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Morgan v. Morgan

April 29, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1528-05.

Per curiam.


Argued: December 9, 2009

Before Judges Axelrad, Fisher and Sapp-Peterson.

Defendant Kristin Leary (mother) appeals from an order of the Family Part entered on June 13, 2007, denying her motion to relocate with her minor children to Massachusetts. Plaintiff Paul Morgan (father) cross-appeals from the court's April 12, 2007 order denying his "motion in limine" and finding, in particular, that the parties did not have de facto shared physical custody of their minor children. We reverse and remand on mother's appeal and affirm on father's cross-appeal.

Father, presently forty-four years old, was born in New Jersey and graduated from college in Massachusetts. Mother, presently age forty-two, was raised and graduated from college in the Boston area, where her parents, siblings and extended family still reside. The parties were married on April 11, 1992, and took up residence in New York City, where father had been living. They bought a house in Madison, New Jersey, in January 2001, where mother continues to reside with their two daughters, born in 1998 and 2001.

Father left the marital home in August 2004. He moved to Chatham for a short period of time, then returned to Madison in close proximity to the marital home. The parties were divorced on August 16, 2005, incorporating a property settlement agreement (PSA) signed in March 2005. The PSA provided the parties would share joint legal custody of the children and designated mother as parent of primary residence (PPR). Pursuant to the PSA, which the parties consistently followed without apparent problem, father had parenting time every other weekend from Friday after school to Monday drop-off at school, every Tuesday for dinner, and overnight every Thursday (or through the weekend if that was how the schedule fell).

On November 23, 2005, father filed a motion for a change of physical custody based on allegations of changed circumstances, seeking to become the PPR. On January 11, 2006, mother filed a cross-motion for permission to relocate to Massachusetts based upon her engagement to James Mambro, a Boston resident, and to be closer to her extended family. Following oral argument on January 20, 2006, the court denied father's motion and directed a plenary hearing with regard to the relocation issue, memorialized in an order of that date. The court rejected father's argument that the removal issue should be evaluated according to a best interests analysis required for change in custody and directed that Dr. Edwin Rosenberg, a forensic psychologist, be appointed to perform the relocation evaluation pursuant to the twelve Baures factors. See Baures v. Lewis, 167 N.J. 91 (2001). Dr. Rosenberg's August 26, 2006 report, which applied the Baures standard, recommended that mother be permitted to move to Massachusetts with the children when the school year ended in June 2007.

Father then retained his own clinical psychologist, Dr. Amie Wolf-Mehlman, who, according to father's charge to her, evaluated the issues on a best interests standard based on the assumption there was de facto shared physical custody and, alternatively, according to the twelve Baures criteria. In her December 27, 2006 report, Dr. Wolf-Mehlman recommended that father be PPR and recommended against the relocation. For the next several months, discovery continued and the deposition of the parties and both experts were taken.

About a month before the relocation hearing was to commence on April 16, 2007, father filed a "motion in limine," seeking a determination as a matter of law that the best interests (change in custody) standard should be applied as opposed to the Baures relocation standard previously determined by the court to be the law of the case. Mother, of course, opposed the motion. The court heard oral argument on April 5, 2007, and denied father's application in a written order and statement of reasons read to the parties on the record on April 12, 2007. The court denied father's request for a stay of the hearing by order of May 2, 2007.

Father then sought leave to appeal the court's April 12, 2007 order. On May 2, 2007, the trial court submitted a letter to the Appellate Division supplementing its April 12, 2007 oral decision, pursuant to Rule 2:5-6(c). Father then filed an emergent application with the Appellate Division requesting a stay of the removal hearing, which we denied by order of May 10, 2007.

The plenary hearing was conducted over five days. On June 13, 2007, the court denied mother's motion to relocate in a written decision and order of that date. Mother appealed the denial of her motion to relocate. Father withdrew his motion for leave to appeal the April 12, 2007 interlocutory order and challenged the order in his cross-appeal.

Mother raises the following arguments on appeal:


A. The Findings of Fact and Legal Conclusions of the Trial Judge are Without Sufficient Basis to Support the Trial Court's Decision.

1. The Trial Court Failed to Properly Analyze and Apply the "Good Faith" Prong of the Baures' Test and the Trial Court's Finding That the Defendant's Reasons for Relocation were not "valid" is Against the Weight of the Evidence.

2. The Trial Court Erred in Giving More Weight to the Plaintiff's Expert and Simultaneously Discounting or Ignoring the Court Appointed Expert as to Defendant's Emotional Stability and Personality Traits.

a. Trial Court's reliance on inadmissible hearsay evidence was error.

b. Trial Court's mistakes of fact and misconstruction of Dr. Rosenberg's report and testimony were error.

c. Dr. Wolf's report and testimony do not support the Trial Court's finding that Defendant is emotionally unstable.

i. Defendant's MCMI-III results do not indicate Personality Disorder or Psychopathology.

ii. Trial Court erred in giving too much weight to the statements of the marriage therapists.

iii. Trial Court failed to properly analyze the Plaintiff's opposition which was against the weight of the evidence and insufficient under Baures and its progeny.

3. The Trial Court's Finding That the Defendant Would be Reluctant to Permit Plaintiff to Have a Meaningful Relationship with the Children upon Relocation Is Against the Weight of the Evidence.

4. The Trial Court Abused its Discretion in Finding That the Plaintiff Does Not Have the Ability to Relocate to New England.

Father argues the following in support of his cross-appeal:


A. The Trial Court Erroneously Treated Plaintiff's In Limine Motion As A Motion For Reconsideration.

B. The Trial Court Erroneously Concluded That Its January 20, 2006 Order Was Correct.

1. The trial court misconstrued the law concerning de facto shared custody.

2. The trial court erroneously rendered summary conclusions on the basis of competing certifications, without the benefit of a plenary hearing.

C. Plaintiff's Motion In Limine Should Have Been Granted Because Correct Application of New Jersey Law Compels The Conclusion That The Parties Have De Facto Shared Custody, Or That A Hearing Was Required To Decide The Issue.

D. The Trial Court's Proper Consideration of Plaintiff's Motion In Limine Was Also Hampered By Its Confusion About the Function Of Experts Generally.

E. The Trial Court Erroneously Concluded, Again Without Benefit Of A Hearing, That As A Matter Of Law, Shea v. Shea, 384 N.J. Super. 266 (Ch. Div. 2005), Was Not Applicable To The Present Case.


We first recite the law on relocation, which is well established, in order to put the facts of this case into context. 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. The initial question to be resolved on a removal application is the "extant status of custody of the parties' children." Barblock v. Barblock, 383 N.J. Super. 114, 121 (App. Div. 2006). If the custody situation is a "rare de facto 'shared parenting' arrangement, one in which each parent essentially performs an equal caretaking role," the court analyzes the removal application under the stricter change-of-custody test of O'Connor v. O'Connor, 349 N.J. Super. 381, 399-400 (App. Div. 2002). Barblock, supra, 383 N.J. Super. at 122. Under that standard, "the party seeking the change in the custodial relationship must demonstrate that the best interests of the child[ren] would be better served by residential custody being vested primarily with the relocating parent." O'Connor, supra, 349 N.J. Super. at 398. See also Chen v. Heller, 334 N.J. Super. 361, 380-81 (App. Div. 2000).

If, conversely, the physical custodial relationship among the parents is such that one parent serves as the primary caretaker and the other parent the secondary caretaker, then the custodial parent's request to relocate the children is governed by the two-part test of Baures. Barblock, supra, 383 N.J. Super. at 121; O'Connor, supra, 349 N.J. Super. at 385. Baures requires that removal be granted where the preponderance of the credible evidence demonstrates the custodial parent has a good faith reason for the move and the move will not be inimical to the children's interests, i.e., they will not suffer from it.

Baures, supra, 167 N.J. at 118, 122; Barblock, supra, 383 N.J. Super. at 121.

In describing the template for a removal case, Justice Long noted that it is "entirely different from an initial custody determination," in which "ultimate judgment is squarely dependent on what is in the child's best interests." Baures, supra, 167 N.J. at 115. In a removal case, however, "the parents' interests take on importance" with "special respect" being accorded the "liberty interests of the custodial parent to seek happiness and fulfillment because that parent's happiness and fulfillment enure to the child's benefit in the new family unit." Ibid. Social science research has uniformly confirmed, and our cases have consistently followed the general principle that "what is good for the custodial parent is good for the child." Id. at l06. See also McCoy v. McCoy, 336 N.J. Super. l72, 181 (App. Div. 2001). The cases also "underscore the importance of the child's relationship with the non-custodial parent and require a visitation schedule sufficient to support and nurture that relationship." Baures, supra, 167 N.J. at ll6.

With these principles in mind, the Court in Baures enumerated the following twelve factors that are relevant to a trial court's assessment of a relocation application:

(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 ...

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