WILLIAM F. GREER, III v. TARRA L. KUPREL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3943-05T43943-05T4

WILLIAM F. GREER, III,

Plaintiff-Appellant,

v.

TARRA L. KUPREL,

Defendant-Respondent.

_________________________________

 

Argued: September 19, 2006 - Decided October 24, 2006

Before Judges Coburn, Axelrad and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Passaic County, FD-16-1250-03.

Geri Landau Squire argued the cause for appellant.

Tarra Kuprel, respondent pro se.

PER CURIAM

Plaintiff William F. Greer, III, appeals from an order of the Family Part entered on December 23, 2005, granting defendant Tarra Kuprel permission to relocate to Florida with the parties' three-year-old son William F. Greer, IV ("Billy"), and from the March 6, 2006 order denying plaintiff's motion for reconsideration. We reverse and remand.

The parties began dating in February 1999, and shortly thereafter defendant and her two sons from a prior marriage moved in with plaintiff. The parties' son Billy was born on September 19, 2002. When Billy was approximately two or three months old, defendant moved out of plaintiff's residence with all three children. On January 6, 2003, the parties, each represented by counsel, entered into a consent order in which they agreed to share joint legal custody of Billy by utilizing a shared parenting schedule of four days a week with father and three days a week with mother, with father designated as the parent of primary residence (PPR). The agreement expressly provided that either party could seek a modification from the court.

The parties reconciled and lived together from March through September. On September 23, 2003, they entered into an agreement, both represented by counsel, which, in pertinent part, reaffirmed the parenting schedule of the prior consent order and maintained plaintiff as PPR. Inadvertently, that agreement, though in the form of a consent order, was apparently never submitted to the court for execution and filing. Billy continued to attend daycare on Wednesdays, Thursdays and Fridays, and Billy stayed overnight at his mother's on Sunday and Monday and at his father's from Tuesday through Saturday.

On or about June 28, 2005, after learning that defendant intended to relocate to Florida to live with her mother and had filed an application for leave to take her two older sons, plaintiff filed an order to show cause seeking a restraining order prohibiting defendant from removing Billy to Florida. An order was entered on July 1, 2005, permitting defendant to exercise parenting time from July 12 through August 7, 2005 in Florida, but imposing temporary restraints pending the return date of the hearing. On July 8, 2005, an order was entered, without objection from her former husband, permitting defendant to relocate to Florida with her seven and eight-year-old sons, Larry and Brandon Ball.

On August 14, 2005, defendant filed a notice of motion to change the custody arrangement and relocate to Florida with Billy. On August 22, 2005, the court appointed Paul Dasher, Ph.D. to perform an evaluation concerning the change of custody and relocation. Plaintiff retained Mathias R. Hagovsky, Ph.D. as his expert. On or about September 1, 2005, defendant relocated to Florida with her two older sons.

The trial occurred on December 9 and 12, 2005. Plaintiff testified that he owned his house and worked in his father's excavating business. Plaintiff was responsible for Billy's medical care, and he explained how he scheduled and took the child to his physicians' and dental appointments. He further explained that he fed and dressed Billy and drove him to daycare, and he detailed some of the activities in which they participated. Plaintiff acknowledged that his parents and brother and sister-in-law also enjoyed a very close relationship with Billy and provided assistance in transporting, babysitting and providing advice. Plaintiff contended, however, that he assumed a parental role with regard to Billy. Plaintiff's sister and father also provided limited testimony.

Defendant testified that during the three days a week she spent with Billy, she did "whatever a normal mother would do with their . . . son"; she played with him, took him to the park, or took him to see his cousins. She further testified that Billy had an excellent relationship with his half-brothers, and claimed Billy needed to be with them and with her. Defendant explained that after Billy's birth, she waitressed and bartended on a part-time basis but was having financial difficulties. She decided to relocate to Florida to be near her parents for emotional and financial support; she felt she could "better [her]self and give [her] children a better future." When defendant moved to Florida, she temporarily moved in with her parents. Her mother babysat Billy while defendant bartended from 10:00 a.m. to 6:00 p.m. Defendant testified that she planned to enroll in real estate school and eventually pursue a degree in marketing.

In his report and testimony, Dr. Dasher opined that defendant had a good faith reason for relocating and the relocation, where Billy would be raised by his mother and live with his half-brothers, would not cause him any emotional harm. He based his opinion on the fact that Billy had a very strong bond with his mother and his concern that if Billy stayed in New Jersey, he would be affected by some ongoing issues involving his parents. More particularly, he believed plaintiff had not gotten over the breakup with defendant; he reviewed two certifications submitted by defendant's landlord and a former employer that indicated plaintiff was involved in harassing defendant on numerous occasions, although he never spoke with either affiant; and he was concerned about the "tremendous amount of trashing" of defendant's character by plaintiff's family. Moreover, Dr. Dasher was of the impression that defendant was more involved as a parent and that plaintiff's entire family was involved in raising Billy rather than primarily plaintiff. As Dr. Dasher explained:

Mr. Greer, from the beginning, had a difficult time sort of articulating, talking about himself as a parent. He basically kind of -- seemed kind of rote. He went through the same things pretty much every time I spoke to him about what he does for the child and I just see the mother as being more actively engaged . . .

He had the further sense that plaintiff "wasn't necessarily very comfortable yet, maybe, in that role as a parent, that this was something that he was kind of evolving into himself." Dr. Dasher, however, concluded that Billy was "thriving and well-adjusted while under the care of his father."

Dr. Hagovsky emphasized that plaintiff had been designated as the child's PPR, had functioned in that regard since Billy was three months old, and that defendant had seconded the designation and supported it by virtue of participating in the original parenting plan. He found Billy's relations with his father to be very strong and also found him to be happy to be cared for by plaintiff's extended family members.

Dr. Hagovsky opined that plaintiff and his son had a "very good" relationship and "was impressed by the fact that the interaction effect between the two of them was very animated, that [plaintiff] was very actively involved in the interactive process, very verbally involved, very physically involved." He saw the interaction as "very consistent with the kinds of familiarity and mutuality aspects of attachment that [are] consistent with a parent and someone who's been essentially the primary day to day parent with the child. There was a consistency of that observation with the interaction effect between the child and the father."

Dr. Hagovsky also testified about his conversation with the director of the Precious Years Daycare Center that Billy attended for over two years, noting she described Billy as "a very nice child who . . . interacted very well with other children, had many friends and appeared very comfortable in the program." Dr. Hagovsky further relayed the director's positive comments about plaintiff, noting "[i]t was her view that he was [an] exemplary father and they were very pleased to have him as a member of the school."

Dr. Hagovsky acknowledged that Billy also had a good relationship with his mother but concluded it would be in Billy's best interest to remain in the care of his father, who had been his primary parent, and to arrange a parenting time schedule with his mother that was consistent with his prior experience. Dr. Hagovsky elaborated:

From all the information I obtained, it appeared to me that Billy was comfortable, happy, well adjusted and consistently present to a schedule that had been adhered to ever since he was three months of age, and it appeared clear also to me that to remove him from such a schedule would clearly create a situation of risk to him in that to remove a child from the primary attachment figures very often, if not almost always, has some deleterious effect to them.

In response to the court's questioning, Dr. Hagovsky explained that it is easier for a younger child to adjust to removal than an older child, and if a child must be removed, the adverse impact on a child should be minimized by attempting to find a similar setting for the child in another environment, such as continuing a structured daycare setting.

On December 23, 2005, the court entered an order, supported by a written statement of reasons (opinion), granting temporary custody of Billy to defendant and granting her the right to move with him to Florida, subject to visitation as outlined in the court's opinion. In its opinion the court stated that defendant must establish that it is in Billy's best interest to transfer custody to her as PPR, and that there has been a substantial change of circumstances since the parties' January 3 agreement, citing to Chen v. Heller, 334 N.J. Super. 361 (App. Div. 2000). The court then noted that moving to Florida would allow defendant more time to spend with her children, while improving her lifestyle, because of the financial, emotional and child care assistance of her parents. The court also noted there was testimony of the close relationship between Billy and his siblings, which would be furthered if they all lived together, finding there "appeared to be more stability with the Mother than with the Father." The court inferred from the testimony that "it is clear that Plaintiff's family, more so than Plaintiff, is raising Billy." The court concluded:

Defendant has met her burden for relocation. This Court is not of the opinion that a change of designation of Parent of Primary Responsibility, allowing the child to live primarily with the Defendant and relocate to the State of Florida would be against the best interests of the child or be inimical to his interests.

Following oral argument on January 20, 2006, the court denied plaintiff's motion for reconsideration. In its February 10, 2006 written supplement to its decision, the court concluded:

As a result of everything stated in the initial Court decision of December 23, 2005[,] incorporated herein by reference, this Court is of the belief that it would be in the best interest of the child to reside with his mother and siblings. Whether it be an issue of good faith reason for the move to Florida, would not be detrimental to the child, or the fact that this Court believes the transfer of residential custody to the Defendant mother is in the best interest of the child, the Court is of the firm belief that based upon all of the testimony and facts presented that its decision rendered on December 23, 2005[,] is correct.

Plaintiff raises the following arguments on appeal:

POINT I

THE TRIAL COURT APPLIED AN INCORRECT STANDARD IN ITS ANALYSIS OF WHETHER TO ALLOW THE TRANSFER OF CUSTODY OF THE PARTIES' THREE (3) YEAR OLD SON TO DEFENDANT AND PERMITTING DEFENDANT TO RELOCATE TO FLORIDA WITH THE PARTIES' CHILD.

A. THE TRIAL COURT'S FAILURE TO APPLY THE "BEST INTERESTS STANDARD" WAS ERRONEOUS.

B. THE TRIAL COURT'S FAILURE TO CONSIDER THE APPLICABLE STATUTORY CRITERIA IN N.J.S.A. 9:2-4 WAS ERRONEOUS.

C. THE DEFENDANT DID NOT SATISFY HER BURDEN OF SHOWING THAT THE BEST INTERESTS OF THIS THREE (3) YEAR OLD CHILD WOULD BE BETTER SERVED BY A TRANSFER OF CUSTODY AWAY FROM THE FATHER WHO HAD BEEN HIS PARENT OF PRIMARY RESIDENCE SINCE HE WAS THREE (3) MONTHS OLD.

POINT II

THE TRIAL COURT DID NOT GIVE DUE DEFERENCE TO THE CUSTODIAL RELATIONSHIP AGREED TO BY THE PARTIES, PURSUANT TO A CONSENT ORDER ENTERED INTO BY THE PARTIES AT THE TIME THAT THE CHILD WAS THREE (3) MONTHS OLD, DESIGNATED PLAINTIFF AS PARENT OF PRIMARY RESIDENCE (PPR), WHICH CONTINUED UNTIL THE COURT'S DECISION.

POINT III

THE TRIAL COURT'S DECISION IS NOT SUPPORTED BY ADEQUATE, SUBSTANTIAL, CREDIBLE EVIDENCE ON THE RECORD.

A. THE TRIAL COURT'S DETERMINATION THAT PLAINTIFF "DOES NOT DEMONSTRATE STABILITY IN RAISING THE CHILD" IS NOT SUPPORTED BY ADEQUATE, SUBSTANTIAL, CREDIBLE EVIDENCE ON THE RECORD.

B. THE TRIAL COURT'S DETERMINATION THAT THE CHILD WILL "HAVE A MORE STABLE ENVIRONMENT" IF HE RESIDES WITH DEFENDANT IS NOT SUPPORTED BY ADEQUATE, SUBSTANTIAL, CREDIBLE EVIDENCE ON THE RECORD.

POINT IV

THE TRIAL COURT ERRED IN ITS FAILURE TO CONSIDER THE TESTIMONY AND BEST INTERESTS EVALUATION OF PLAINTIFF'S EXPERT, MATHIAS R. HAGOVSKY, Ph.D., AS IT RELATED TO THE BEST INTERESTS OF THE CHILD AND THE IMPACT OF THE LOSS OF HIS PRIMARY RESIDENTIAL CUSTODIAN.

POINT V

THE TRIAL COURT EXHIBITED BIAS AGAINST THE PLAINTIFF AND THE COURT'S DETERMINATION PERMITTING DEFENDANT TO RELOCATE OUTSIDE THE STATE OF NEW JERSEY WAS PREDETERMINED PRIOR TO CONSIDERATION OF TESTIMONY OF THE WITNESSES AND EXPERTS PRESENTED AT TRIAL.

We agree with plaintiff that the record clearly reflects he was the primary caretaker de jure and de facto. The record does not support the trial judge's conclusion in his February 2006 opinion that "[a]ll things considered, under different circumstances and without apparent threats, the Defendant mother would have and should have been the Parent of Primary Responsibility."

Although defendant told Dr. Dasher that she was harassed and intimidated by plaintiff into signing the initial consent order, we note she entered into the agreement with the representation of counsel. Defendant also ratified the custodial arrangement and parenting schedule eight months later, again with the representation of counsel. Moreover, although the orders provided for modification upon application to the court, defendant did not seek to change the PPR status or parenting schedule until she filed this application to relocate in July 2005. Thus, except for the parties' six-month period of reconciliation (March 2003 to September 2003), plaintiff was the PPR and Billy spent four days a week with him (staying overnight Tuesday through Saturday) and three days a week with his mother (staying overnight Sunday and Monday).

Accordingly, the standard to be applied for relocation was not the less onerous one of Baures v. Lewis, 167 N.J. 91 (2001), i.e., proving a good faith reason for the relocation and that the move will not be inimical to the child's best interest. Rather, the court should have analyzed this matter as a change of custody and considered the best interests of Billy with reference to the statutory criteria set forth in N.J.S.A. 9:2-4c. See O'Connor v. O'Connor, 349 N.J. Super. 381 (App. Div. 2002); Mamolen v. Mamolen, 346 N.J. Super. 493 (App. Div. 2002). Moreover, the trial judge should have referenced the individual statutory criteria with the specificity required under Terry v. Terry, 270 N.J. Super. 105, 119 (App. Div. 1994).

We are concerned with the fact that Dr. Dasher, the expert upon which the court relied, articulated his findings under the Baures standard, i.e., that defendant had a good faith reason for relocating to Florida and the relocation would not cause Billy any emotional harm. He never articulated the opinion, even when directly asked the question by the court, that the move with defendant would be in Billy's best interest. We are also not confident that the trial judge considered the appropriate statutory criteria and applied the best interest test based upon the misstatement in his December opinion that relocation would not "be against the best interest of the child" and the combining of several standards in his February opinion.

Plaintiff requests we remand this matter to the trial court to perform the appropriate change of custody and best interest analysis that should have been performed at the initial hearing. We agree that such remand is necessary. We admire plaintiff's counsel's integrity in acknowledging at oral argument that the matter cannot be considered in a vacuum and that the Family Part judge will also have to consider what has transpired in Billy's life following the December 2005 order permitting his move to Florida.

We do not agree with plaintiff, however, that the circumstances warrant remand to a different Family Part judge. We believe the trial judge has the ability to re-evaluate the testimony of Dr. Dasher and Dr. Hagovsky in light of the appropriate standard, even though the judge previously expressed a preference for one of the experts over the other. We are confident this experienced Family Court judge is capable of performing the mental processes necessary to set aside his earlier decision and revisit the issue anew, with the burden placed on defendant as the non-custodial parent to demonstrate that Billy's interests would be better served by a transfer of custody to her and by his relocation to Florida. See N.J. Div. of Youth and Fam. Servs. v. L.C., 346 N.J. Super. 435, 439-40 (App. Div. 2002) (even where credibility determinations are made by a judge in previous proceedings, there should not be a per se rule disallowing a judge to preside over multiple proceedings in one case); Graziano v. Grant, 326 N.J. Super. 328, 350 (App. Div. 1999) (the Appellate Courts have the authority to assign a matter to a different judge on remand to preserve the appearance of fairness and impartiality, but that power should be used sparingly and some consideration should be given to whether it would be counter-productive to require a new judge to acquaint himself or herself to the litigation). Based on our review of the record, we did not find any evidence of bias exhibited by the trial judge against plaintiff or any indication that "might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so." R. 1:12-1(f). Accordingly, and based on the necessity of scheduling the remand hearing as promptly as possible and in order to avoid further time delay, we believe it would be counter-productive to remand this case to another Family Part judge who would have to acquaint him or herself with the litigation.

We therefore remand this matter to the trial court for reconsideration in light of the appropriate standard, with the burden placed on defendant as the non-custodial parent to demonstrate that Billy's interest would be better served by a transfer of custody to her, N.J.S.A. 9:2-4c, and by his relocation to Florida. The court shall reach its conclusion based on the record previously established and on such further testimony and evidence as it deems necessary to update the status of the parties and make a determination as to Billy's best interests. The court shall schedule a status conference within two weeks so the appropriate hearing can be scheduled as expeditiously as possible in order to avoid further delay of this matter.

Reversed and remanded for a further hearing consistent with this opinion. We do not retain jurisdiction.

 

The opinion also provided for the change in residential custody to be reviewed by the court "on application of the Plaintiff after one year provided appropriate circumstances warrant a review at that time." That provision was inadvertently omitted from the Order.

(continued)

(continued)

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A-3943-05T4

RECORD IMPOUNDED

October 24, 2006