May 18, 2010
JOHN DAVID WILLIAMS, PLAINTIFF-RESPONDENT,
ROSINA GRAVANO WILLIAMS, N/K/A ROSANIA GRAVANO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1956-03C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 13, 2010
Before Judges Carchman and Parrillo.
Defendant Rosania Gravano appeals from a September 14, 2009 order of the Family Part denying her request for physical custody and allowing plaintiff John Williams to relocate with their eleven-year old son to Minnesota, and from a December 15, 2009 order fixing her child support obligation at $178 weekly.
We reverse the child support determination and remand on that issue. We affirm in all other respects.
By way of background, the parties were married on April 2, 1997 and had one child, a son, born in 1997. They separated in 1999, and the child has been living with plaintiff ever since. The parties divorced by final judgment (FJD) dated June 27, 2003. Defendant did not participate in the divorce proceedings, and the FJD awarded plaintiff "sole legal and residential custody," further providing that "defendant (mother) is terminating her parental rights."
According to plaintiff, in the years immediately following their separation, defendant maintained very little contact with her son and had not been involved in his education. Sometime later, however, the parties shared parenting time from 2003 to 2005, when defendant moved to Florida with her then boyfriend, now husband. Thereafter, the parties could not agree upon parenting time arrangements without court involvement, and orders allowing defendant "reasonable and liberal contact with [the child]" were issued in February and May 2006. A February 3, 2006 order vacated the terms of the FJD terminating defendant's parental rights. In January 2008, defendant moved back to New Jersey, and until June 2009, she "essentially saw [the child] whenever [she] wanted." According to plaintiff, not until 2008 had defendant begun paying any child support.
In July 2009, plaintiff remarried and his wife was living in Minnesota, where she has a home and had been working as an adjunct professor at a university for the last ten to fifteen years. Plaintiff had been recently laid off from his job in New York City and, he claimed, had been offered better-paying employment in Minnesota. According to plaintiff, he believed that as sole custodian, he was free to move to Minnesota with his son, and when he discussed this over the phone with defendant, she allegedly told him "she was ok with it." Plaintiff then offered her more parenting time than she had under the plan in effect since 2006.
Defendant disputed plaintiff's version of his move to Minnesota. According to defendant, she first learned of plaintiff's intention from her son in June 2009. When she confronted plaintiff, he supposedly told her that she could not stop him. Nevertheless, plaintiff sought defendant's consent, which she refused. On August 17, 2009, plaintiff flew with his son to Minnesota, ostensibly for a job interview, but he later informed defendant that he and the child were permanently relocating there. In view of this incident, which defendant considered to be kidnapping, defendant filed back-to-back orders to show cause in August 2009, seeking return of her son to New Jersey and joint physical and legal custody, respectively.
The Family Part judge held a Baures*fn1 hearing on September 10, 2009, and at the conclusion of that proceeding, interviewed the child, who indicated a clear preference for living with plaintiff. On September 14, 2009, the trial judge orally placed his findings of fact and conclusions of law on the record, which included the following:
As to the issue of removal of the child from the State of New Jersey, the custodial parent must initially show there is an advantage to the parent to move to another State, and that the move is not inimical to the best interest of the child. Both of those prongs have been met. The father indicates that the reason for the move is his marriage, as well as his new employment.
One must look at the [Baures factors] in order to determine what is truly in the child's best interests. The reasons given for the move have previously been addressed. The reasons for the opposition is the mother's feeling that she's losing her relationship with her son, although none has been demonstrated.
Visitation has been extensive during the times when she lived out of State, and there is no reason to believe that she will not have extensive visitation at this time.
The past history of dealings between the parties as far as it bears on the reasons for supporting or opposing the move indicate that there has been some strife between the parties as to visitation, but it has been worked out in an amicable manner.
The child of course will have appropriate educational and health opportunities in Minnesota as he would in New Jersey. There was no evidence presented as to whether the private school that the child is enrolled in is better or worse than the public education system that was available through the mother in Pennsauken, New Jersey.
The child has no special needs or talents that need to be accommodated. The visitation and communication schedule can be developed to allow the non[-]custodial parent to maintain a full continuous relationship with the child.
The father has agreed and has offered the mother to pay for her and her husband to go over the Christmas holidays and spend extended periods of time in Minnesota during the child's vacation. He also agreed to pay for the child to go to spend the Spring recess with his mother in New Jersey. And has agreed to pay for the child to come to New Jersey to be with the mother for an extended period of time, i.e., six or seven weeks, during the Summer recess. I'm sure additional visitations can be worked out between the parties so that both parents have a strong nurturing relationship with the child.
It is at this point that the Court wishes to point out that the parenting skills of both parents have been evident during the interview with the child, who was extremely articulate, poised and verbal during the interview. And clearly indicated his preference of living with the father in Minnesota. And thought that his father's wife was a wonderful person.
There is no question that both parents will continue to foster a close relationship with the non-custodial parent, as well as with the custodial parent.
Number 8 has already been addressed. The non-custodial parent does not have a present ability to relocate to Minnesota.
For those reasons, and for the history displayed, the Court is of the opinion that the parties should have joint custody with the father being the parent of primary residence. And that he should be permitted to take the child to the State of Minnesota to live.
Accordingly, the court's September 14, 2009 order provided for joint legal custody of the child, with plaintiff being the parent of primary residence, granted permission to plaintiff to remove the child from New Jersey to Minnesota, and set parenting time for defendant. Defendant appealed and then moved for summary disposition, which we denied except to remand for the limited purpose of setting forth "in detail the terms and conditions of defendant's parenting time . . . during the child's Christmas, Spring and Summer recess[,]" pursuant to Rule 5:8-5(b). Following remand, the Family Part entered an order on December 15, 2009, specifying defendant's parenting time and requiring her to pay $178 in weekly child support.
On appeal, defendant argues that the court erred in permitting removal of the child from New Jersey and in failing to follow a number of procedural rules related to custody. As to the latter, defendant argues that the court failed to comply with: Rule 5:8-1, requiring a court finding as to whether substantial custody and/or parenting time issues were raised and, if so, to require mediation; Rule 5:8-6, setting out procedures for any interviews of children in custody disputes; Rule 5:8-5(b), requiring specificity in any order or judgment for custody and/or parenting time issues; and Rule 5:5-1, providing for discovery and an opportunity for having an expert do a custody evaluation. Finally, defendant contends the court erred in its calculation of her child support obligation. Save for the last, we reject defendant's contentions.
Under N.J.S.A. 9:2-2, a child cannot be removed from the State without consent "unless the court, upon cause shown, shall otherwise order." To obtain a court order permitting removal, the party seeking to move . . . should initially 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.]
Unlike the "rare de facto 'shared parenting' arrangement" involving joint legal and physical custody where "the removal application must be analyzed under the stricter change-of- custody test[,]" Barblock v. Barblock, 383 N.J. Super. 114, 121-22 (App. Div.) (citing O'Connor v. O'Connor, 349 N.J. Super. 381, 399-400 (App. Div. 2002)), certif. denied, 187 N.J. 81 (2006), where, as here, the movant is the residential custodian, "any sincere, good-faith reason will suffice," and a custodial parent need not establish a "'real advantage' from the move." Holder v. Polanski, 111 N.J. 344, 352-53 (1988); see also Baures, supra, 167 N.J. at 114. Recognizing "the custodial parent's interest in self-determination," Baures, supra, 167 N.J. at 97, the Baures Court noted that "relocation for employment purposes is common" and that "[o]n a personal level, people remarry and move away." Id. at 96.
The Court in Baures established a twelve factor test to determine whether to approve a custodial parent's removal of a child to an out-of-state location:
[I]n assessing whether to order removal, 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. [167 N.J. at 116-17.]
A prima facie showing is necessary before proceeding to a plenary hearing. Id. at 118. However,
The initial burden of the moving party is not a particularly onerous one. It will be met, for example, by a custodial parent who shows that he is seeking to move closer to a large extended family that can help him raise his child; that the child will have educational, health and leisure opportunities at least equal to that which is available here, and that he has thought out a visitation schedule that will allow the child to maintain his or her relationship with the non-custodial parent. [Ibid.]
Once the movant establishes a prima facie case, the burden of going forward then shifts to 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; see also Barblock, supra, 383 N.J. Super. at 126. Thus, for example, a non-custodial parent must show "not just that the visitation will change, but that the change will negatively affect the child." Baures, supra, 167 N.J. at 119. "Indeed, alterations in the visitation scheme when one party moves are inevitable and acceptable." Id. at 117. Similarly, in order to show that the move is inimical to a child's interest based on the effect on extended family relationships, the non-custodial parent would have to demonstrate not just that the child will see extended family less, but that moving away from extended family will negatively affect the child.
In reviewing the trial court's determination in a removal action, a reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record. Even where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and their implications, and thus the traditional scope of review is expanded, we will nonetheless accord deference to the trial court's findings unless they went so wide of the mark that a mistake must have been made.
That deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility.
[MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (internal quotations and citations omitted), stay denied, 551 U.S. 1177, 128 S.Ct. 7, 168 L.Ed. 2d 784 (2007).]
Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters," we accord substantial "deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).
Governed by these principles, we are satisfied that the Family Part's removal decision is supported by sufficient credible evidence and comports with applicable law. Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007). The court found, and defendant does not dispute, that plaintiff's motivation in moving to Minnesota was marriage and employment. His wife resides there with her son and daughter in her own home and is gainfully employed as an adjunct professor at a local university. Plaintiff, on the other hand, had been recently laid off from his job in New York City as a technical analyst for Mount Sinai Hospital and attested to securing employment in Minnesota, where, he claimed, the unemployment rate was much lower and job opportunities more plentiful.
Plaintiff also testified that his son "will have appropriate educational . . . opportunities in Minnesota," where he would be enrolled in a private school, as opposed to the public school system in Pennsauken, where defendant lives. On this score, no evidence was adduced that the child would receive an inferior education in Minnesota, and the trial judge, quite properly, found the educational opportunities at least equal.
Although defendant complained about plaintiff's lack of cooperation in arranging parenting time in the past, the judge found "there is no question that both parents will continue to foster a close relationship with the non-custodial parent, as well as with the custodial parent." Recognizing that "there has been some strife between the parties as to visitation," the judge also noted that it has "been worked out in an amicable manner[,]" citing the extent of defendant's visitation with her son in the past. For instance, the child visited defendant in Florida for five or six weeks in 2006, and for four weeks in 2007. Defendant also admits that when she moved back to New Jersey from Florida, she "essentially saw [her son] whenever I wanted." While visitation is not an independent prong of plaintiff's prima facie case, it is nevertheless "an important element of proof on the ultimate issue of whether the child's interest will suffer from the move." Baures, supra, 167 N.J. at 122. Here, based on the evidence of record, the trial judge concluded that "[v]isitation has been extensive during the times when [defendant] lived out of State, and there is no reason to believe that she will not have extensive visitation at this time[,]" and that a "visitation and communication schedule can be developed to allow the non[-]custodial parent to maintain a full and . . . continuous relationship with the child."
Regarding the effect of the move on extended family relationships, plaintiff, in his pre-trial court-ordered submission addressing each of the Baures factors, assured that "[m]y parents live in [New Jersey] so I will be traveling back to [New Jersey] with my son several times during the year for family visits and he will also be keeping in touch with family members via phone and video chat in-between the actual family visits." Moreover, "with the technology we have available such as computers and the internet, you can literally stay in touch and 'see your family everyday' via webcams, instant messaging, text messaging, text messages, and phone calls which are all excellent ways to stay in touch between live visits." See, e.g., McCoy v. McCoy, 336 N.J. Super. 172, 182 (App. Div. 2001).
In that same submission, plaintiff represented that "[m]y son has resided with me his entire life and is a thriving, happy 11-year old boy. He loves his mother and myself equally, but I also know that he is happy living with me and visiting his mother, as that is how it has always been since he was 2 years old." As noted, the judge also found from his interview that the child expressed a clear preference to live with his father.
Thus, we conclude that plaintiff satisfied his prima facie burden of adducing sufficient, credible evidence that relocation to Minnesota was in good faith and not inimical to the child's interests, and that defendant failed to demonstrate otherwise.
We are also satisfied that none of the procedural deficiencies claimed by defendant warrants a reversal of the removal determination. We emphasize at the outset that the present matter involved the essential issue of removal, as the court, in its August 26, 2009 order, set a date for a Baures hearing and dismissed all other claims. Moreover, the court only requested the parties to submit certifications addressing the Baures removal factors, and did not direct submission of a custody plan/parenting time plan, which is required pursuant to Rule 5:8-5, if there are genuine and substantial issues concerning either custody, parenting time, or both. See also Luedtke v. Shobert, 342 N.J. Super. 202, 218 (App. Div. 2001) (custody plan required for hearing involving change in custody). Furthermore, as noted, this is not a removal case where "the parents truly share both legal and physical custody, [such that] an application by one parent to relocate and remove the residence of the child to an out-of-state location must be analyzed as an application for a change of custody[.]"
O'Connor, supra, 349 N.J. Super. at 385. In any event, despite the August 26, 2009 order, in its September 14, 2009 order, the court, in addition to permitting removal, awarded defendant joint legal custody and parenting time, to which she did not object.
Secondly, defendant never requested many of the procedural mechanisms or tools to which she now claims, for the first time on appeal, she is entitled. For instance, Rule 5:8-1 requires referral to mediation of custody disputes, and if mediation is not successful, an investigation by the Family Division may be ordered. However, not only did defendant never request mediation, but neither custody nor parenting time were genuine and substantial issues to warrant such referral, much less initiation of a full-blown investigation into the parties' character and fitness, economic condition, home life, and criminal history.
Similarly, although Rule 5:3-3(a) allows the court in its discretion to order a mental health examination of any person under its jurisdiction, there is no indication defendant ever requested that her son undergo such an evaluation or that a mental health professional review and assess the judge's interview with the child. In any event, neither Rule 5:8-6 nor Rule 5:8-3 requires that the court order an initial determination by a mental health professional before interviewing the child or order a mental health professional to later evaluate the court's interview. At trial, defendant only objected to an interview on the grounds that "based on his age and maturity level" an interview would be inappropriate. The Family Part judge found that the "child is extremely precocious and is of sufficient age to form an intelligent decision as to whom he should like to live with. And the child has indicated in an interview with the Court, that he wished to live with his father in Minnesota."
Defendant's related claim that the court failed to timely inform the parties of his interview with their son or afford them the opportunity to submit advance questions does have merit. Under Rule 5:8-6,
. . . As part of the custody hearing, the court may on its own motion or at the request of a litigant conduct an in camera interview with the child(ren). In the absence of good cause, the decision to conduct an interview shall be made before trial. . . . If the court elects to conduct an interview, it shall afford counsel the opportunity to submit questions for the court's use during the interview and shall place on the record its reasons for not asking any question thus submitted. . . .
The mandated course is to afford the parties a timely opportunity for input. Here, however, defendant did not request the court delay its interview and permit counsel to submit questions. In any event, both parties were equally deprived of such an opportunity, and defendant consequently suffered no undue prejudice. Moreover, defendant has not demonstrated why the ultimate result would have been different had the opportunity to submit pre-interview questions been extended to both parties. Similarly, with respect to her claim about lack of discovery, Rule 5:5-1, we note that defendant never requested same nor indicated what information produced in discovery might have been material to the Baures analysis.
Defendant next argues that the trial court's orders did not meet the specificity requirement of Rule 5:8-5(b), which provides that "[t]he court shall set out in its order or judgment fully and specifically all terms and conditions relating to the award of custody and proper support for the children." We disagree.
Because the court's September 14, 2009 order simply granted defendant "parenting time a minimum of one-half of the Christmas holidays, the spring recess, and six to seven weeks in the summer," we remanded, for the limited purpose of the entry of an order in compliance with Rule 5:8-5(b) . . . . Specifically, the judge shall set forth in detail the terms of conditions of defendant's parenting time with the child during the child's Christmas, Spring and Summer recess.
After remand, the trial court entered an order of December 15, 2009, which provided:
1. Defendant shall be entitled to parenting time . . . during [the child's] fall recess (i.e. Christmas break) beginning the day after school ends and ending two (2) days before school begins; and
2 . . . . during [the child's] spring recess beginning the day after school ends and ending two (2) days before school begins; and
3. . . . during [the child's] summer recess beginning two (2) days after school ends and ending five (5) weeks thereafter; and
4. Plaintiff shall be responsible for the cost of [the child's] airfare . . .; and
5. Defendant may have additional parenting time with [the child] in Minnesota at her own expense; and
6. Defendant shall pay Plaintiff child support in the amount of $178.00 per week . . . .
With the exception of the child support feature of paragraph 6, we find this order sufficiently specific and detailed in accordance with Rule 5:8-5.
Defendant's further claim that the trial court's order does not specify the custody arrangement is meritless. The September 14, 2009 order states, "[t]he custody of [the child] shall be joint with the father being the parent of primary residence."
Contrary to defendant's assertion, the order does not vest her with joint physical custody.
"[J]oint physical custody" means joint responsibility for minor day-to-day decisions and the exertion of continuous physical custody by both parents over a child for significant periods of time. Although there is no established norm for such custody, experts cite common schedules for a child within a joint physical custody framework as spending three entire days with one parent and four entire days with another parent or alternating weeks or even years with each parent. . . . "[J]oint physical custody" means that the child lives day in and day out with both parents on a rotating basis. Numerous "parenting times" with a child do not constitute joint physical custody; to constitute joint custody, each parent must exert joint legal and physical custody over the child. [Pascale v. Pascale, 140 N.J. 583, 596-97 (1995) (internal quotations and citations omitted).]
See also Beck v. Beck, 86 N.J. 480, 486-87 (1981). Joint custody is rare, and "joint legal custody with physical custody given to only one parent is much more common." Pascale, supra, 140 N.J. at 597. We read the trial court's orders as clearly granting the parties joint legal custody, with plaintiff retaining physical custody.
Lastly, defendant contends the trial court erred in its calculation of her child support obligation. For reasons that follow, we vacate that provision of the December 15, 2009 order and remand for a re-determination of child support.
First, the court's order of August 26, 2009 set a plenary hearing solely on the issue of removal. Plaintiff never formally moved for such relief and the court's September 14, 2009 order, before our remand, contained no such provision. Second, although our December 1, 2009 remand order allowed the judge to "address any additional issues he deems relevant," the Family Part never directed the parties to produce a Case Information Statement, as required by Rule 5:5-2, for any child support determination. Instead, the judge fixed defendant's child support obligation on the basis of the parties' W-2 statements and recent pay stubs. Third, plaintiff maintains, the court's calculation was incorrect because it was based on an income figure of $1500 per week for defendant, when she professed to earn only $750 weekly, and also based on both parties' being single, when in fact, they have each remarried. Fairness dictates the matter be reconsidered based on the most recent requisite information.
The child support feature of the December 15, 2009 order is vacated and the matter remanded for a re-determination in accordance with this opinion. In all other respects, the orders of September 14, 2009 and December 15, 2009 are affirmed.