On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1070-10-H.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 19, 2012
Before Judges Messano, Lihotz and Kennedy.
Plaintiff Alexandra Jessica Moreno and defendant Adanan Javan were married on November 13, 2003. In January 2008, their son was born. For most of the marriage, the family resided in Piscataway. Following marital difficulties that need not be explained in detail, on November 23, 2009, plaintiff filed a complaint for divorce, moved out of the home with her son in December and into her mother's home in Queens, New York.
Discovery ensued as the parties attempted to negotiate the issues of custody, support and alimony. On April 30, 2010, the Family Court issued a pendente lite order denying defendant's request for primary custody and granting plaintiff "temporary residential custody." The same order granted defendant unsupervised visitation as well as nightly phone calls. In November 2010, the court denied defendant's request to be designated the parent of primary residence. The order also addressed interim visitation and discovery requests made by both parties.
The record contains extensive pre-trial discovery and correspondence. After several days of negotiations immediately preceding the start of trial, on March 2, 2011, a final judgment of divorce (JOD) was entered that incorporated the parties' Matrimonial Settlement Agreement (MSA). Under the terms of the MSA, the parties agreed to share joint legal custody of their son. Paragraph 2 of the MSA provided:
The Husband and the Wife shall consult and agree with each other with respect to all major decisions concerning the child, including but not limited to the health (except in medical emergencies when consultation and agreement will be made immediately), education, religion, welfare and other matters of similar importance affecting the child, whose well-being, education and development shall at all times be the paramount concern of the Husband and the Wife. The parties shall have equal decision-making rights. Neither party shall have superior rights as to major decision-making concerning the child notwithstanding the parenting plan set forth herein.
The MSA also set forth the parenting time schedule: each parent would alternate weekends, Thursday 6:00 p.m. to Monday 10:00 a.m.; the child would stay with plaintiff every week from Monday 10:00 a.m. to Wednesday 6:00 p.m., and with defendant every week from Wednesday 6:00 p.m. to Thursday 10:00 a.m., on the weeks when he did not have alternate weekend parenting time. In sum, the child spent six of every fourteen overnights with defendant, and eight with plaintiff. Each party was to wake the child, prepare him for his activities, feed him and perform the other parental responsibilities. The parties further agreed to "make every reasonable effort to reach consent on all of these matters . . . ."
Under the MSA, defendant retained the marital home in Piscataway and continued to reside there. In paragraph 5 of the MSA, the parties "acknowledge[d] that inherent in their agreement to the parenting time schedule . . . is the understanding that [they] must live in close proximity to one another." Plaintiff further agreed to "return with the child to reside in New Jersey within sixty . . . days of" defendant's payment of equitable distribution set forth elsewhere in the MSA. At the hearing on March 2, the parties could not agree on where plaintiff would re-locate in New Jersey. Defendant apparently sought to have plaintiff be bound "by a geographic location," but plaintiff refused. The attorneys and the judge acknowledged "that will be left ultimately for the court [to] address."*fn1 The final JOD, however, did not address the issue any further.
Defendant made his payment of equitable distribution on March 9, 2011, and thereafter, via emails, requested plaintiff to notify him of her relocation decision. On April 20, plaintiff's counsel informed defense counsel that plaintiff had submitted an application for approval for an apartment in Flanders, New Jersey, a community in Morris County approximately thirty miles from Piscataway. Defendant was dismayed, and attempts to resolve the dispute led to threats of motion practice, demands for a statement by plaintiff of her reasons for selecting Flanders and requests that the judge hear oral argument on the issue. The judge denied the requests, noting that there was no basis to "impose a certain radius within which the Plaintiff must live," and further noting that she found "no basis at this time to find that either party will attempt to undermine the intent of their agreement."
In May, defendant entered into a lease for an apartment in Flanders but refused to provide her specific address to plaintiff. She requested, through her attorney, that any mail from defendant be forwarded to her mother's address in Queens. She provided only the address of the management office of the apartment complex for purposes of picking up and dropping off her son to effect the parenting time scheduled.
On July 26, defendant filed a post-judgment motion seeking to: (1) compel plaintiff to reside within a five-mile radius of Piscataway; (2) enforce litigant's rights because plaintiff had selected a pediatrician without consulting him in violation of Paragraph 2 of the MSA; (3) direct that the child's pediatrician remain Dr. Naveen Mehrotra in Piscataway; and (4) direct that the child attend Children's Corner Preschool in Piscataway.
Plaintiff filed opposition and a cross-motion seeking to designate: (1) West Morris Pediatrics as the child's primary provider; (2) Healthfirst NJ as his primary health insurer; (3) plaintiff's county of residence as the location of his preschool through 12th grade education; and (4) to modify custody arrangements and parenting time.
Defendant filed a reply and plaintiff filed a sur-reply, in violation of Rule 1:6-3. It appears that the motion judge did not consider the sur-reply in deciding the issues, and, for purposes ...