KATHRYN OWEN v. LAURENCE GERARD MURPHY, III

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1135-05T3F1135-05T3

KATHRYN OWEN,

Plaintiff-Appellant,

v.

LAURENCE GERARD MURPHY, III,

Defendant-Respondent.

_______________________________________

 

Argued March 20, 2006 - Decided April 28, 2006

Before Judges Yannotti and Humphreys.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-740-05.

Kelley A. McGlone-Ramsey argued the cause for appellant (Markowitz Gravelle, attorneys; Ms. McGlone-Ramsey, on the brief).

Wendy M. Rosen argued the cause for respondent (Fox Rothschild, attorneys; Ms. Rosen, on the brief).

PER CURIAM

On September 16, 2005, the Family Part judge entered an order denying an application by plaintiff Kathryn Owen for permission to relocate from New Jersey to Connecticut with the parties' minor child. We granted plaintiff's motion for leave to appeal from the order and now affirm.

We briefly state the facts pertinent to our decision, based on the record in the trial court. Plaintiff married defendant on November 2, 2001. The parties have one child, a daughter who was born October 25, 2003. The parties separated and executed a separation agreement on October 14, 2004 in which they agreed to share physical custody of the child. According to the agreement, the parties would both reside in Princeton, New Jersey, but in separate residences. The agreement provides that the parties would have joint custody of the child. Plaintiff would have the child each week from Sunday at 10:00 a.m. to Thursday at 10:00 a.m. and defendant would have the child during the remainder of the week.

The record shows that plaintiff is employed by Covance, Inc. (Covance), an entity that provides clinical development services. In a letter dated March 2, 2005, Jan Curran, Senior Manager of Human Services for Covance, confirmed that plaintiff would be "transitioning" from a position in Princeton to a home-based position in Connecticut. Curran wrote, "Although [plaintiff's] office will be changing location, her employment status with [Covance] will remain unchanged, as will her job duties and compensation."

On March 7, 2005, plaintiff filed a complaint for divorce. She sought among other things a judgment granting joint legal custody of the child to both parties and a judgment granting plaintiff primary residential custody. Defendant filed an answer and counterclaim in which he alleged that plaintiff had repeatedly threatened to relocate outside of New Jersey and outside of Princeton. Defendant sought a judgment restraining and enjoining plaintiff from removing the child from New Jersey or relocating with the child outside of a radius of fifteen minutes from Princeton.

On July 27, 2005, Covance offered plaintiff the position of Director of Clinical Operations beginning on August 1, 2005. The position has a salary range of $85,000 to $153,000. Covance offered plaintiff an annual salary of $133,120.08. The position would be home-based in Connecticut. On July 29, 2002, plaintiff accepted the position.

On August 16, 2005, Plaintiff sought an order requiring defendant to show cause why she not be permitted to relocate to Connecticut with the parties' child. In a certification filed in support of the application, plaintiff asserted that after their separation, the parties agreed to a parenting schedule which has worked well. Plaintiff stated that she earns a "good salary" working for Covance. She holds a supervisory position which requires that she travel several times a year, sometimes out of the country. Plaintiff stated that she had been asked in March 2005 to oversee the company's efforts to expand its client base in the northeastern United States. Plaintiff asserted, "This change in position will require me to relocate to the State of Connecticut."

Plaintiff also stated that she was scheduled to start her new position on October 1, 2005. Her lease on a residence in New Jersey expired on October 31, 2005 and thereafter plaintiff would not have a residence in New Jersey. Plaintiff had secured a rental property in Madison, Connecticut, which was less than two hours away from defendant's office.

Plaintiff asserted that defendant had objected to the move. She stated that the relocation to Connecticut "will in no way disrupt or decrease the parenting time that [defendant] enjoys with our daughter." Plaintiff insisted that the current parenting plan could continue or the parties could follow an "improved" plan which would provide defendant with more weekend time and more vacation time.

Plaintiff additionally said that she would be irreparably harmed in business as well as financially if she is not permitted to move to Connecticut. Plaintiff asserted that the child will be harmed because she would lose the opportunity for the better quality of life that plaintiff would be able to offer her by relocating.

On August 18, 2005, the judge issued an order to show cause directing defendant to show cause why the relief sought by plaintiff should not be granted. Defendant opposed the application and on September 8, 2005 filed a cross-motion seeking his designation as parent of primary residence in the event plaintiff should relocate to Connecticut.

In his certification defendant asserted that plaintiff had not presented a good faith reason for her request to relocate with their daughter. Defendant stated that plaintiff's motive for relocation was "purely selfish" and she had told him that she did not want to live in his "backyard." She also said that Connecticut reminded her of England and she "always liked the beach."

Defendant additionally stated that there was no evidence for plaintiff's assertion that she was required to relocate to Connecticut because of the change in her employment status. Defendant noted that, according to the March 2, 2005 letter from Covance, plaintiff's employment status would "remain unchanged." Defendant disputed plaintiff's assertion that she could only work in a home-based office if she relocated to Connecticut. He stated, "If Plaintiff can work from home in Connecticut, she can work from home in New Jersey."

Defendant stated that the relocation and proposed parenting plan would be inimical to the child's interest. According to defendant, the proposed plan would reduce his parenting time. Moreover, the move to Connecticut would impair the parties' ability to flexibly adjust the parenting arrangements as necessary.

Defendant also stated that depending on the route, the trip from Madison, Connecticut to his home in Princeton would take three hours and 19 minutes or two hours and 58 minutes, without traffic. Moreover, a significant amount of travel time would occur in times of high volume traffic and could add up to an hour of travel time each way. Defendant asserted:

Ultimately, [the child] will spend a significant amount of time in the car for each custody transfer. Our toddler will spend six and one-half (6 1/2) to eight and one-half (8 1/2) hours per weekend traveling in automobiles on major, congested interstate highways, between New Jersey and Connecticut. That travel, on most weekends (as the Plaintiff has proposed), is certainly not in the best interest of our daughter who will not even be two-years old until the end [of] October. Making that trip on a regular basis will be extremely tedious for Plaintiff and worse yet for a two-year old child.

Defendant asserted that moving the child will be inimical to the child's best interest because plaintiff has no family or support network in Connecticut. He stated that the child had an extensive support network with family and friends in New Jersey, that would be impaired if she relocated to Connecticut. Defendant added:

I agree that it is in [the child's] best interest for both her parents to continue to be involved in her life to the fullest extent possible. The only way to ensure that involvement is for [the child] to remain in New Jersey. If there needs to be any travel to and from [New Jersey], it should be done only by Plaintiff, not our minor child.

Plaintiff filed another certification to respond to defendant's assertions. She stated that the proposed move to Connecticut was not an attempt to alter the parenting arrangement that the parties had agreed to. Plaintiff said that, while her "core" family resides in Canada, the child's godfather and his wife lived in Stamford, Connecticut, which is about 30 minutes from Madison. Plaintiff admitted that she did not want to live in defendant's "backyard."

Plaintiff also said that a home-based office would allow the child to be in day care part-time rather than full-time. If plaintiff worked at home, she would have more time to spend with the child. Plaintiff stated that the time required to see clients would be "greatly reduced." Plaintiff added that she had received a "modest" raise in pay for her promotion. There were other financial benefits from the move, specifically lower rent, less costly car insurance and a lower cost of living in Connecticut. Plaintiff suggested alternative travel arrangements, including train travel from Old Saybrook, Connecticut and flying from New London/Groton.

Defendant filed a sur-reply certification. Defendant disputed plaintiff's proposed alternative travel plans, noting that travel by train could take up to six hours each way. Defendant also asserted that travel by plane was not feasible because the airline does not have service on Sunday.

The judge conducted a hearing on the application on September 16, 2005. Plaintiff testified concerning the reasons for her decision to move to Madison, Connecticut. She said she wanted a "commutable distance" to her clients and also a "beach location." She also liked Madison because it reminded her of England.

Plaintiff testified concerning the time that would be required to transport the child from Madison to Princeton. Plaintiff said that the trip by train could take up to two hours and forty-five minutes. The trip by car takes about two hours and twenty minutes each way. She said that she would transport the child to Princeton each Thursday and bring the child back to Connecticut on Sundays. Plaintiff said that she did not believe the travel would have a detrimental impact on the child.

The judge rendered her decision from the bench. The judge found that plaintiff had not established a good faith reason for the move. She stated:

[I]t is clear that as of March, 2005 [plaintiff] knew that she had an opportunity to be transferred to Connecticut. At that time the transfer was essentially a lateral transfer. It was the same title, the same job description....In other words, the only thing changing at that time with respect to her job was location.

The judge also found that plaintiff had not established that the move would not be inimical to the child's interest. The judge noted that plaintiff's plan to maintain the current parenting schedule was "disingenuous at best. [It was] [u]nrealistic." The judge acknowledged that plaintiff had offered to transport the child from Connecticut to Princeton and back each week. However, the judge found that it would be inimical to the child's interest to have "a child of such tender years - not even two years old in the position of having to endure long and perhaps complicated and multi-phased commuting arrangements between Connecticut and Princeton, New Jersey." The judge entered an order denying the application and this appeal followed.

Plaintiff argues that the judge failed to adhere to the standards in Baures v. Lewis, 167 N.J. 91 (2001), when determining whether plaintiff had established a prima facie case for relocation. Plaintiff contends that there is overwhelming evidence that plaintiff's decision to relocate to Connecticut was made in good faith and the child will not suffer from the move. Plaintiff further argues that the trial judge erred by considering defendant's rebuttal and his opposing evidence in determining whether plaintiff had established a prima facie case for relocation. We reject these contentions and affirm.

New Jersey's removal statute 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.

[N.J.S.A. 9:2-2.]

In Cooper v. Cooper, 99 N.J. 42 (1984), the Court stated that the purpose underlying N.J.S.A. 9:2-2 is

to preserve the rights of the noncustodial parent and the child to maintain and develop their familial relationship. This mutual right of the child and the noncustodial parent to develop and maintain their familial relationship is usually achieved by means of visitation between them. Because the removal of the child from the state may seriously affect the visitation rights of the noncustodial parent, the statute requires the custodial parent to show cause why the move should be permitted.

[Id. at 50-51.]

The Court in Cooper established the methodology to be used in a case involving the removal of children from this jurisdiction by the custodial parent:

When removal is challenged under N.J.S.A. 9:2-2, we hold that to establish sufficient cause for the removal, the custodial parent initially must show that there is a real advantage to that parent in the move and that the move is not inimical to the best interests of the children....It is only after the custodial parent establishes these threshold requirements that the court should consider, based on evidence presented by both parties, visitation and other factors to determine whether the custodial parent has sufficient cause to permit removal under the statute.

[Id. at 56.]

The Court next addressed the application of N.J.S.A. 9:2-2 in Holder v. Polanski, 111 N.J. 344 (1988). This case involved a petition by the custodial parent to move the child from New Jersey to Connecticut. Id. at 347. The Court revisited its analysis in Cooper and held "that a custodial parent may move with the children of the marriage to another state as long as the move does not interfere with the best interests of the children or the visitation rights of the non-custodial parent." Id. at 349. The Holder Court modified the requirement established in Cooper that the custodial parent show a "real advantage from the move." Id. at 352-53. The Court stated that the "real advantage" test created too great a burden and did not allow custodial parents the same sort of freedom to seek a better life that noncustodial parents enjoy. Ibid. The Court held that the custodial parent need only show that "any sincere, good-faith reason" will suffice for the move. Ibid. The Court stated, "[m]otives are relevant, but if the custodial parent is acting in good faith and not to frustrate the noncustodial parent's visitation rights, that should suffice." Id. at 353.

The Court again addressed these issues in Baures, supra, 167 N.J. 91. The Court noted that its decisions in Cooper and Holder established that the custodial parent has the burden of proving good faith but those decisions were "unclear and at variance" in respect of "the burden of going forward, the ultimate burden of proof, and the elements of the burden in determining whether the move would be inimical to the interests of the child." Id. at 113.

In Baures, the Court reconciled the decisions in Cooper and Holder and established the "template for a removal case." Id. at 115. The Court stated that in determining whether to order removal, the judge should determine whether the plaintiff had proven good faith and whether the move would be inimical to the child's interest. The judge should consider the following factors:

(1) the reasons given for the move; (2) the reasons given for the opposition; (3) the past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move; (4) whether the child will receive educational, health and leisure opportunities at least equal to what is available here; (5) any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location; (6) whether a visitation and communication schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child; (7) the likelihood that the custodial parent will continue to foster the child's relationship with the noncustodial parent if the move is allowed; (8) the effect of the move on extended family relationships here and in the new location; (9) if the child is of age, his or her preference; (10) whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent; (11) whether the noncustodial parent has the ability to relocate; and (12) any other factor bearing on the child's interest.

[Id. at 116-17.]

The Court noted that not all of these factors would be "relevant and of equal weight in every case." Id. at 117. The Court emphasized that a change, or even a reduction, in visitation would not be an independent basis to deny removal. Ibid. "It is not the alteration in the visitation schedule that is the focus of the inquiry. Indeed, alterations in the visitation scheme when one party moves are inevitable and acceptable." Ibid.

The Court held that the party seeking to move has the initial burden of establishing a good faith reason for the move and that the move will not be inimical to the child's interests. Id. at 118. "By prima facie is meant evidence that, if unrebutted, would sustain a judgment in the proponent's favor." Ibid. Once the movant has presented the prima facie case, the burden of going forward "devolves upon the noncustodial parent who must produce evidence opposing the move as either not in good faith or inimical to the child's interest." Id. at 119. The moving party ultimately bears the burden of proving the two elements necessary to show good cause for the move. Id. at 118.

The Bauers Court made several other observations that are relevant to this dispute. The Court noted that in the initial custody determination, the "primary and overarching consideration is the best interest of the child." Id. at 115 (quoting from Kinsella v. Kinsella, 150 N.J. 276, 317 (1997)). A removal case is "quite different" because the parents' interests "take on importance." Ibid. It requires consideration of the parents' "needs and desires" as they relate to the child's interests. Ibid. "The critical path to a removal disposition therefore is not necessarily the one that satisfies one parent or even splits the difference between the parents, but the one that will not cause detriment to the child." Id. at 116. The Court added:

One final important point is that the Cooper/Holder scheme is entirely inapplicable to a case in which the noncustodial parent shares physical custody either de facto or de jure or exercises the bulk of custodial responsibilities due to the incapacity of the custodial parent or by formal or informal agreement. In those circumstances, the removal application effectively constitutes a motion for a change in custody and will be governed initially by a changed circumstances inquiry and ultimately by a simple best interests analysis.

[Ibid. (citing Chen v. Heller, 334 N.J. Super. 361, 381-82 (App. Div. 2000).]

We have held that when the parents "truly share both legal and physical custody," the application of one parent to relocate with the child to an out-of-state location is treated as an application for a change of custody and "the party seeking the change in the custodial relationship must demonstrate that the best interests of the child would be better served by residential custody being vested primarily with the relocating parent." O'Connor v. O'Connor, 349 N.J. Super. 381, 398 (App. Div. 2002)(citing Chen, supra, 334 N.J. Super. at 380; and Voit v. Voit, 317 N.J. Super. 103, 112 (Ch. Div. 1998)).

Here, the judge found that there was a genuine shared parenting arrangement between the parties. Plaintiff did not argue otherwise. However, plaintiff's application did not seek any change in the agreed-upon custody arrangements. Indeed, plaintiff asserted that the move would not necessarily require any change to the present custodial arrangement.

The judge found, however, that plaintiff's contention that the present parenting arrangement could be maintained with one parent in Madison, Connecticut and the other in Princeton, New Jersey was "disingenuous at best" and "unrealistic." The judge's finding makes clear that, despite plaintiff's assertions to the contrary, her application for relocation was in fact an application for a change of the present custody arrangements. Thus, plaintiff had the burden of showing that the change was in the child's best interests. Baures, supra, 167 N.J. at 116; O'Connor, supra, 349 N.J. Super. at 398.

However, the judge treated the application as one for removal and applied the Baures template. Even so, whether the matter is viewed as an application for a change in custody or a petition for removal, we are convinced that the judge properly denied plaintiff's application. The judge found that the relocation would be inimical to the child's interests. This finding provides an appropriate basis to deny the application under the "best interest" standard applicable to a change of custody and it also supports the judge's determination that plaintiff failed to establish a prima facie case for removal under Baures.

As we stated previously, the judge found that maintenance of the present shared parenting arrangement would require that the child travel extensively each week. Plaintiff conceded in her testimony at the hearing that, at a minimum, the trip by automobile from Madison, Connecticut to Princeton, New Jersey would take about two hours without traffic. With traffic, the trip by car could take considerably longer. In addition, the trip by train would involve a drive to the station in Connecticut, a lengthy train trip and another ride from the Princeton station to defendant's residence. When this matter was considered in the trial court, the child was not even two years of age.

Based on this evidence, we are satisfied that the record fully supports the judge's finding that it would not be appropriate to put a child of such tender years "in the position of having to endure long and perhaps complicated and multi-phased commuting arrangements between Connecticut and Princeton, New Jersey." Because the judge's finding is supported by adequate, substantial and credible evidence, it is binding on appeal. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)(citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).

We have considered the other contentions raised by plaintiff and find those issues not to be of sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

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A-1135-05T3

April 28, 2006