September 28, 2010
ZORAN MUDRINIC, PLAINTIFF-APPELLANT,
TAMARA MUDRINIC, DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, [defendant] states that she was too young when they married and they grew apart as she matured. [Defendant] adds their cultural differences are a large part of their story.
When considering the issue of residential custody, the interviews between [the child] and her parents revealed two primary matters to consider. First and foremost, [the child] appears to have a loving and strong bond with both her mother and her father. [Plaintiff] and [defendant], although very different in parenting styles, present as dedicated, caring, and attentive parents. The undersigned agrees with [defendant] in that their daughter has the best of both worlds. With the absence of ongoing conflict, [the child] has a mother and father who can offer their daughter different things that could serve to enrich her life. A parenting schedule that continues to foster the relationship between [the child] and both parents would be best in this case.
The second consideration is the schedule of each parent and their availability to their daughter. In this case, [defendant's] schedule lends itself for her to be more available for her daughter. Additionally, based on the information given in this assessment, [defendant] seems to be in the position to engage [the child] in age and peer appropriate activities, as well as be involved in them.
Therefore, it is the impression of the undersigned that a more standard parenting arrangement would work in this case. Specifically, [the child] would be in the primary care of her mother during the school week and alternate weekends. [Plaintiff] would have parenting time with his daughter on alternate weekends and visitation midweek. School breaks and holidays should be shared. During the summer months, the parenting schedule could switch giving [plaintiff] primary residential custody. I do agree with [defendant's] recommendation that some structured summer activities should be arranged while [The child] is with her father during the summer. The idea is for [the child] to develop friendships with other children in her father's neighborhood and to expand her interests and sense of connection there. Vacation time for both parents is also to be outlined.
Thereafter, Judge Terrence Cook considered the findings in the CNA, noting that they were consistent with his findings based on the record, and concluded that the best interests of the child would be served by awarding defendant sole residential custody during the school year and granting a similar custodial arrangement to plaintiff during the summer. He continued the joint legal custody of the parties and, relying on Baures v. Lewis, 167 N.J. 91 (2001), found that the "communication and visitation [shall be] extensive enough to maintain and nurture the connection between the non-custodial parent and the child." Id. at 118. Recognizing that defendant failed to move before the court to permit removal of the child to Pennsylvania, the judge awarded counsel fees to plaintiff. This appeal followed.
On appeal, plaintiff raises a single issue - the judge violated N.J.S.A. 9:2-2 as well as N.J.S.A. 9:2-4(c)and (f) and erred when he awarded defendant PPR status without a hearing. Although the February 26, 2010 order, which is the subject of this appeal, grants PPR status to defendant as well as permitting relocation to Pennsylvania, plaintiff appears to challenge the grant of the PPR status while at the same time urging the reversal of that portion of the order granting relocation. Our consideration of the appeal necessitates that we address both issues.
Our analysis of the change of the child's custodial status and removal requires the application of different factors and considerations. In the first instance, when a change in custody is at issue, the best interests of the child are paramount. Matsumoto v. Matsumoto, 171 N.J. 110, 132 (2002) (citing Baures, supra, 167 N.J. at 115); N.J.S.A. 9:2-4; Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). However, when considering the issue of removal, "the parents' interests take on importance." Baures, supra, 167 N.J. at 115. In considering the issue of removal, the parents' needs and desires are "intertwined with the child's interests." See also Holder v. Polanski, 111 N.J. 344, 350 (1988); Cooper v. Cooper, 99 N.J. 42, 55 (1984).
These differing analyses are tempered by a recognition that where the parties are sharing physical custody, "the removal application effectively constitutes a motion for a change in custody and will be governed initially by a changed circumstances inquiry and ultimately by a simple best interests analysis." Baures, supra, 167 N.J. at 116 (quoting Chen v. Heller, 334 N.J. Super. 361, 381-82 [(App. Div. 2000)). As we recently observed in Barblock v. Barblock, 383 N.J. Super. 114, 122 (App. Div.), certif. denied, 187 N.J. 81 (2006), in an arrangement in which each parent essentially performs an equal caretaking role, the removal application must be analyzed under the stricter change-of-custody test of O'Connor v. O'Connor, 349 N.J. Super. 381, 399-400 (App. Div. 2002). The O'Connor standard focuses solely upon an analysis of the best interests of the children, regardless of the applicant's good faith motivation to relocate. In such instances, "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." Id. at 398; see also Chen v. Heller, 334 N.J. Super. 361, 380-82 (App. Div. 2000). With these principles in the forefront, we address the issues raised by plaintiff.
As in Barblock, here, plaintiff asserts that the judge erred by changing custody without conducting a plenary hearing. Although plaintiff distinguishes between a change of custody dispute and a removal application, the necessity of a hearing is governed by the same guiding principles.
"[A] plenary hearing is not necessary in every case where removal of children is at issue, but rather only where a prima facie showing has been made that a genuine issue of fact exists bearing upon a critical question such as the best interests of the children, interference with parental rights or the existence of a good faith reason to move." Pfeiffer v. Ilson, 318 N.J. Super. 13, 14 (App. Div. 1999). Such factual disputes must bear on the critical issue of the best interest of the child, and must be genuine issues in dispute. Ibid.
While Barblock is a removal case, it did require an assessment of the best interests of the child in the context of a change of custody. As to the necessity of a hearing, we said:
No reported case holds that a plenary hearing is inexorably required to resolve contested applications to relocate a child from the State of New Jersey. To be sure, such evidentiary proceedings usually will be required to sort out competing factual and expert assertions about the merits of the proposed removal. The credibility of the parties' contentions may wither, or may be fortified, by exposure to cross-examination and through clarifying questions posed by the court. Depending upon the ages and maturity of the children involved, the court may wish to exercise its discretion to interview them in chambers pursuant to R. 5:8-6. Expert testimony, whether through professionals retained by the parties or appointed by the court under R. 5:3-3, may offer helpful insights about the likely impact of a move upon the children, and about the prospects that a visitation plan will guarantee regular communication and contact of a nature and quality to sustain relationships with the non-custodial parent. See Baures, supra, 167 N.J. at 97.
Notwithstanding these benefits that can be derived from plenary hearings in removal cases, Family Part judges must also bear in mind the costs, both financial and personal, that the litigants will incur in preparing for and participating in such proceedings. Experts often will need to conduct joint and separate interviews of the children and the parents, review pertinent documents and administer appropriate psychological tests before issuing a written report. Opposing counsel may wish to pursue discovery from the parties and from any other anticipated witnesses before the hearing. Documents may need to be located, exchanged and marked for trial. All of these steps will consume time and money. In the meantime, the children and their parents are placed in an anxious state of limbo, unsure if the removal application will be granted or denied, and unable to make solid plans for the future. Indeed, the job offer or other opportunity that sparked the removal application may dissipate in the interim.
Given these competing, and highly contextual, practical considerations, we continue to eschew any per se rule that would mandate plenary hearings in all contested removal cases. [Barblock, supra, 383 N.J. Super. at 122-23.]
We conclude that no hearing was required here. The application resulting in the designation of defendant as PPR was not considered in a vacuum. Since the entry of the judgment of divorce in May 2007, the parties had filed five motions in addition to five cross-motions addressing, among other issues, the care, custody, schooling and maintenance of the child. Numerous certifications were filed tracking the changing circumstances of the parties and despite the claim that numerous factual issues remained extant, the factual positions of the parties were well-established.
We discern that there was no necessity to conduct a plenary hearing to establish what was known by both the parties and the judge as well. The parties' living arrangements, work schedules, marital statuses, visitation schedules, the child's relationship to both parents, as well as their views towards each other, were well-documented. In addition, the parties and the judge had the benefit of a comprehensive CNA that thoroughly reflected the positions of the parties as well as presented to the judge a thoughtful recommendation as to a resolution of the dispute.
In sum, we neither denigrate nor minimize the value or, in most instances, the need for a plenary hearing to resolve genuine issues in dispute, but we bear in mind that in rare cases where appropriate, a judge can resolve the issues without the necessity of a formal plenary hearing. This is one of these cases.
We conclude that Judge Cook appropriately granted defendant PPR status.