LUIS CARRION v. KATHERYN GIUNTA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1800-04T11800-04T1

LUIS CARRION,

Plaintiff-Appellant,

v.

KATHERYN GIUNTA,

Defendant-Respondent.

_____________________________

 

Argued January 24, 2006 - Decided February 10, 2006

Before Judges Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Chancery Division, Family Part, Sussex County, FD-19-273-04.

Allen Hantman argued the cause for appellant (Morris & Hantman, attorneys; Mr. Hantman, on the brief).

Ivette R. Alvarez, argued the cause for respondent (Einhorn, Harris, Ascher, Barbarito, Frost and Ironson, attorneys; Holly Lynn Reinhardt, on the brief).

PER CURIAM

Plaintiff, Luis Carrion, appeals from a trial court order permitting defendant, Katheryn Giunta, to permanently relocate to Alabama with the parties' four year old daughter. Having reviewed the record, we conclude that the trial judge's opinion was supported by substantial credible evidence, R. 2:11-3(e)(1)(A), and we affirm substantially for the reasons stated in Judge McGovern's oral opinion placed on the record on July 28, 2004.

I

These are the most pertinent facts. Luis Carrion lived in South Carolina from the mid-1990's until January 2004. He met Kathryn Giunta in 1999. She was originally from Sussex County, New Jersey, but she was attending nursing school in South Carolina. They became romantically involved while she was in nursing school. As she was about to graduate in 1999, she discovered that she was pregnant. The parties planned to get married and to live in South Carolina, but Mr. Carrion would not go through with the wedding. As a result, Ms. Giunta moved back to New Jersey in December 1999. The baby, Alexis, was born on January 12, 2000. Ms. Giunta and the baby lived in a basement room in her parents' house, and Ms. Giunta worked part-time as a nurse.

Between 2000 and September 2003, the parties made plans to marry on at least two additional occasions. On the first of those occasions, Ms. Giunta and her family spent $8,000 on wedding arrangements. On each occasion, Mr. Carrion backed out of the wedding at the last minute. During this time, Mr. Carrion remained in South Carolina, occasionally visiting New Jersey to see Ms. Giunta and Alexis, and sporadically sending money for child support. On occasion, Ms. Giunta would also bring Alexis to South Carolina to see Mr. Carrion.

The last planned wedding was to occur in September 2003. The parties planned to marry in New Jersey, after which Ms. Giunta would move to South Carolina. She gave notice to her employer in anticipation of the move. After Mr. Carrion declined to go through with this wedding, Ms. Giunta made a visit to her friends Brian and Tara Garrett in Alabama. During this trip to Alabama, in October 2003, she explored the possibility of starting a new life there and looked into schools, housing prices and job opportunities.

Later in October 2003, Mr. Carrion visited New Jersey for the purpose of once again asking Ms. Giunta to marry him. She refused, and he returned to South Carolina.

In January 2004, Mr. Carrion moved from South Carolina to New Jersey, with the object of winning back Ms. Giunta's affections and to be closer to Alexis. Ms. Giunta refused to renew their romantic relationship. There was conflicting testimony from the parties over whether she permitted him to visit with Alexis. She filed a domestic violence complaint, contending that Mr. Carrion was harassing her, and she obtained a temporary restraining order. The TRO was dissolved and the complaint dismissed after a final hearing.

In March 2004, Ms. Giunta moved to Alabama, taking Alexis with her without Mr. Carrion's consent or permission of the court, in violation of N.J.S.A. 9:2-2. He filed an order to show cause on April 1, 2004, seeking to prevent her from relocating out of state with Alexis and seeking visitation. On April 7, 2004, the return date of Mr. Carrion's order to show cause, Judge Farber took limited testimony from both parties and entered an order granting Ms. Giunta temporary permission to remain in Alabama with Alexis pending a plenary hearing on the relocation issue. He also set a visitation schedule.

The plenary hearing was held on July 14, 2004 before Judge McGovern. Following the hearing, he placed an oral opinion on the record on July 28, 2004.

Judge McGovern credited Mr. Carrion's testimony that when he came to New Jersey in January 2004, it was "to be closer to his daughter and . . . to see if he could resuscitate or revive the relationship that he had with Ms. Giunta." However, most significantly, the judge found credible Ms. Giunta's testimony that she had good faith reasons for wanting to relocate to Alabama, to make a fresh start and to be able to live in a location where she could afford to buy a house:

Ms. Giunta indicated that she had several reasons for the move. She wanted to make a fresh start. She . . . had a plan in mind and has had a plan in mind for a substantial period of time, that by the time Alexis was five years of age, she wanted herself and Alexis to be in a house or home of their own.

She indicated that she felt constricted and limited by having to reside with her parents in Branchville, New Jersey. She was living in the basement area . . . of her parents' house with Alexis. She was looking for better opportunities career wise and economically for herself and her daughter. . .

[S]he felt, based upon current market conditions, that she could buy even a new residence [in Alabama] for around $100,000, where a . . . similar residence in New Jersey, and probably not new, would cost at least double that. . .

The point that Ms. Giunta made, which I find is accurate and I accept as a fact, is that the cost of living in Alabama is substantially less than in the Northern New Jersey area. . .

So I find that Ms. Giunta expressed what I consider to be valid reasons for the move.

While Judge McGovern understood Mr. Carrion's perception that Ms. Giunta had moved to Alabama in order to get away from him and to deprive him of "a relationship and parenting time with their daughter," he concluded that that was not her "principal or primary" motivation. He based this conclusion on Ms. Giunta's testimony and on the testimony of her friend Brian Garrett that she had visited him and his wife in Alabama months before Mr. Giunta came to New Jersey. During that visit, in October 2003, "the seed so to speak was planted in the ground at that point, for Ms. Giunta thinking about and considering a relocation to the East Aboga, Alabama area where the Garretts live."

The judge also found that Mr. Carrion has no significant connection to New Jersey:

Mr. Carrion testified that he had resided in South Carolina for a substantial period of time, [and] relocated to Sussex county in early January of this year. He had been in Sussex County for perhaps six or eight weeks at the time Ms. Giunta relocated to Alabama with Alexis. Other than his intermittent visits in 2003 with Ms. Giunta and Alexis, there really was no significant contact between Mr. Carrion and the State of New Jersey.

The judge also found that the educational, health and leisure opportunities available for Alexis in Alabama were "roughly equal" to those in New Jersey. He also found that Mr. Carrion would be allowed "a visitation and communication schedule" with Alexis, and that, while Ms. Giunta could have done a better job of fostering communication, the judge was satisfied that if relocation was permitted she would cooperate with visitation and communication between Mr. Carrion and Alexis.

Finally, and significantly, the court found that Mr. Carrion could relocate to Alabama or a nearby area such as Atlanta, Georgia. "He may not want to relocate and is not required to relocate, but he could relocate to an area closer to where Ms. Giunta now resides with the parties' daughter." Based on these factual findings, Judge McGovern concluded that Ms. Giunta had satisfied her prima facie burden under Baures v. Lewis, 167 N.J. 91, 118 (2001), of establishing that she had a good faith reason for the move, that the move "will not be [inimical] to the child's interests," and that she had offered a visitation proposal. He also concluded that Mr. Carrion "is the person who is more easily able to relocate at this point." He reviewed all of the Baures criteria and concluded that Ms. Giunta had satisfied them.

II

We will defer to the trial court's factual findings "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998)(citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). And we give particular deference to decisions of the family courts because they possess special expertise in family related actions. Id. at 412-13 (citing Brennan v. Orban, 145 N.J. 282 (1996)).

The parties agree that in deciding a removal application a trial court should apply the factors set forth in Baures, supra, 167 N.J. at 116-17:

[I]n assessing whether to order removal, the court should look to the following factors relevant to the plaintiff's burden of proving good faith and that the move will not be inimical to the child's interest: (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; (12) any other factor bearing on the child's interest.

And, pertinent to this case, the Baures court noted:

It goes without saying that a noncustodial parent who is lackadaisical or sporadic in his or her visitation ordinarily will be unable to prevail in a removal case. That is not by way of retaliation for past inadequacies but because he or she will not be able to show that particularized harm will occur from removal.

[Id. at 120.]

On this appeal, plaintiff raises the following arguments:

POINT I: THE HEARING OF APRIL 7, 2004 TEMPORARILY ALLOWING RELOCATION OF THE DEFENDANT TO ALABAMA WAS A VIOLATION OF PLAINTIFF'S DUE PROCESS RIGHTS AND TAINTED THE SUBSEQUENT PROCEEDINGS.

POINT II: DEFENDANT FAILED TO MEET THE BURDEN IMPOSED ON HER BY BAURES V. LEWIS, 167 N.J. 91 AND MUST BE COMPELLED TO RETURN TO NEW JERSEY.

Having reviewed the record, we are satisfied that the trial judge properly applied the Baures factors and reached a correct result based on the evidence. We conclude that none of defendant's arguments have sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.

The earlier hearing before Judge Farber concerning temporary relocation had no impact on the outcome of the later hearing on permanent relocation. Judge McGovern held a de novo testimonial hearing, and his findings of fact were based on the evidence presented at that hearing and not on Judge Farber's findings.

Judge McGovern's conclusions were amply supported by the July 14, 2004 hearing record. Mr. Carrion had no connection to New Jersey until he moved here in January 2004, a relatively short time before Ms. Giunta relocated to Alabama. His most significant recent residential history is in South Carolina, and he is in a much better position to relocate to Alabama than Ms. Guinta is to move back to New Jersey. Ms. Giunta had cogent, good faith reasons to relocate to Alabama, based on the lower cost of living and the affordability of housing there. She is currently employed in her chosen profession, nursing. Mr. Carrion, on the other hand, has a job selling cars while he contemplates possibly pursuing a permanent career in teaching. He admitted he had not looked into the availability of car sales jobs in Alabama, because that was not the permanent career he wanted.

We also note that throughout most of their relationship, the parties planned to live together in South Carolina when and if they got married; neither party initially had any plan or commitment to live in New Jersey. Once she moved here, Ms. Giunta made significant efforts to accommodate Mr. Carrion's expressed, but repeatedly broken, commitments to marry her, including resigning from her job in New Jersey in the expectation of moving to South Carolina to be with Mr. Carrion. It is unreasonable to now expect Ms. Giunta to settle permanently in New Jersey, rather than in Alabama, to suit the convenience of Mr. Carrion.

 
Affirmed

(continued)

(continued)

11

A-1800-04T1

February 10, 2006