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N.S v. S.S

March 5, 2012

N.S., PLAINTIFF-RESPONDENT,
v.
S.S., DEFENDANT-APPELLANT.



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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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 ...


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