On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-868-07Y.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2010
Before Judges Carchman and Waugh.
Plaintiff appeals from an order of the family part granting defendant's motion to be designated as parent of primary residence (PPR) and denying plaintiff's motion for custody of the parties' minor child. We agree with plaintiff that the judge erred by failing to conduct a plenary hearing to address the child's removal from New Jersey to reside in Pennsylvania and which parent is properly the PPR. But, we conclude such error was harmless, that the judge had sufficient information before him to resolve the issue and that the hearing would not have provided additional substantive information relative to the issues in dispute. Accordingly, we affirm.
These are the relevant facts. The parties were married in October 2002 and divorced by judgment dated May 1, 2007. One child was born of the marriage, a daughter, born January 2004. During the early years of their marriage, defendant was on active military duty. In their Property Settlement Agreement (PSA), the parties included a Parenting Time Agreement, which essentially allowed for equal time for each parent with the child. At the time, both parties resided a short distance from each other in New Jersey.
Since the divorce, the parties have had various disputes regarding where to enroll the child in school as well as payment of day care, schooling and health benefits. In addition, various motions in the family part have addressed claims alleging disparagement, as well as issues focusing on parenting time. As to the latter, the parties entered into a mediation agreement in April 2008 resolving many of these issues.
In 2008 and 2009, circumstances changed as defendant enrolled in nursing school,*fn1 entered into a relationship with Benjamin Bonzanto (whom she subsequently married) and moved to Warrington, Pennsylvania, approximately thirty miles from plaintiff's residence. Defendant, Bonzanto and the child reside in Pennsylvania where defendant enrolled the child in school. Plaintiff has visitation with the child on a regular basis.
After extensive motion practice regarding, among other issues, custody and parenting time with the child, the motion judge ordered a Custody Neutral Assessment (CNA). The CNA captured important data that reflected the conflict between the parties as to who should serve as the PPR.
The CNA described the parties' living arrangements and employment statuses:
[Plaintiff] (31) resides in a three bedroom home he owns with his brother in Riverside along with his parents, two brothers (one younger brother, 16, and an older brother who is moving out and getting married) and a sister. [Plaintiff], his daughter, and his younger brother sleep in the basement area of their home. For the past three years, [plaintiff] has been working as a truck driver and "owner operator" for Triangle Transport Monday through Friday 5am-5pm (his hours may vary depending on location of deliveries). [Plaintiff's] family members care for his daughter when he is working.
[Defendant] (26) resides in a two bedroom apartment in Warrington, Pa., along with her husband Ben (25). They were married December 21, 2009. [Defendant] is a full time nursing student at Jefferson University and is due to graduate in May 2010. Her hours are Monday and Tuesday 9am-4pm, Wednesday and either Thursday or Friday 8am-2 or 3pm. [Defendant] takes daughter to the school bus each morning Ben is off each Monday and Tuesday and is there to care for [the child] after school until [defendant] returns home. The grandmother of one of [the child's] kindergarten classmates cares for her after school two days a week until 2pm when Ben arrives home.
After providing an extensive and comprehensive assessment of the positions of the parties and interviewing the child, the CNA reached the following conclusions:
The child in this case, [the child], who will be six by the end of this month, has entered formal schooling beginning with kindergarten this year. The shared arrangement used by [plaintiff] and [defendant] can not be continued primarily due the distance between their two homes. Both parents contend that they are better equipped to be their daughter's primary residential parent. Contributing to this matter, are the differences in each parent's perspective of their past and how that affects the primary issue at hand. For example, [plaintiff] sees defendant] as the party type who became uninterested in being committed to their marriage or in being a mother. In contrast, ...