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S.M.B v. M.J.

July 7, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FD-05-16-07.

Per curiam.



Submitted May 18, 2011

Before Judges Sapp-Peterson and Simonelli.

Defendant,*fn2 S.Z., appeals from the denial of her motion seeking various relief regarding custody, parenting time, and visitation related to her daughter, S.J., residing at that time in North Carolina with plaintiff, S.M.B. Additionally, the motion sought modification of the August 12, 2009 order to reflect that S.Z. and S.M.B. share joint legal custody of the minor child. Defendant also appeals from the denial of her request for attorney's fees and costs associated with the motion in its entirety. The Family Part judge denied defendant's motion, concluding that New Jersey no longer had jurisdiction over proceedings involving S.J. The court, based upon lack of jurisdiction, also denied plaintiff's cross-motion seeking various forms of relief. We remand to the trial court for the entry of an amended order correcting the designation of S.M.B. in the August 12, 2009 order as having sole legal custody of S.J. We affirm in all other respects.

S.Z. is the biological mother of S.J., born in 1998. M.J. is the biological father of S.J., and S.M.B. is S.J.'s paternal grandmother. From her birth until 2007, S.J. lived with S.Z. In 2007, however, S.Z. was experiencing emotional problems and was abusing drugs. At the same time, M.J. was incarcerated in federal prison in Seattle, Washington. As a result, S.Z. and S.M.B. reached an agreement regarding issues of custody and parenting time that they memorialized in a Consent Order entered by the court on February 28, 2007. The order included the following provision: "The parties shall have joint legal custody of the minor child, [S.J.]" and that "[S.Z.] shall be designated as the Parent of Alternate Residence." The order set forth that S.Z.'s supervised visits with S.J. would be "as agreed upon by the parties." The order also reflected the parties' agreement that unsupervised visits with S.J. would commence upon S.Z.'s satisfaction of conditions outlined in the order.

Thereafter, the parties continued to appear before the Family Part judge concerning matters of visitation and parenting. A December 17, 2007 order denied S.Z.'s motion for unsupervised visitation because she failed to provide satisfactory proof of treatment. On January 25, 2008, the court modified the location for supervised visitation. On March 3, 2009, the court entered an order permitting unsupervised visits with S.J. subject to Probation conducting a "home inspection of defendant [S.Z.]'s residence[.]" The court also ordered that if S.M.B. was willing to pay, a "custody/parenting/relocation evaluation" could be done privately or, alternatively, the evaluation could be done through the Family Court Assessment Team (FCAT).

Thereafter, S.Z. filed a motion seeking the transfer of custody of S.J. back to her. Plaintiff cross-moved for an order permitting her to relocate to North Carolina with S.J. The court conducted a hearing on July 6, 2009, at which S.Z. was the sole witness testifying. In addition to S.Z.'s testimony, the court admitted numerous documents into evidence, including psychological evaluations performed by Doctors Kristen Wynns and Susan McLaughlin. Defendant objected to the court's consideration of most of the documents on hearsay grounds. At the conclusion of S.Z.'s testimony, plaintiff moved to dismiss her custody application. The court granted the motion. The court found that defendant was "not where she was three years ago, that's clear to me. She's taken significant steps to improve her lot. She's taken significant steps to become a better mother. She's not the mess that she was three years ago." Notwithstanding this finding, the court reasoned that it was defendant's burden to show a change in circumstances that warranted a modification of the custody arrangement. Citing Mastropole v. Mastropole, 181 N.J. Super. 130 (App. Div. 1981), the court reasoned that when evaluating whether there had been achange in circumstances justifying an order transferring custody back to defendant, it can't simply be with regard to Ms. [Z].

It's got to be a change in circumstances with regard to the child. And candidly, I don't have enough, ma'am. You've made progress. You're to be commended for it, but I needed specific proofs and specific facts as to why [S.J.] was going to do better with you and I don't have the record, ma'am.

Turning its attention to plaintiff's relocation motion, the court found that S.M.B. provided legitimate reasons for the desired move to North Carolina, namely, an employment opportunity that would greatly increase S.M.B.'s financial situation. The court granted the motion but retained jurisdiction over the matter "unless or until [it] surrender[ed] jurisdiction. So, even though everybody's headed toward North Carolina, for the time being [this court]'s the right [court] to be given any additional applications." Defendant inquired whether she could come back to court when she had "everything together and can show solid proof that I have everything together[.]" The court responded, "Okay. Well, ma'am, I think I just said that for the time being it remains a New Jersey case."

The court directed plaintiff's counsel to prepare the order memorializing its decision and to submit the proposed order"under the five day rule[.]" R. 4:42(c). The proposed order denied defendant's application for a change in custody and granted plaintiff's cross-motion to relocate S.J. from New Jersey to North Carolina. The order also contained the following language: "IT IS FURTHER ORDERED that custody of [S.J.] . . . shall continue in the sole custody of [S.M.B.]" (Emphasis added). Defendant did not object to the form of the proposed order and, once entered, filed no appeal of the court's ruling.

On June 1, 2010, defendant filed a motion seeking the following relief: (1) designating defendant as the parent of primary residence; (2) alternatively, modifying the parenting time to include overnight summer visitation as well as "[w]inter [b]reak and [s]pring [b]reak"; (3) modifying the [August 12, 2009] order to reflect that the parties share joint legal custody of [S.J.]; and (4) attorney's fees and costs of defendant's motion. In her certification submitted in support of the motion, defendant stated:

9. [Plaintiff's attorney] included in the [August 12, 2009] order that [plaintiff] has "sole custody[.]" Sole custody was never addressed by the court at the hearing. My attorney and I listened to all three CD[]s which contain the entirety of the hearing. The reason this is important is the plaintiff throws the term "sole custody" around every chance ...

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