M.W. v. M.D.W.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

M.W.,

Plaintiff-Respondent,

v.

M.D.W.,

Defendant-Appellant.

________________________________________

January 15, 2014

Argued November 12, 2013 Decided

Before Judges Ashrafi and Leone.

On appeal from the Superior Court of New Jersey, Family Division, Essex County, Docket No. FV-07-2012-10.

M.D.W., appellant, argued the cause pro se.

M.W., respondent, pro se has not filed a brief.

PER CURIAM

Defendant M.D.W. appeals from an order denying a change in custody of the children he had with plaintiff M.W. Defendant complains that plaintiff moved the children out of state without a hearing under Baures v. Lewis, 167 N.J. 91 (2001). He also seeks to rescind the Property Settlement Agreement (PSA). We affirm.

I.

Plaintiff and defendant married and had two children, J.W. born in 1998, and M.W. born in 2001. In early 2010, the parties appeared before a judge under the non-dissolution (FD) docket, apparently concerning custody of the children. On or about February 5, 2010, plaintiff filed a complaint for divorce under the matrimonial (FM) docket.

On February 8, 2010, plaintiff filed a complaint under the domestic violence (FV) docket, and obtained a temporary restraining order under the Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (the Act). At the February 16, 2010 hearing on whether to grant a final restraining order (FRO), plaintiff testified that defendant knocked her down. The judge credited plaintiff, found defendant committed harassment and simple assault, and granted an FRO.

At the FRO hearing, plaintiff also testified that, before the incident, she and defendant agreed to start anew in Burlington County, her employer agreed to transfer her there, but defendant then reneged. Thereafter, plaintiff increasingly stayed with her parents in Philadelphia to avoid the lengthy commute to work and to seek refuge from defendant. The judge found "plaintiff's explanation as to why she had not been in the State of New Jersey to be credible."

Plaintiff further testified that, if the FRO was granted, she might try to move the children from their school in the Bronx to a school in Burlington County. Defendant claimed that plaintiff had been living in Philadelphia from 2008 until January 10, 2010, and that she was attempting to move the children to Philadelphia. Plaintiff confirmed that she owned a house in Philadelphia, and that she was a permanent resident of Pennsylvania.

In the FRO, the judge granted plaintiff temporary custody of the two children, and established supervised visitation for defendant. The judge also awarded plaintiff exclusive possession of the marital home in Newark, and gave her the option of living in her second home in Philadelphia and enrolling the children in school in Burlington County. Because plaintiff "lives out of state," the judge expressed concern that there had not been a Baures hearing.

On August 31, 2010, the FV judge granted defendant's request to vacate the restraint barring him from the marital home, because plaintiff had moved out. Plaintiff stated that the children were enrolled in school in Burlington County, and that she was living in a confidential location. Defendant alleged plaintiff was living in Philadelphia, and expressed concern that she had removed the children from the State without a Baures hearing.

On October 26, 2010, the parties placed upon the record a complete and final agreement settling their divorce action under the FM docket by a new judge who handled the subsequent proceedings. The judge ordered the parties' agreement reduced to writing. Defendant's attorney agreed to draft the agreement.

Ultimately, a written Property Settlement Agreement (PSA) was prepared and signed by the parties. The PSA stated that plaintiff was residing in Philadelphia, that defendant was residing in the former marital home in Newark, and that each would retain those respective properties. The PSA provided that the parties would have joint legal custody of the children, with plaintiff being the parent of primary residence. Under the PSA, defendant received unsupervised parenting time which would increase after six months to every other weekend.

On October 18, 2011, under the FM docket, defendant requested to change custody, again expressing concern at the absence of a Baures hearing. Observing that defendant was "asking essentially for a retroactive [Baures] hearing," the judge ordered an evaluation of the children's best interests, and said she would thereafter take testimony on defendant's "application for the [Baures] hearing."

On December 9, 2011, the judge clarified that the hearing would be on defendant's "application asking for a change in custody." The judge noted that the best-interest evaluation and interviews of the children did not show "a reason to change custody at this time." The judge scheduled a custody hearing. Defendant noted that neither he nor the court could locate a copy of the PSA.

At the custody hearing on June 26, 2012, the judge noted that she had received a supplemental report on the children's performance at school. Defendant complained that the copy of the PSA plaintiff had just supplied him with showed she had not signed it until June 25, 2012. Defendant therefore wanted to rescind the PSA. Defendant again noted that there had been no Baures hearing. Defendant called a student whom he had coached, who testified to defendant's character, and who accused plaintiff of executing a plan to move the children to Philadelphia. Defendant presented a 2009 letter from plaintiff bearing a Philadelphia address. Defendant also presented a letter from the children's former school in Bloomfield, urging that defendant should be a part of the children's lives. Defendant testified that plaintiff was leaving the children alone, dressing them inadequately for the cold weather, dating other men, and providing insufficient extra-curricular activities. Defendant argued that he could provide a better home and school environment.

On July 19, 2012, the judge issued her decision in the form of an amended FRO. It stated:

[R]estraints to continue. Defendant's motion for a change in custody be and is hereby denied on the grounds that it would be in the children's best interest to continue to live with plaintiff and continue to have weekend parenting time. [J.W.] is doing well both socially and academically and is flourishing under the current arrangement. [M.W.] is doing well socially, [but] does have some academic issues that need to be addressed promptly.

II.

We must hew to our limited standard of review. "[A]n appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citation omitted). Moreover, "[w]e accord particular deference to the judge's factfinding because of 'the family courts' special jurisdiction and expertise in family matters.'" Clark v. Clark, 429 N.J. Super. 61, 70 (App. Div. 2012) (quoting Cesare, supra, 154 N.J. at 413). "To the extent that the trial court's decision constitutes a legal determination, we review it de novo." D'Agostino v. Maldonado, __ N.J. __ (Oct. 3, 2013) (slip op. at 15).

III.

On appeal, defendant complains that no removal hearing was held under Baures and N.J.S.A. 9:2-2. N.J.S.A. 9:2-2 provides in pertinent part:

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.

The statute's purpose is "'to preserve the rights of the noncustodial parent and the child to maintain and develop their familial relationship'" through visitation, which may be seriously affected by removal. Morgan v. Morgan, 205 N.J. 50, 61 (2011) (quoting Cooper v. Cooper, 99 N.J. 42, 50-51 (1984)).

In Baures, the Supreme Court held that, to justify removal, the custodial parent has the "burden of proving good faith and that the move will not be inimical to the child's interest." Baures, supra, 167 N.J. at 116. The Court instructed trial courts to 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; (12) any other factor bearing on the child's interest.

[Id. at 116-17.]

Here, Baures and N.J.S.A. 9:2-2 were applicable once plaintiff removed the children to Pennsylvania. The Superior Court apparently obtained jurisdiction over the custody of the minor children in the FD docket, and then awarded plaintiff temporary custody of the children in the FV docket. Therefore, plaintiff was not allowed to remove the children to a permanent residence in another State without defendant's consent, or a court order under N.J.S.A. 9:2-2 and Baures.

Defendant has not supplied us with the FRO. However, the transcript of the FRO hearing reveals that the judge permitted plaintiff to exercise her temporary custody of the children in Philadelphia. In awarding temporary custody, the judge considered some of the Baures factors. However, as the judge recognized, she did not conduct a full Baures hearing.

The need to conduct a full Baures inquiry eventually is not removed because plaintiff brought a proceeding under the Domestic Violence Act. The Act permits an award of "temporary custody," with a presumption "that the best interests of the child are served by an award of custody to the non-abusive parent." N.J.S.A. 2C:25-29(b)(11). The Act also acknowledges that the victim may have to relocate from the parties' residence. N.J.S.A. 2C:25-29(b)(2) (permitting a judge to "order the defendant to pay the victim's rent at [another] residence" if it is not possible for the victim to remain in the residence). However, if the victim proposes to remove the children to reside permanently in another State, the victim must meet the requirements of N.J.S.A. 9:2-2 or Baures even though she had received temporary custody under the Act. See N.J. Div. of Youth & Family Servs. v. T.M., 399 N.J. Super. 453, 466 (App. Div. 2008) (requiring consideration of the Baures factors even though custody was granted to an out-of-state relative under the Kinship Legal Guardian statutes).

We do not suggest that a full Baures inquiry must be conducted as part of the FRO hearing. Domestic violence must be addressed immediately, and FRO hearings must be conducted within ten days of the initial complaint. N.J.S.A. 2C:25-29(a). This tight timeframe may not accommodate the discovery that may be necessary before considering all of the Baures factors, such as the "educational, health and leisure opportunities" available to the children in the new location. Baures, supra, 167 N.J. at 116. Further, often-crowded domestic violence calendars may not easily accommodate a lengthy Baures hearing. See Barblock v. Barblock, 383 N.J. Super. 114, 122 (App. Div.) (noting "evidentiary proceedings usually will be required to sort out competing factual and expert assertions about the merits of the proposed removal"), certif. denied, 187 N.J. 81 (2006).

Such administrative difficulties, however, do not render a Baures hearing unnecessary if the temporary relocation becomes the removal of a child to a permanent residence in another State. Thus, the judge at the FRO hearing was appropriately concerned that a Baures hearing was required if plaintiff planned to remove the children permanently to Pennsylvania.

The FRO judge could have required plaintiff to file a motion under N.J.S.A. 9:2-2, or simply scheduled the Baures hearing. Once defendant repeated that concern at subsequent hearings, a Baures hearing should have been scheduled under the FM docket.

The need for a Baures hearing was mooted by the parties' divorce settlement, however. As stated in the PSA, the parties reached "a complete and final settlement" on child visitation and other issues, "as well as a determination and disposition of any and all other claims which either of the parties had asserted, or may have asserted." The PSA expressly provided:

The parties have carefully weighed the question of the custody of the Children. The parties shall have joint legal custody of the unemancipated Children born of the marriage, with Wife having primary residential custody.

The PSA also recognized that plaintiff's primary residential custody would occur in Pennsylvania. The PSA stated that plaintiff was residing in Philadelphia, that she would retain her residence in Philadelphia, and that "Husband shall pick the Children up at Wife's residence in Philadelphia and drop them off at the same place."

"'New Jersey has long espoused a policy favoring the use of consensual agreements to resolve marital controversies.'" J.B. v. W.B., 215 N.J. 305, 326 (2013) (quoting Konzelman v. Konzelman, 158 N.J. 185, 193 (1999)). "Voluntary agreements that address and reconcile conflicting interests of divorcing parties support our 'strong public policy favoring stability of arrangements' in matrimonial matters." Konzelman, supra, 158 N.J. at 193 (quoting Smith v. Smith, 72 N.J. 350, 360 (1977)). Thus, "'fair and definitive arrangements arrived at by mutual consent should not be unnecessarily or lightly disturbed.'" Id. at 193-94 (quoting Smith, supra, 72 N.J. at 358).

"As contracts, PSAs should be enforced according to the original intent of the parties." J.B., supra, 215 N.J. at 326. Here, the parties' evident intent was that the children would be primarily residing with plaintiff in Philadelphia. Defendant has cited nothing in the PSA or the oral agreement which contradicts this natural reading of the PSA.1

"Substantial deference is to be accorded to parents' mutually-agreed-upon decisions with respect to custody and visitation," including "the parents' agreement regarding the physical situs of the children." Cooper v. Cooper, 99 N.J. 42, 66 (1984) (Schreiber, J., concurring). Here, the parties' agreement reflected the children's situs as it already existed. Cf. Shea v. Shea, 384 N.J. Super. 266, 271 (Ch. Div. 2005) (distinguishing the situation "where a request for removal comes shortly after the settlement of the Final Judgment of Divorce"). We see nothing unfair in the terms agreed to in the PSA, which provides a parenting time arrangement for defendant. Therefore, the parties' agreement mooted the need for a Baures hearing. See Stewart v. Stewart, 59 N.J. 301, 304 (1971) (finding a custody issue mooted "by agreement between the parties" allowing the children to reside with the mother).

Of course, if a party meets "the threshold standard of changed circumstances," he may obtain an evidentiary hearing to modify a PSA. J.B., supra, 215 N.J. at 326 (citing Lepis v. Lepis, 83 N.J. 139, 146-48 (1980)). Here, on October 18, 2011, the judge ordered an evidentiary hearing, observing that defendant was requesting a retroactive Baures hearing. However, on December 9, 2011, the judge made clear that the hearing would be on defendant's "application for a change in custody," that defendant would go "first because this is [his] application," and that in the reports on and interviews of the children, defendant had not "shown . . . a reason to change custody at this time." Cf. Baures, supra, 167 N.J. at 118 (ruling that the custodial parent as "the moving party ultimately bears a two-pronged burden of proving a good faith reason for the move and that the child will not suffer from it"). At the June 26, 2012 hearing, the judge again treated the hearing as addressing a "custody issue," and told defendant, "this is your application. You're going first. You're asking for custody." The judge then issued an amended FRO denying "defendant's motion for a change in custody."2

Defendant's appellate brief does not directly attack that custody determination, or show any changed circumstances justifying a change in custody. Instead, defendant primarily assails the initial failure to comply with the requirements of N.J.S.A. 9:2-2 and Baures. That failure became moot, however, once the parties entered into the PSA allowing plaintiff to reside in Philadelphia with the children. Defendant's testimony at the June 26, 2012 hearing presents no basis for reversing the judge's decision declining to alter the custody arrangement in the PSA. Nor do we find any reason to reopen the Baures issue, given the parties' PSA. See Barblock, supra, 383 N.J. Super. at 127 (declining to "compel a plenary hearing [on removal] that would only disrupt the lives of the parties and their children and be very unlikely to lead to a different outcome").

IV.

Defendant also argues that he should have the right to rescind the PSA. He complains that plaintiff did not submit the PSA to the court until the June 26, 2012 evidentiary hearing, and did not sign it until June 25. Defendant does not deny that he signed the PSA, however. More importantly, he does not deny that the PSA accurately incorporates the terms of the parties' oral settlement agreement entered on the record on October 26, 2010. Furthermore, the judge at the June 26 hearing, before issuing her decision, stated that she would listen to the tape to ensure what was placed on the record on October 26, 2010, was in the PSA.

Defendant argues that he agreed to the terms of the PSA under duress. However, defendant fails to show duress, which is moral compulsion of "'such severity as to overcome the will of a person of ordinary firmness.'" See Shanley & Fisher, P.C. v. Sisselman, 215 N.J. Super. 200, 212-13 (App. Div. 1987) (citation omitted). Defendant states that prior to October 26, 2010, he had only court-arranged visitation which had not occurred since August 2010, and he was "willing to agree to anything that would allow [him] to see [his] children again." This choice does not rise to the level of duress, however. See Massar v. Massar, 279 N.J. Super. 89, 94 (App. Div. 1995); Wertlake v. Wertlake, 137 N.J. Super. 476, 482 (App. Div. 1975). Defendant could have refused to agree, and instead sought resolution of all the issues in a divorce trial. Cf. Segal v. Segal, 278 N.J. Super. 218, 225 (App. Div. 1994) (finding duress where the husband refused to agree to a Jewish ecclesiastical divorce unless the wife waived property rights in the divorce action).

Defendant states he came to believe that "[t]he PSA did not provide me with any advantages but rather disadvantages as it has limited my involvement in the life of my children." Defendant's second thoughts provide no basis to void the PSA, which provides defendant with several advantages, including increased and unsupervised visitation. Absent duress, "unconscionability, fraud, or overreaching in the negotiations of the settlement, . . . no legal or equitable basis exists to reform the parties' property settlement agreement.'" N.H. v. H.H., 418 N.J. Super. 262, 282 (App. Div. 2011) (quoting Miller v. Miller, 160 N.J. 408, 419 (1999)).

Defendant's remaining arguments in his brief are without sufficient merit to warrant further discussion. See R. 2:11-3(e)(1)(E).

V.

As set forth above, we reject the claims raised in defendant's appeal. At oral argument, defendant said he was no longer trying to obtain primary custody over his children or to force plaintiff to move the children back to New Jersey. Instead, he wanted additional parenting time and contact with the children, and was concerned that they be able to engage in suitable extracurricular activities. Those requests are not properly before us. Nothing in our ruling prevents defendant from raising such requests in an appropriate motion under the FM docket.

1 Defendant has not supplied us with the transcript of the October 26, 2010 hearing at which the oral agreement was put on the record.

2 We note the judge heard this matter under the FV docket rather than under the FM docket. However, if there is an open FM docket, "[s]ubsequent applications or modifications for support, custody or parenting time should take place within the FM docket number." Domestic Violence Procedures Manual (2008); see also Finamore v. Aronson, 382 N.J. Super. 514, 520 (App. Div. 2006). The judge also should have issued her decision in an order under the FM docket, rather than relying on the FRO form.