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Samuel E. Carmon, Jr v. Donna J. Carmon

April 12, 2012

SAMUEL E. CARMON, JR., PLAINTIFF-APPELLANT,
v.
DONNA J. CARMON, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Salem County, Docket No. FM-17-36-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 6, 2012 -

Before Judges Carchman, Baxter and Maven.

Plaintiff Samuel E. Carmon, Jr. appeals the May 14, 2010 Family Part order permitting defendant Donna J. Carmon to relocate to Kansas with the parties' minor children. For the reasons that follow we reject plaintiff's arguments and affirm.

This appeal involves a contentious marriage, divorce and custody dispute between plaintiff and defendant. The parties began an internet dating relationship while plaintiff resided in Pilesgrove, New Jersey and defendant in Edgerton, Kansas. They married nine months later on August 8, 2003, and resided in Pilesgrove.

Their first son was born in August 2004. The parties had marital difficulties while defendant was pregnant with their second son. In October 2005, defendant filed a domestic violence complaint and received a temporary restraining order (TRO) against plaintiff. Upon the dismissal of the TRO, the parties entered into a consent order which, among other things, limited plaintiff's ability to contact defendant, established joint legal custody with defendant as the parent of primary residence (PPR) and plaintiff the parent of alternate residence (PAR), ordered plaintiff to pay child and pendente lite spousal support, and permitted defendant to relocate to Kansas with the minor child. Defendant and the child relocated to Kansas where they lived with defendant's mother until defendant purchased a townhouse, which she still owned at the time of the relocation hearing. In Spring 2006, while defendant was living in Kansas, she gave birth to the parties' second son. Consistent with their agreement, plaintiff visited defendant and the children after the birth.

The parties reconciled and resumed living together in Pilesgrove in October 2006; however, their marital troubles continued. Plaintiff filed a complaint for divorce in July 2008, and in August, each filed domestic violence complaints against the other. A Final Restraining Order (FRO) was granted to defendant and amended on September 18, 2008, once again establishing joint legal custody of the children, with defendant as the PPR and plaintiff as the PAR, and mandating a parenting time schedule and child support obligation. In January 2009, the FRO was dismissed with the consent of defendant and the parenting time schedule was modified, granting plaintiff additional time with the children.

The parties' Final Judgment of Divorce (FJD) was entered on June 24, 2009, incorporating the parties' Property Settlement Agreement (PSA), which, among other things, ordered the division of property, provided for alimony and child support, granted joint legal custody and established a parenting plan and holiday schedule. An amended FJD entered December 16, 2009, specified that defendant was the PPR, plaintiff was the PAR and modified parenting time.

After the divorce, the parties' relationship remained contentious involving parenting time conflicts, altercations during the exchange of the children and non-compliance with pick-up and drop-off provisions, at times necessitating police intervention. On November 4, 2009, defendant filed a motion seeking relocation.

After a four-day hearing in March and April 2010, at which time both parties were represented by counsel, the trial judge granted defendant's motion for relocation on May 14, 2010. In a subsequent order, the trial judge set forth an extensive visitation, summer and holiday schedule and cost-sharing provisions. This appeal followed.

I.

Plaintiff appeals seeking to (1) overturn the trial court order of relocation; (2) require defendant to return the children to New Jersey; and (3) designate himself as the PPR. The twenty points of error raised by plaintiff in this appeal are, at times, duplicative in nature. They can be categorized as follows:

ISSUE I:

The court erred in evaluation defendant's application for removal using the Baures v. Lewis*fn1 "good faith" analysis rather than the more stringent change of custody "best interests" analysis. (points 7, 8, 11, 13, 17, 19)

ISSUE II:

The court failed to retrieve, review or utilize materials in the record thereby rendering a decision that is incomplete and inaccurate, causing ...


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