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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...