SAMUEL E CARMON, JR v. DONNA J CARMON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5046-09T1

 

 

 

SAMUEL E. CARMON, JR.,

 

Plaintiff-Appellant,

 

v.

 

DONNA J. CARMON,

 

Defendant-Respondent.

________________________________________

April 12, 2012

 

Argued March 6, 2012 - Decided

 

Before Judges Carchman, Baxter and Maven.

 

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

 

Samuel E. Carmon, Jr., appellant, argued the cause pro se.

 

Respondent has not filed a brief.

 

PER CURIAM

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. Lewis1 "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 harmful error to plaintiff. (points 9, 10, 12)

 

ISSUE III:

 

The court failed to verify, retrieve and consider accurate documentation pertaining to defendant's character and conduct during the marriage in its decision to grant relocation. (points 1-6, 14-16, 18, 20)

 

We first consider our standard of review. "[F]indings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." 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 will not disturb the factual findings and legal conclusions of a trial judge unless we are convinced that those findings and conclusions are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms, supra, 65 N.J. at 484. In particular, family courts "possess special expertise in the field of domestic relations," and as such "appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 412-13.

An application for relocation requires consideration of several principles. A parent must obtain consent of the other parent or judicial approval to relocate children domiciled in this State to another state. SeeN.J.S.A.9:2-2. The initial question to be resolved on a removal application is the "extant status of custody of the parties' children." Barblock v. Barblock, 383 N.J. Super.114, 121 (App. Div.), certif. denied, 187 N.J.81 (2006). If the custody situation is a "rare de facto 'shared parenting' arrangement, one in which each parent essentially performs an equal caretaking role," the court analyzes the removal application under the stricter change-of-custody test of O'Connor v. O'Connor, 349 N.J. Super. 381, 399-400 (App. Div. 2002). Barblock, supra, 383 N.J. Super.at 122. Under that standard, "the party seeking the change in the custodial relationship must demonstrate that the best interests of the child[ren] would be better served by residential custody being vested primarily with the relocating parent." O'Connor, supra, 349 N.J. Super.at 398.

If, conversely, the physical custodial relationship among the parents is such that one parent serves as the primary caretaker and the other parent the secondary caretaker, then the custodial parent's request to relocate the children is governed by the two-part test established in Baures, supra, 167 N.J.at 122; Barblock, supra, 383 N.J. Super.at 121; O'Connor, supra, 349 N.J. Super.at 385. Bauresrequires that removal be granted where the preponderance of the credible evidence demonstrates the custodial parent has a good faith reason for the move and the move will not be inimical to the children's interests, i.e., the children will not suffer from it. Baures, supra, 167 N.J.at 118; Barblock, supra, 383 N.J. Super.at 121.

Considering the established principles, we now address plaintiff's arguments. At the outset of his decision, the trial judge addressed the initial legal question regarding the nature of custody of the parties' children and the appropriate analysis to be employed. Plaintiff argued that rather than applying the Bauresanalysis, the court should apply the change of custody "best interests" analysis on either of two bases: (1) the principle espoused in Shea v. Shea, 384 N.J. Super. 266 (Ch. Div. 2005) that the plaintiff could contest custody when removal is sought soon after a negotiated custody settlement; or (2) that the parties have a true shared custody arrangement.

In Shea, the parties agreed upon their initial custody and parenting plan six months prior to incorporating same into their FJD. Id. at 270. Due to their negotiated settlement, rendering a divorce trial unnecessary, the father had no opportunity to contest custody. Id. at 271. The father, having alleged manipulation by the mother, sought a plenary hearing to allow him the opportunity to present evidence and testimony on the nature of the custodial relationship, and application of the best interests analysis. Id. at 273. The Family Part judge concluded that the father was entitled to a plenary hearing, and if he established that the mother had manipulated the Baures removal procedures, the court would apply the best interests standard instead of the Baures analysis. Id. at 273-274.

Plaintiff relies on Shea to claim that this case should be reviewed using the best interests analysis because, like the father in Shea, he would never have agreed to the custodial arrangement if he knew defendant was planning to relocate four months later.

Shea is distinguishable, and any reliance upon it is misplaced. In Shea, the parties' custody arrangement was their first custodial order entered shortly before the divorce. Id. at 268-269. Here, the trial judge noted the extensive history of court orders and consent agreements between the parties throughout the course of their marriage. Particularly, in 2005, plaintiff consented to defendant moving to Kansas with their son. Thereafter, and upon each subsequent separation or restraining order, the parties shared joint legal custody with defendant as the PPR and plaintiff as the PAR. Nothing in the record indicates that plaintiff asserted a claim as primary custodian.

Plaintiff's argument suggesting he was manipulated or misled by defendant into agreeing to the terms of the PSA was not supported by any evidence. In Shea, the court found that while the mother had established a minimum of good faith reasons for the move, i.e., to be closer to her mother who had only recently moved, the other reasons offered were insufficient to constitute good faith reasons. Id. at 273. Additionally, it noted that the mother did not establish any change in circumstances since the FJD to warrant removal. Id. at 271.

The trial judge here specifically found that plaintiff did not produce any evidence of manipulation by defendant. Plaintiff was well aware of defendant's ties to Kansas, as that was where she lived when he met her, where her family lives and where she owns a home. Plaintiff did not produce any evidence that defendant planned to move or was likely to request relocation to Kansas at the time the FJD was entered. To the contrary, defendant testified regarding her changed and worsened circumstances following the divorce, which enhanced her need to relocate. Defendant's good faith reasons for the move included moving closer to family, moving into her townhouse thereby reducing her financial burdens, and capitalizing on two pending job offers. The trial judge noted that plaintiff contributed to the financial hardships that caused defendant to request relocation by failing to pay monies owed to defendant under the divorce settlement in a timely manner, taking the children out of daycare rather than paying the daycare fees as was his obligation, and otherwise failing to uphold his financial responsibilities to defendant and their children.

Ultimately, in choosing to apply the Baures test over the best interests analysis, the court found:

[W]here there appears to be, as there is in this case, . . . either an intentional or a negligent compliance with the Judgment of Divorce that puts the other party in jeopardy . . . [,] [f]undamental fairness does not allow the Shea proofs to go forward. And I find as a fact that there was such turmoil after the divorce that significantly reduced the mother's financial position, when it was clear that she was in difficulty[,] [t]hat it makes the Shea principle not applicable here. In fact, I think it would be fundamentally unfair to do it the other way.

 

We conclude the trial judge's decision to apply the Baures analysis is supported by substantial credible evidence.

II.

Plaintiff offers an alternative argument for applying the custody best interests analysis - that the parties have a true shared parenting arrangement. In support of this position, plaintiff notes the extent of his parenting time, how actively he participates in the children's lives and claims that he was the primary caregiver.

Shared or "joint physical custody" has been defined as "joint responsibility for minor day-to-day decisions and the exertion of continuous physical custody by both parents over a child for significant periods of time." Pascale v. Pascale, 140 N.J. 583, 596 (1995) (citation, internal quotation marks, and internal editing marks omitted). "In determining whether the parties truly share joint physical custody, although the division of the child's time with each parent is a critical factor, the time each parent spends with the child must be analyzed in the context of each parent's responsibility for the custodial functions and duties normally reposed in a primary caretaker." O'Connor, supra, 349 N.J. Superat 385. As we have noted, a true shared parenting arrangement is rare. Barblock, supra, 383 N.J. Super.at 122; O'Connor, supra, 349, N.J. Superat 400.

The trial judge reviewed the evidence and the parties' testimony and made factual findings contrary to plaintiff's position. In characterizing their custody arrangement, the judge found that the parties consistently designated defendant the PPR and plaintiff the PAR. While plaintiff had nearly day-to-day contact with the children2 and participated actively in their lives regarding scholastic, extracurricular, and medical matters, so did defendant. In quantitative terms, defendant had more scheduled custodial hours with the children than plaintiff. Defendant testified, and the trial judge found, that plaintiff would use activities such as medical appointments and school conferences to compete for the children's love and attention. Lastly, the trial judge, noting the continued animus between the parties, found that "for shared parenting to truly work, the parties have to get along and I find that here, that doesn't apply." The judge found, and the evidence supported, that plaintiff's conduct violated the spirit of Pascale.

The trial court did not err in finding that plaintiff did not exercise shared custody over the children. As a result of the thoughtful consideration of the facts and the law, the court's decision to apply the removal factors as set forth in Baures is appropriate and will not be disturbed.

Having determined that the Baures analysis applied, the trial judge evaluated whether defendant made a prima facie showing in support of removal considering the following:

(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.

 

[Baures, supra, 167 N.J. at 116-17.]

 

"The initial burden of the moving party is not a particularly onerous one." Id. at 118. Once the moving party makes a prima facie showing, the burden shifts to the non-moving party to "produce evidence opposing the move as either not in good faith or inimical to the child's interest." Id. at 119.

In finding that defendant possessed a good faith reason for moving to Kansas, the trial judge reviewed the testimony of the parties and found that:

the mother was put in a significant bind. Her house was in foreclosure. She could not get a job. . . .

. . . For whatever reason, she wasn't getting paid the amounts of money that she should have been paid.

 

She had to rely on help from her mother. She testified about $4,000 coming from her mother. . . .

 

. . . .

 

. . . [G]oing back to one's family, having family support, is a legitimate reason to move.

 

. . . [I]t was interesting to me that the father has virtually no relationship with his family. He doesn't take the children to see his family and so he cannot say that the children will miss his family.

 

. . . .

 

. . . [T]he mother credibly testified that she has family. Another instance that I think makes this a good faith application is that she owns a home.

 

. . . .

 

. . . She rented the home. I believe the tenant is no longer there and therefore, I believe that that is a compelling reason for her to go back.

 

Also, during the trial she was offered two jobs. It was not rebutted that she has two jobs that will allow her to work. Her mother is there.

 

And so all of those classic reasons; family support, a home, dovetailed to me for her good faith reasons and I find that she had proven the first prong of the Baures v. Lewis standard.

 

In evaluating the second prong of the Baures analysis, the trial judge noted that defendant submitted an "extensive visitation schedule" to be implemented should she be allowed to move to Kansas, while plaintiff submitted no alternate schedule or proposal. The trial judge found that both parents were equally attendant to their children's school needs. He acknowledged defendant's "liberty interest in being able to locate wherever she wishes, as long as . . . these considerations are met." He noted, "there is [no] testimony that the children will not receive at least equal opportunities in Kansas than here." He believed defendant had fostered and would continue to foster the children's custodial relationship with plaintiff, and noted he had "more doubt" that plaintiff would do the same for defendant. And he contrasted the children's past history and future opportunities for familial relationships in Kansas, which were great, with those in New Jersey, which were minimal. Finally, despite plaintiff's protests that he could not relocate due to the difficulties it would cause him in terms of finding employment, the trial judge found that while moving could affect plaintiff's earning ability, he "could move if [he] wanted to."

Plaintiff provided little evidence either showing that the move would be inimical to the children's interest or rebutting defendant's evidence. Plaintiff's case largely relied upon his position that the move would eliminate his ability to see his children on a near-daily basis and would also possibly reduce the amount of time he spends with his children in the aggregate.

To successfully establish that relocation is not in the children's best interest, more than mere separation or change in parenting time must be shown. Morgan v. Morgan, 205 N.J. 50, 64 (2011) (citing Baures, supra, 167 N.J. at 113, 117). After a careful weighing of the testimony and evidence, the court found that plaintiff did not satisfy his burden of showing that the move to Kansas would be inimical to the children's best interests.

Here, the trial judge considered the testimony and evidence of both parties and made comprehensive findings of fact that are supported by substantial credible evidence. As outlined above, defendant provided good faith reasons for moving to Kansas, and the trial court found those reasons to be credible. Defendant also provided evidence satisfying the eleven factors the Baures Court deemed relevant to deciding whether the move would be inimical to the children.

Plaintiff challenged the trial judge's findings regarding the credibility of the witnesses, particularly defendant. However, it is clear from the record that the judge had a feel for the case, having observed the witnesses and heard their testimony regarding the travails of their marriage. We "defer to the factual findings of the trial court because it has the opportunity to make first-hand credibilityjudgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a reviewof the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J.88, 104 (2008) (citation and internal quotation marks omitted).

III.

Plaintiff's remaining two claims are wholly without merit. Nothing in the record supports plaintiff's claim that the trial judge disregarded relevant materials or documents in rendering his decision. We are satisfied that these arguments do not warrant further discussions in this opinion. R. 2:11-3(e)(1)(E).

Judge Fineman's opinion was a thoughtful and well-reasoned analysis of a complicated custodial situation and was well-supported by the record. There is no basis to disturb his findings and legal conclusions.

Lastly, since we are affirming the May 14, 2010 order, we decline to exercise original jurisdiction to designate plaintiff as the custodian and PPR of the children.

A

ffirmed.

1 Baures v. Lewis, 167 N.J. 91 (2001).

2 Plaintiff had parenting time weekday evenings Monday to Thursday from 4:00 p.m. - 7:00 p.m. and every other weekend Friday night to Monday morning.