He sought an emergent appellate stay of those rulings pending appeal, which was denied.
The parties failed to agree on the terms of a parenting plan. Without prejudice to his right to challenge the custodial and removal decisions on appeal, plaintiff filed a proposed visitation plan with the trial court, calling for the children to visit with him in New Jersey at seven intervals in the 2009-10 school year, with one pick-up and drop-off in California. The proposal envisioned that the children would fly without their mother, utilizing the airline escort services. The proposed plan was silent as to which parent would bear the children's bicoastal transportation costs. The proposed visitation plan did not address telephonic or other forms of regular contact with the children.
The record does not contain a competing visitation plan tendered by defendant, although defendant evidently objected to the terms of plaintiff's proposed plan.
The parties also disputed the terms for listing the marital residence for sale. As we understand it from the record, plaintiff objected both to the court's selection of a sales agent and the particular listing price that the agent recommended.
Prior to the February 17, 2009 resumed trial date scheduled on the open issues, defendant's counsel served a trial subpoena on plaintiff. Concurrently, plaintiff submitted correspondence to the court, seeking to have the proceedings on February 17 stayed pursuant to the Servicemember's Civil Relief Act, 50 U.S.C.A. App. § 532 ("the SCRA"), and also under the New Jersey Soldiers' and Sailors' Civil Relief Act of 1979, N.J.S.A. 38:23C-1 to -26.
In his letter to the court seeking a ninety-day military stay, plaintiff asserted that he was mobilized on December 12, 2008 with "the 3rd Battalion[,] 312th Regiment [and] assigned as the 72nd FA Brigade Safety Officer at Fort Dix, New Jersey through the period ending 31 May 2009." Plaintiff stated that he remained "on call by [his] command if an emergency arises involving members of this command or those under its command or control." Plaintiff further explained that he had exhausted his military leave time to visit with the children during the Christmas holiday and that "at this time leave is not authorized for my appearance before the [c]court." Plaintiff represented that his mandatory removal date from the service, if he were not promoted, was May 31, 2009, and that he expected to be available for court proceedings after that date upon his military retirement. Plaintiff did assert that he would "continue to engage the defendant in ongoing efforts at resolving the issues of equitable distribution, attorney fees, visitation and support to hopefully preclude the requirement for a trial to completion of this matter."
Pursuant to the requirements of Section 522(b)(2)(B) of the SCRA, plaintiff also tendered a separate letter dated February 6, 2009 on Army letterhead from his commanding officer at Fort Dix, who is also a Lieutenant Colonel. The commanding officer confirmed that plaintiff "is serving in a position that requires his availability in response to safety procedures, training and evaluation, as well as accident reporting, recording, and, if needed, investigation." The commanding officer further stated that plaintiff is "to be on call by his command if an emergency arises," and that plaintiff's "current military duty prevents his appearance in the matter currently pending before Your Honor." In addition, the commanding officer confirmed that plaintiff had insufficient leave time accumulated and "at this time leave is not authorized for his appearance before the [c]court."
Defendant opposed plaintiff's application for a military stay. After considering the correspondence from plaintiff and defendant's opposition, the trial judge declined to stay the February 17 proceedings. In a subsequent written decision, the judge found that the two statutory predicates for a stay under the SCRA had been supplied by the letters from plaintiff and his commanding officer. However, the judge also noted that plaintiff had fully participated in the custody/removal trial without a conflict with his military responsibilities, and that he continued to be represented by counsel. The judge also noted that plaintiff was affirmatively prosecuting an appeal of the court's relocation order. Given the chronology, the judge ruled that plaintiff was equitably estopped from obtaining a military stay, or had waived by his conduct his right to obtain such a stay.
Having denied the stay request, the judge went forward with the proceeding on February 17 in plaintiff's absence but with the presence of both counsel. The judge took testimony from the court-appointed real estate agent. The judge considered and rejected plaintiff's stated opposition to a listing at the price recommended by the court-appointed realtor. Following that proceeding, the judge entered an order setting the listing price for the marital home at $479,900, and requiring the parties to execute a listing agreement at that price within two days.
After plaintiff failed to sign the listing agreement, the court issued another order on February 20, 2009, directing, among other things, that the parties' respective counsel be appointed as attorneys-in-fact for purposes of the listing agreement. The order also permitted defendant to access $36,000 in the parties' equity line of credit, without prejudice. Additionally, the order scheduled three days for trial of the remaining issues in July 2009. In a companion order, also entered on February 20, 2009, the court ordered plaintiff to reimburse defendant $400 for travel costs incidental to her trial appearance in New Jersey, and for the parties and counsel to conduct a four-way conference to address the issues of increasing pendente lite support and increasing the available credit line on the home equity loan.
With these matters at the trial level still outstanding, plaintiff moved to this court for leave to appeal the trial court's various orders dated February 17 and 20, 2009. He argued that the trial judge erred in denying him a military stay of the proceedings that had led to these orders. Plaintiff also specifically sought interlocutory review of the court's rulings appointing counsel as attorneys-in-fact to execute the listing agreement and to withdraw funds from the home equity loan on the marital premises.
On April 1, 2009, this court granted plaintiff's motion for leave to appeal the orders of February 17 and 20. Subsequently, plaintiff moved for a stay of the trial court's orders pending appeals, which this court granted on May 11, 2009.
In his related appeals, plaintiff seeks reversal of the trial court's determinations concerning custody and removal of the children to California. He also seeks reversal of the trial court's February 2009 orders denying him a military stay and dealing with the sale of the marital home and the home equity account. We now consider those arguments.
We first address the trial court's award of primary residential custody to defendant. It is well-settled that in decided custody disputes, "the primary and overarching consideration is the best interest of the child." Kinsella v. Kinsella, 150 N.J. 276, 317 (1997); see also Sacharow v. Sacharow, 177 N.J. 62, 80 (2003). The Legislature has elaborated upon this best-interest standard by prescribing in N.J.S.A. 9:2-4(c) thirteen non-exclusive factors to be considered by the court in making a custody determination.
We are equally mindful that our review of custody determinations by Family Part judges, particularly after they have conducted trials or plenary custody hearings, is circumscribed. As a general matter, in light of the Family Part's special expertise, appellate courts must accord particular deference to fact-finding in family cases, and to the conclusions that logically flow from those findings. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). We must give due regard to the trial judge's credibility determinations and "feel for the case" based upon the opportunity of the judge to see and hear the witnesses. Cesare, supra, 154 N.J. at 411-12. See also Pascale v. Pascale, 113 N.J. 20, 33 (1988). More specifically, as to the custodial issues before us, the conclusions of trial judges regarding child custody are "entitled to great weight and will not be lightly disturbed on appeal." DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976); see also Sheehan v. Sheehan, 51 N.J. Super. 276, 295 (App. Div.), certif. denied, 28 N.J. 147 (1958).
Plaintiff contends that the trial judge erred in designating defendant as the parent of primary residential custody and in rejecting plaintiff's request for joint residential custody on an equal-time basis. Among other things, plaintiff argues that: (1) the court unreasonably relied upon the expert opinions of Dr. Hagovsky; (2) Dr. Hagovsky's evaluation process was biased, flawed and inadequately considered plaintiff's input concerning the children's best interests; (3) the expert and the court overlooked plaintiff's substantial recreational and instructional activities with the children; (4) the expert and the court failed to follow up on medications that defendant was taking; (5) the court gave excessive weight to its interviews with the children, suggesting that the older son was impressionable and may have been unduly influenced to try to make his mother happy; and (6) the court overestimated defendant's willingness to cooperate in visitation. Plaintiff also claims that he was unfairly penalized because of his protracted absence from the household while on active military duty.
Having fully considered plaintiff's arguments, and mindful of our deferential standard of review, we are satisfied that the trial judge's custodial determination is reasonable and adequately supported by the evidence in the record. We are unpersuaded that Dr. Hagovsky was unfairly biased against plaintiff or that his assessment process was insufficient to justify his conclusions. The trial judge methodically examined the expert's recommendations and considered the counterpoints raised by plaintiff in the cross-examination of the expert and in plaintiff's own testimony. The judge did not act as if he were bound by the expert's views, see Carey v. Lovett, 132 N.J. 44, 64 (1993), and he thoughtfully considered and weighed the record as a whole. The discrete criticisms levied by plaintiff about the expert proofs do not require the custody decision to be set aside. Moreover, plaintiff did not avail himself, or attempt to avail himself, of the right to present a competing expert who might have challenged Dr. Hagovsky on his core custodial recommendations.
The trial court specifically found that plaintiff and defendant are both fit parents. We concur in that assessment from our own, more distant, review of the record. The question then becomes how their custodial responsibilities concerning the children are divided. The judge's resolution of that issue is a reasonable one, particularly in light of defendant's prior ongoing role as the children's primary caretaker, and the unfortunate persistent friction between the older son and plaintiff about his attendance in the Ukranian church and other matters.
We reject plaintiff's contention that the court was unduly swayed by the in-camera interviews with the children. The judge reasonably discounted the stated preferences of the younger son because of his age. As to the older son, the judge fairly considered--but only as one of thirteen statutory factors--the older son's preference to live with his mother in California. See, e.g., Wilke v. Culp, 196 N.J. Super. 487, 498 (App. Div. 1984) (underscoring the value of the stated custodial preferences of children who are mature and intelligent enough to express themselves), certif. denied, 99 N.J. 243 (1985); Lavene v. Lavene, 148 N.J. Super. 267, 272 (App. Div.), certif. denied, 75 N.J. 28 (1977). The judge reasonably found that the older son, who was then age ten, was sufficiently mature to reason and to express his desires. Significantly, the judge found the older son's reasons to be "fairly articulate," "well grounded" and "based on facts."
The judge also appropriately considered the presumptive value in keeping siblings together in the same primary residence, where feasible. See S.M. v. A.W., 281 N.J. Super. 63, 71 (App. Div.), certif. denied, 142 N.J. 571 (1995); see also N.J.S.A. 9:2-4 (recognizing sibling relationships as a custody factor).
We are unpersuaded that the custodial determination unfairly hinged upon plaintiff's absence caused by his military service. Plaintiff's service to his country in Iraq and the United States is laudable and worthy of recognition. We are also mindful that plaintiff's most recent military call-ups were involuntary and that he had no choice but to leave his children and serve. He cannot be penalized for this in the custodial and removal analysis. Even so, we do not perceive that the determination of primary residential custody would have been any different if plaintiff had remained continuously in New Jersey. The trial judge made a discretionary assessment as to which parent would best serve as a principal caretaker, one which is reasonably supported by the factual and expert proofs.
The balance of plaintiff's arguments challenging the custody ruling lack sufficient merit to warrant comment. R. 2:11-3(e)(1)(E).
That being said, we do agree that it is vital that the sons' relationship with their father be maintained and fostered, and that, to that end, a feasible and comprehensive parenting-time plan be set forth in a court order. We shall discuss the necessity for such a plan further in Part III, infra, in our discussion of the removal issues.
For these reasons, the court's decision awarding primary residential custody to defendant is affirmed.
We turn to the trial court's decision to permit defendant and the children to relocate to California. Because the children are natives of New Jersey, judicial approval was required to authorize their relocation to another state. See N.J.S.A. 9:2-2. As we have already noted, the seminal and controlling precedent on this issue is the Supreme Court's opinion in Baures v. Lewis, supra, 167 N.J. at 91.
The initial question to be resolved on an application to remove children from the jurisdiction of New Jersey "is whether the physical custodial relationship [between] the parents is one in which one parent is the 'primary caretaker' and the other parent is the 'secondary caretaker.'" O'Connor v. O'Connor, 349 N.J. Super. 381, 385 (App. Div. 2002). If the court finds the custodial relationship is such, then the parent's removal application "must be analyzed in accordance with the criteria outlined in Baures, supra, 167 N.J. at 116-17[.]" O'Connor, supra, 349 N.J. Super. at 385. Because we have affirmed the court's designation of defendant as the primary caretaker and plaintiff as the secondary caretaker, the removal analysis here is therefore guided by the Baures standards.
Under Baures, the parent seeking to relocate the children has the initial burden to "produce evidence to establish prima facie that (1) there is a good faith reason for the move and (2) that the move will not be inimical to the child's interests. Included within that prima facie case should be a visitation proposal." Baures, supra, 167 N.J. at 118. Once the moving party establishes a prima facie case, "the burden of going forward devolves upon the non-custodial parent who must produce evidence opposing the move as either not in good faith or inimical to the child's interest." Id. at 119. In deciding the ultimate issue of removal, the Supreme Court instructed that: the court should look to the following factors relevant to the plaintiff's burden of proving good faith and that the move will not be inimical to the child's interest: (1) the reasons given for the move; (2) the reasons given for the opposition; (3) the past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move; (4) whether the child will receive educational, health and leisure opportunities at least equal to what is available here; (5) any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location; (6) whether a visitation and communication schedule can be developed that will allow the non-custodial parent to maintain a full and continuous relationship with the child; (7) the likelihood that the custodial parent will continue to foster the child's relationship with the non-custodial parent if the move is allowed; (8) the effect of the move on extended family relationships here and in the new location; (9) if the child is of age, his or her preference; (10) whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent; (11) whether the non-custodial parent has the ability to relocate; (12) any other factor bearing on the child's interest. [Id. at 116-17].
See also Barblock v. Barblock, 383 N.J. Super. 114 (App. Div.), certif. denied, 187 N.J. 81 (2006) (applying the Baures removal criteria).
Plaintiff argues for the first time on appeal that our Supreme Court's explication of relocation law in Baures is unconstitutional, and that it improperly exalts a custodial parent's right to travel over a non-custodial parent's right to maintain a relationship with his or her children. Because this constitutional argument was not presented to the trial court, we decline to address it. Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973). Moreover, as an intermediate appellate court we are bound to follow the precedent of Baures unless the Supreme Court instructs us otherwise. State v. Hill, 139 N.J. 548 (App. Div. 1976). By so stating, we do not mean to suggest that we agree with the argument or take a position on it.
Turning to the merits of the trial court's removal analysis, we are satisfied that the record adequately supports the trial judge's finding that the first prong of Baures is satisfied, i.e., that defendant has demonstrated a good-faith basis for wanting to move with the children from New Jersey to California. Defendant is not originally from New Jersey, and her parents and sister reside in California. Defendant was not employed in this State at the time of trial and has schooling and other opportunities in California. The children have a close and well-developed relationship with their maternal grandparents in California. The trial judge had ample grounds to conclude that defendant's desire to move nearer to her parents and sister on the West Coast is bona fide and reasonable.
The second Baures prong, focusing upon the children's best interests, raises, as it often does in hotly-litigated removal cases, more difficult considerations. The trial judge provided a thoughtful and detailed analysis of most of the specific Baures factors in reaching his ultimate decision that relocating the children to California would not be inimical to their best interests.
However, we are concerned in two critical respects about the completeness of the trial judge's analysis: (1) the absence of a detailed court-ordered parenting plan, including scheduled visitation and communication involving plaintiff and the children, and (2) a careful review of the feasibility of such a plan and a critical evaluation of whether the plan will sufficiently foster the children's interactions and relationships with their father.
The court in Baures emphasized the importance of having in place a viable parenting plan that sufficiently promotes visitation and contact with the non-custodial parent. Although a "mere change, even a reduction, in the non-custodial parent's visitation is not an independent basis on which to deny removal," visitation remains "one important consideration relevant to the question of whether a child's interest will be impaired, although not the only one." Baures, supra, 167 N.J. at 117. "Visitation is not an independent prong of the [Baures] standard, but an important element of proof on the ultimate issue of whether the child's interest will suffer from the move." Id. at 122.
The Court in Baures also underscored the "importance of mutual efforts to develop an alternative visitation scheme that can bridge the physical divide between the non-custodial parent and the child." Id. at 117. "Innovative technology" such as e-mail and other Internet connections should be considered, as well as more traditional measures such as promoting the non-custodial parent's connection with the child with visitation during school breaks and vacations and daily phone calls. Id. at 118. As the Court further instructed, "[w]hat is necessary is that communication and visitation is extensive enough to maintain and nurture the connection between the non-custodial parent and the child." Ibid. (emphasis added).
In the present case, we were dismayed to learn that there is still no parenting time order in place, despite the fact that the children relocated to California nearly a year ago. It was also represented to us that the children have had only limited time with their father since they moved to California.
We appreciate the trial judge's initial desire to provide the parties with an opportunity to attempt to agree on a parenting plan by mutual consent. Unfortunately, no such consent was attained and defendant rejected the post-trial parenting plan suggested by plaintiff.
It is apparent from the record that the trial judge intended to resolve the open parenting time issues when the trial was scheduled to resume in February 2009. However, a hearing on those issues did not occur. The reasons why are not entirely clear, but it appears that the court was disadvantaged by plaintiff's absence from the court in February 2009 due to his military responsibilities. In addition, there may have been some misunderstanding about the Family Part's jurisdictional authority to address visitation and parenting issues, once this court had granted leave to appeal in April 2009 and had issued a stay in May 2009. Neither party filed a motion for a limited temporary remand to the trial court to resolve the open parenting time issues while the other issues on appeal were being briefed. In any event, the absence of a parenting plan is a critical omission, and it must be addressed and resolved in the Family Part forthwith.
The absence of a detailed and comprehensive court-sanctioned parenting plan here impairs the "best interests" analysis required under Baures. In his oral opinion analyzing the removal factors, the judge observed, in rather general terms, that:
[As to] whether a visitation and communication schedule can be developed that will allow the non-custodial parent to maintain a full and continuous relationship with the child. I do believe that is not only possible, but that is desirable. And I think that can be done. Dr. Hagovsky proposed something that makes sense. Mr. Hrycak's, which was put into evidence, presupposed parenting when he was in Cranford and the children were in Cranford. But I believe that Dr. Hagovsky's suggestion that any big break of five days or more there should be parenting, and Ms. Hrycak may initially have to fly in with the children to New Jersey, and Mr. Hrycak may, on occasion, fly into California. And parenting can take place on both coasts. And they are large blocks of time, such as summer or... maybe [P]resident's week or whatever, Mr. Hrycak could have them.
I also believe the parties could communicate by e-mail. [The older son] and I think [the younger son] now probably could do e-mail, as long as the e-mails are not... long-winded I think.
If they're age appropriate -- and we can even add webcams. There's, there's, so many things can be done today with technology, that I don't think that's an impediment.
These are all concepts worthy of consideration, but need to be developed in far more specific terms.
The present record does not confirm that it is truly feasible for the children to have such regular and lengthy bicoastal flights, whether such travel can be reasonably accommodated by plaintiff's work schedule, defendant's obligations at home, and the children's academic, social, and recreational commitments in California. It is also unclear which parent will be financing these trips and their affordability. The details of the technology arrangements, such as e-mail and web-cam contact, also have yet to be established. Given the long distance involved in this case, it would have been preferable for a court-sanctioned parenting plan to have been in place before removal was finalized and the children were relocated 3,000 miles away.
Apart from these pragmatic concerns, the present record does not adequately enable us to ascertain whether, as Baures requires, the visitation scheme will realistically "allow the non-custodial parent to maintain a full and continuous relationship with the child[ren]." Id. at 116-17. Dr. Hagovsky and the trial judge believed that the broad concepts discussed (e.g., maximizing visits with plaintiff over school vacations and four-day weekends; using technology; and so on) will achieve that goal. That is not yet confirmed by the present record, and cannot be until a detailed and specific parenting plan is devised and adopted.
For these reasons, we decline to pass ultimate judgment on the trial court's ruling on the second prong of the removal analysis, until an updated plenary hearing is held in the Family Part on removal and visitation issues, a parenting plan is established, and the trial court re-examines the removal issues in light of those important details. We therefore remand this matter for that purpose, on the condition that the court conduct a case management conference within ten days to schedule such a hearing and to determine if any supplemental discovery is warranted. An interim parenting plan shall be ordered within thirty days and a final parenting plan shall be ordered after the completion of the remand hearing. As part of the remand hearings, the trial judge should reassess whether, in his view, the relocation of the children to California continues to be in the children's best interest and whether the parenting plan adequately fulfills the objectives of Baures.
The remand on these relocation and parenting time issues shall be completed within ninety (90) days, unless extended by mutual consent of the parties or unless the trial court finds good cause to order such an extension. Upon the completion of the remand, either party may seek review of the court's ultimate ruling from this court, but we shall not retain jurisdiction. Additionally, the remaining financial issues and other open issues in the divorce shall be tried and/or resolved, and a final judgment of divorce issued.
Lastly, we briefly comment upon the military stay issues raised by plaintiff in his related appeal. Plaintiff contends that the federal SCRA, as amended since 2003, is mandatory in nature and that it requires a stay once the two letters required under 50 U.S.C. App. § 532 are furnished to the court by the soldier who is on active duty. See also Hernandez v. Hernandez, 906 A.2d 429 (Md. Ct. Spec. App. 2006); Cole v. Cole, 971 So. 2d 1185, 1188 (La. Ct. App. 2007); In re A.R., 88 Cal. Rptr. 3d 448, 454-57 (Cal. Ct. App. 2009). He also seeks relief under the parallel New Jersey statute. Defendant responds that the federal statute is not mandatory, and that the court still has the discretion, even under the post-2003 amended version of the SCRA, to deny a stay on equitable grounds.
We need not resolve this thorny issue in the present appeal because the question is mooted by plaintiff's retirement from the Army in May 2009, and also by virtue of this court's issuance of an appellate stay that same month, which prevented the forced sale of the marital premises. Now that plaintiff is out of the military, he is able to attend and participate in court hearings, as he did at oral argument on this appeal.
Consequently, we remand the issues decided in plaintiff's absence at the proceedings on February 17 and 20, 2009 for further consideration, in anticipation that plaintiff and his attorney will now participate in such proceedings. Of course, the issues relating to the marital home will have to be updated in light of the removal issue and current economic conditions.
Affirmed in part, and remanded in part. We do not retain jurisdiction.