March 5, 2012
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket Nos. FM-04-845-08 and FV-04-1421-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 7, 2011
Before Judges Lihotz and St. John.
In these consolidated appeals, we are asked to examine two Family Part orders. The first, entered at the conclusion of a six-day bench trial, permitted plaintiff to move to the State of Florida while retaining physical custody of the parties' child and modified the provisions of their Final Judgment of Divorce (FJOD), which had awarded joint legal custody, and adjusted defendant's parenting time (the removal case). The second resulted after a summary proceeding and granted plaintiff's request for entry of a final restraining order (FRO) pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35 (the DV case).
On appeal, defendant raises issues for our review in each of these matters. Regarding the removal case, he challenges the trial court's review of the evidence, arguing the judge failed to consider evidence of the unfitness of plaintiff's mother who will be living with the child, and erroneously denied his evidence on alternative parenting plans. Defendant also argues the court erred in its application of the law. In the DV case, defendant suggests the evidence presented by plaintiff was insufficient to prove harassment, requiring reversal of the FRO.
Following our review of the arguments presented, in light of the record and applicable law, we affirm both Family Part orders. For clarity, we will provide the facts applicable to both cases, then provide a separate discussion of the issues under review.
Plaintiff N.S. and defendant S.S. were married on April 26, 2006, and divorced by the FJOD filed on July 14, 2008. The parties have one child M.S., who is currently four years old. In the property settlement agreement (PSA) incorporated into the FJOD, the parties agreed they would share joint legal custody of M.S. Plaintiff was designated as the parent of primary residence and defendant was designated as the parent of alternate residence.*fn1 Plaintiff cared for M.S. five days and four nights each week, and defendant provided care for the remaining two days, three nights. The PSA provided neither party could remove M.S. from New Jersey for a five-year period from the date of its execution.
Plaintiff, while working as a counselor, was sexually assaulted. She was diagnosed with Post Traumatic Stress Disorder (PTSD) and awarded approximately $900.00 per month in Social Security Disability (SSD), along with a $400.00 monthly award for M.S. At the time of the hearing, defendant paid child support of $170.00 per week, which was reduced on October 29, 2010 to $73.00 per week. Defendant, a Camden City Police Officer, had been suspended from his employment without pay in April 2010.*fn2 As a result of the suspension, defendant moved for a reduction in his child support and daycare obligations; plaintiff filed a cross-motion seeking to remove M.S. to the Tampa, Florida area.
A plenary hearing on the removal case was ordered. The matter was tried on six days between September 3 and October 13, 2010, before Judge Angelo DiCamillo. During the hearing, the parties were the principal witnesses, with additional witnesses testifying regarding very discrete facts.
Plaintiff explained her reasons for moving to Florida. Primarily, she asserted Florida would be a less expensive place to live, she would find professional employment, and she would be surrounded by a family support system. More specifically, plaintiff and M.S. would be living with her mother, who was not going to require payment of rent, food, or child care. Also, plaintiff believed employment opportunities were superior for her in Florida. She earned an Associate's degree in nursing, but had difficulty finding work in New Jersey, discovering hospitals, where the bulk of openings existed, required a Bachelor's degree in the field, while in Florida, hospitals accepted nurses with the two-year Associate's degrees. She would also receive benefits with her employment, including much needed health care, which was lost when defendant was fired. Plaintiff also noted that pending securing a full-time job, she was offered a part-time position as a property manager working for her uncle, who agreed to pay her $1,100.00 per month.
Also, plaintiff discussed the non-financial reasons for the move. Foremost was plaintiff's large support system comprised of relatives who lived within two miles of one another in the Tampa area, including her mother, brothers, nieces, nephews, and cousins. Plaintiff and M.S. would be surrounded by family, who would buoy them emotionally and help with logistics. Also significant was plaintiff's certainty the geographic distance would abate the continued tension and hostilities between her and defendant. In this regard, she related text messages and a letter authored by defendant displaying verbal assaults, including threats to inform her professors, the dean, and other college administrators she was "bipolar and schizophrenic." She discussed another incident when defendant entered campus to pass out her "mug shot," taken during the arrest he initiated based on false information. Plaintiff was confident, were she to live in Florida, defendant would be less able to interfere with her employment efforts and disrupt her life.
Defendant objected to the move as it would render meaningless the parties' co-parenting agreement, which had not yet been in place for five years. He refuted plaintiff's claim of available family support, testifying plaintiff's mother was an "unsuitable caregiver" for M.S. He repeated plaintiff's past statements relating instances of physical abuse by her mother, including beatings and disparaging comments, because her mother favored male children. Defendant additionally contended plaintiff's mother was an alcoholic and was promiscuous, testifying he saw her drunk many times at parties and plaintiff told him as a young child her mother would take her to a home where she engaged in a sexual liaison.
Defendant noted the parties had successfully co-parented M.S. and none of their difficulties centered on denying access to the child. Further, despite plaintiff's continued allegations, no final domestic violence restraining order was ever entered by the court. Defendant demonstrated his awareness of the child's pre-school routine and her past medical needs.
Defendant also objected to the distance and exorbitant transportation expenses related to effectuating visitation if M.S. resided in Florida. He questioned the safety of a young child flying alone and suggested M.S. would need a travel companion for several years.
After the conclusion of the hearing, but before a determination was rendered by the trial judge, plaintiff filed a complaint pursuant to the PDVA, and a temporary restraining order (TRO) was entered. That order also temporarily suspended defendant's parenting time.
On November 19, 2010, Judge DiCamillo entered his written opinion in the removal case. Applying the test set forth in Baures v. Lewis, 167 N.J. 91, 118 (2001), Judge DiCamillo credited plaintiff's testimony explaining the basis of her decision to move. He then analyzed plaintiff's reasons for the move; defendant's claims in opposition; the parties' past interactions impacting their positions supporting or opposing the move; whether the educational, health, and leisure opportunities available to M.S. in New Jersey were available in Florida; whether a meaningful visitation and communication schedule could be developed allowing defendant to maintain a full and continuous relationship with M.S.; the likelihood plaintiff will continue to foster M.S.'s relationship with defendant; whether extended family relationships in New Jersey or Florida were impacted by the move; and whether defendant had the ability to relocate.
The court also considered the competing parenting plan proposals submitted by the parties. Judge DiCamillo rejected defendant's submission as an attempt to change the custodial agreement to achieve "a 50/50 shared physical custodial relationship[.]" He also noted plaintiff's proposal actually increased defendant's parenting time with M.S.
In weighing the facts supporting these factors, the trial judge found defendant had failed to offer adequate opposition to plaintiff's reasons to move and provided no "reasons sufficient to defeat plaintiff's application for removal." The trial judge concluded "[p]laintiff ha[d] a good faith reason for the move, and the move w[ould] not be inimical to the child's interest." The court granted the removal request and entered a new parenting plan.
On December 2, 2010, Judge John T. Kelley presided over the domestic violence hearing, initiated by plaintiff's complaint. Plaintiff and defendant gave their accounts of the incident and the arresting police officer also testified.
Judge Kelley made detailed factual findings on the record, including credibility assessments in finding defendant committed an act of domestic violence, premised on the predicate act of criminal harassment. He rejected plaintiff's additional claim defendant committed an act of stalking, N.J.S.A. 2C:12-10, as there was no evidence of repeated conduct. A FRO was entered.
Defendant's separate appeals of these two orders followed. We granted defendant's motion to consolidate the two matters.
The "standard of review of a trial court's factual findings and conclusions of law is well-settled." L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523, 533 (App. Div. 2011). "'[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.'" MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)), stay denied, 551 U.S. 1177, 128 S. Ct. 7, 168 L. Ed. 2d 784 (2007). "We will not disturb the 'factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]'" L.M.F., supra, 421 N.J. Super. at 533 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
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." [MacKinnon, supra, 191 N.J. at 254 (quoting M.M., supra, 189 N.J. at 279).]
We turn to defendant's arguments on appeal. Our discussion separates the issues raised in the individual matters.
Following a divorce, removal of children from the State of New Jersey is governed by N.J.S.A. 9:2-2, which provides:
When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are natives of this State, or have resided five years within its limits, they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order.
"The clear purpose of N.J.S.A. 9:2-2 is to preserve the rights of the [non-custodial] parent and the child to maintain and develop their familial relationship where the custodial parent proposes to remove the child to another jurisdiction." Schulze v. Morris, 361 N.J. Super. 419, 425 (App. Div. 2003). In most cases, an out-of-state move affects the relationship between the child and non-custodial parent. By far, these decisions are among the most difficult ones posed to Family Part judges.
"Inevitably, upon objection by a non-custodial parent, there is a clash between the custodial parent's interest in self-determination and the non-custodial parent's interest in the companionship of the child. There is rarely an easy answer or even an entirely satisfactory one when a non-custodial parent objects. If the removal is denied, the custodial parent may be embittered by the assault on his or her autonomy. If it is granted, the non-custodial parent may live with the abiding belief that his or her connection to the child has been lost forever." [Morgan v. Morgan, 205 N.J. 50, 54 (2011) (quoting Baures, supra, 167 N.J. at 97).]
The party seeking to relocate with a child "ultimately bears a two-pronged burden of proving a good faith reason for the move and that the child will not suffer from it." Baures, supra, 167 N.J. at 118. Defendant's appeal does not challenge the trial court's finding that plaintiff properly established a good faith reason for the move. Rather, he emphasizes the adverse effects upon M.S., concentrating on the alleged unfitness of plaintiff's mother, whose presence in the household would subject M.S. to an "unhealthy environment." Defendant argues the court abused its discretion in weighing the facts and in denying, as inadmissible, video tape evidence purportedly showing plaintiff's mother intoxicated and being promiscuous. We reject these contentions.
The court noted the recording was made prior to M.S.'s birth and defendant had not previously provided the evidence during discovery. Despite that lapse, the trial judge did not deny its admission; he conditioned it upon presentation of expert testimony laying a foundation that the video supported defendant's claims the grandmother's demonstrated conduct at a party would adversely impact her ability to properly care for M.S. Defendant declined to comply as directed.
The factual findings undergirding the trial court's decision are amply supported by adequate, substantial and credible evidence found in the record, MacKinnon, supra, 191 N.J. at 253-54, and the trial court correctly applied the law to these facts. We affirm the order for removal substantially for the reasons set forth in Judge DiCamillo's eighteen-page written opinion. R. 2:11-3(e)(1)(A).
We turn to defendant's appeal from the FRO in the domestic violence case. The trial judge found defendant's actions of following plaintiff from the police department after a custody exchange, parking behind a dumpster outside plaintiff's apartment, and when he saw plaintiff he exited his vehicle and began walking towards her, were designed to alarm and annoy her. In doing so, Judge Kelley rejected as incredible defendant's claim he was not there to interact with plaintiff, but was trying to determine where his older children's babysitter lived. It was noted defendant's presence within 500 feet of plaintiff violated a bail condition, placed pending his official misconduct charge trial. Defendant argues plaintiff's evidence was insufficient to prove by a preponderance of the evidence that he was guilty of harassment. We disagree.
"Although in the realm of domestic abuse, harassment is arguably the least egregious of the offenses recognized by the Legislature as a ground for obtaining relief under the [PDVA], 'there is no such thing as an act of domestic violence that is not serious.'" L.M.F., supra, 421 N.J. Super. at 535 (quoting Brennan v. Orban, 145 N.J. 282, 298 (1996)). "When determining whether the harassment statute has been violated, courts must consider the totality of the circumstances, in light of the parties' history." E.M.B. v. R.F.B., 419 N.J. Super. 177, 183 (App. Div. 2011) (internal quotation marks and citations omitted). "That determination must be made on a case-by-case basis." State v. Hoffman, 149 N.J. 564, 581 (1997), certif. denied, 199 N.J. 515 (2009).
A person commits harassment pursuant to N.J.S.A. 2C:33-4 if, with purpose to harass another, he:
a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;
b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
Here, the trial court focused on N.J.S.A. 2C:33-4c, finding defendant's conduct satisfied each element of the statute because defendant engaged in a course of alarming conduct with the purpose to alarm plaintiff. The New Jersey Supreme Court has explained, "[i]n interpreting subsection c., which refers to 'serious' annoyance or alarm, . . . the phrase means 'to weary, worry, trouble or offend.'" J.D. v. M.D.F., 207 N.J. 458, 478 (2011) (quoting Hoffman, supra, 149 N.J. at 581).
Judge Kelley entered these findings and conclusions:
In this case[,] I do find that acts of harassment occurred. Frankly, it makes no sense for [defendant] to be at this residence. As I understand the testimony[, defendant] knew [where plaintiff resided]. Why he would go there, why he would park his car there, serves . . . no purpose. And I would find as a fact that it is alarming conduct to engage in that kind of activity. Obviously the situation has become very, very difficult for each of the parties. But the fact that he went there and I . . . cannot find his testimony credible that he went there that night to . . . drive around absentmindedly looking for this babysitter[.]
. . . It would serve no purpose for him to drive to [plaintiff's apartment complex] that night other than to engage in the course of alarming conduct. And I do find that the predicate act of harassment has been established.
In this case[,] there has been substantial testimony about prior acts of domestic violence that occurred between these parties. I am satisfied that there is a long history of domestic violence. I am satisfied that there had been a history, based upon the testimony of the plaintiff, a history of [TRO]s obtained by both of the parties. But clearly there is a history of domestic violence and the statute, as the statute is named, is designed to prevent domestic violence. And the only way domestic violence can be prevented is to direct that there be no contact between the parties.
. . . I am required to make a determination [i]f the elements of harassment were established and I do find they were established. I also find . . . the testimony of [plaintiff] credible to the extent that she went out, that there was no reason for [defendant] to be sitting there, [and] he was not 500 feet away, rather he was in an area, even accepting his diagram where the car was parked, that it was clearly in a position where he could observe the apartment of [plaintiff]. This occurred at night. There was no reason for him to be there other than to engage in a course of alarming conduct. And the only way the [c]court could be assured there would be no further acts of domestic violence between the parties, is to issue the [FRO]. Accordingly, I feel constrained to issue the [FRO] at this time.
We defer to these findings, including the trial judge's credibility determinations based on his "feel of the case," having had the opportunity to see and hear the witnesses' conflicting testimony. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007). We will not disturb the FRO.