KATHERINE MULHOLLAND v. MICAH KHAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

KATHERINE MULHOLLAND,

f/k/a KATHERINE WHEELER,

Plaintiff-Appellant,

v.

MICAH KHAN,

Defendant-Respondent.

January 28, 2014

Argued January 14, 2014 Decided

Before Judges Alvarez, Ostrer and Carroll.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FD-04-881-07.

D. Ryan Nussey argued the cause for appellant (Klineburger and Nussey, attorneys; Mr. Nussey, on the brief).

Scott J. Levine argued the cause for respondent.

PER CURIAM

Plaintiff, Katherine Wheeler, and defendant, Micah Khan, have one daughter from their prior relationship, presently age nine. Plaintiff appeals the Family Part order denying her permission to remove the child from New Jersey to the vicinity of Albany, New York. Plaintiff's main contentions are that the trial court erred in failing or refusing to consider the parenting plan that she presented at oral argument on her initial application, and then improperly treated her second application for relocation as a motion for reconsideration. For the reasons that follow, we reverse the trial court's orders, and remand for further proceedings consistent with this opinion.

The parties share legal custody of their nine-year-old daughter. Plaintiff, who lives with the child in New Jersey, is the parent of primary residence. She is the daughter's primary caregiver, and takes the child to and from school, to doctor's appointments, and generally cares for her day-to-day needs. Defendant has parenting time with his daughter on alternating weekends, and also one evening per week from 4:00 to 8:00 p.m. Defendant initially only had supervised visitation with his daughter, as he was intermittently incarcerated during the first few years of the child's life.

Plaintiff was in a committed relationship with Sean Mulholland for five years, during which they lived together for the last two years. According to plaintiff, Mulholland helped support her daughter, both financially and emotionally. The two were engaged at the time plaintiff filed her initial removal application on May 9, 2013, and subsequently married on July 20, 2013.

In anticipation of Mulholland receiving an employment offer with a company in the Albany area, plaintiff moved before the Family Part, Camden County, to relocate to New York with the child. In her moving papers, she explained the support that Mulholland had provided to her and the child over the course of their relationship, and the substantial financial benefit they would realize as a result of Mulholland's prospective new employment. Defendant did not file a written reply to plaintiff's application, other than a one-page certification in which he sought the judge's recusal.

During oral argument on June 14, 2013, plaintiff amplified the basis for her removal application. She explained that Mulholland had now been offered a medical sales position with a company in the Albany area that would triple his existing salary. Although she had filed the application while Mulholland was still interviewing for the job, she knew she had to act quickly, and in fact Mulholland was now scheduled to start his new position the following Monday. His new employment afforded them the opportunity to move from their smaller apartment to a home in a nicer neighborhood, with a better school system. Also, plaintiff would no longer have to work full-time, which would permit her to spend more time with her daughter.

Plaintiff did not submit a written parenting plan with her moving papers. Rather, she formulated and brought to court a parenting schedule that would allow defendant parenting time with the child forty-three to forty-six overnights annually, as opposed to the forty-five that he had presently. Also, the daughter had her own iPod, and could communicate with defendant via Facetime and Skype. Several times during the hearing plaintiff sought to present her proposed parenting plan. However the judge declined to consider it, because it had not been included with the moving papers.

Defendant opposed the application, informing the court that he believed it was made in bad faith, that it would uproot the child from various extended family members, friends, and classmates, that it would be impractical and unaffordable for him to drive that distance to see the child, and that the move would not be in the child's best interests.

In her decision, the judge reviewed the various factors enunciated in Baures v. Lewis, 167 N.J. 91, 116-117 (2001). Under Baures, the parent seeking to relocate the child has the initial burden to "produce evidence to establish prima facie that (1) there is a good faith reason for the move and (2) that the move will not be inimical to the child's interests. Included within that prima facie case should be a visitation proposal." Id. at 118. Once the moving party establishes a 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 best interest." Id. at 119. Ultimately,

[T]he 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.

[Id. at 116-17.]

Reviewing the Baures factors, the judge found that plaintiff had demonstrated a "good reason" for the move, which would "increase the financial income of Mr. Mulholland." The court also found that the nine-year-old daughter would have educational, health, recreational and leisure opportunities in New York, comparable to those in her present school district. The court also noted that there was no discussion necessary with regard to the Baures factor concerning any special needs or talents of the child, which did not apply in this case.

The court found that it was uncertain what the visitation and communication schedule would be, because plaintiff had not provided it with her moving papers. The judge acknowledged that with advances in technology, defendant could contact his daughter with ease, but she was unable to rule on how much parenting time defendant required to foster and maintain their relationship.

As to the remaining factors, the court determined that it had "no reason to believe that Ms. Wheeler would not foster a relationship if the move is allowed." The court also noted that the parties did not have any extended family near Albany, New York, and that the child was too young to have a preference, and was not entering her senior year of high school. Defendant indicated at the hearing that he did not have the ability to relocate, and the court so found.

The judge concluded that plaintiff did not establish a prima facie case for relocation, as she had not provided the court or defendant with a proposed parenting plan for consideration with her motion. Accordingly, the burden did not shift to defendant to produce evidence opposing the move. The court denied plaintiff's application.

Thereafter, plaintiff retained counsel and filed an Order to Show Cause and an Application to Relocate on June 26, 2013. This new application included a proposed parenting schedule, which plaintiff asserted would afford defendant time comparable to that which he currently enjoyed under the existing parenting time order. Plaintiff also attached Mulholland's offer of employment as a Trauma Sales Consultant, dated June 13, 2013. The letter indicated that he was to be compensated on the sale of medical device products through commissions. His earnings were projected to be approximately $90,000, whereas he previously earned $30,000 annually. Plaintiff also attached the profile for the home Mulholland rented in New York, and an analysis of the competing school systems.

In response to plaintiff's second application for relocation, defendant also retained counsel, and filed a cross-motion requesting custody of the nine-year-old daughter. He also labeled plaintiff's second application as a motion for reconsideration. Khan represented that the child has extended family in New Jersey, including her half-sister and half-brother. He requested full custody and indicated that he could move to his parents' house, so his daughter could attend that school district.1

Defendant also claimed that plaintiff's request to relocate was made in bad faith, as she would be moving to an area she could not afford, and she would be unemployed for a period of time, which would not provide financial security.

Defendant also alleged that he visited with his daughter more often than what was listed in the existing order, and that the proposed visitation schedule did not take into account other times that his daughter is with his family. He also opposed the motion based on his belief that plaintiff would not continue to foster his relationship with their daughter if they moved to New York.

Defendant further disputed plaintiff's claim regarding Mulholland's proposed $90,000 compensation, and pointed out that it was entirely based on commissions, which were not guaranteed. Defendant also questioned why plaintiff could not continue working in her present job where she could earn $25,000 to $35,000 annually, while her fiancé had also earned approximately that amount; thus they would be in "almost the same position" that they would be in New York.

In her reply certification, plaintiff pointed out that defendant does not have residential custody of his own son and daughter, the child's half-siblings, so the child did not see them that often. She also noted at the time of the motion, defendant was approximately $7,000 in arrears on his child support obligation.

On July 26, 2013, the court again denied plaintiff's request to relocate. The court treated her request as a motion for reconsideration, which was subject to a stricter standard of review under Rule 4:49-2 and applicable case law. The judge stated that she was unable to differentiate the current motion from the earlier one. She found that the parenting schedule that was presented could have been presented initially in the first motion. The judge further concluded that she had not acted in an arbitrary, capricious or unreasonable manner in her initial ruling. The judge also denied defendant's cross-application for custody, finding that no substantial change in circumstances had been shown. This appeal followed.

"Generally, the special jurisdiction and expertise of the family court requires that we defer to factual determinations if they are supported by adequate, substantial, and credible evidence in the record." Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012). This court owes "particular deference" to the family courts because of their "special jurisdiction and expertise in family matters." Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Such deference will be "disturbed only upon a showing that the findings are 'manifestly unsupported by or inconsistent with the competent, relevant[,] and reasonably credible evidence' to ensure there is no denial of justice." Milne, supra, 428 N.J. Super. at 197, (quoting Platt v. Platt, 384 N.J. Super. 418, 425 (App. Div. 2006)).

"The Family Court possesses broad equitable powers to accomplish substantial justice." Finger v. Zenn, 335 N.J. Super. 438, 446 (App. Div. 2000), certif. denied, 167 N.J. 633 (2001). This court, however, will not defer to a family court's decision where the court abused its discretion. See, e.g., State ex rel. J.A., 195 N.J. 324, 340 (2008). "An abuse of discretion 'arises when a decision is "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis."'" Milne, supra, 428 N.J. Super. at 197 (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)). The family judge's legal decisions are subject to this court's plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007).

While plaintiff's Notice of Appeal only references the July 26, 2013 order, because the trial court treated plaintiff's second application as a motion for reconsideration of its June 14, 2013 order, our analysis lends consideration to the proceedings that resulted in both orders.

Having reviewed the record, we conclude that the trial court mistakenly exercised its discretion in failing to consider plaintiff's proposed parenting plan with her initial removal application. It is undisputed that plaintiff was mindful of her obligation to submit such a plan, but was simply confused about the procedure to submit it. She clearly had formulated the visitation plan in advance, and was prepared to present it at the June 14, 2013 hearing. We appreciate the judge's concern that plaintiff's failure to include it with her moving papers compromised the ability of both the court and defendant to review and respond to it. However, rather than rejecting this evidence entirely, the court more appropriately should have adjourned the hearing briefly to allow for its review and any additional response by defendant. Alternatively, since plaintiff's second application was filed in close proximity to the first, the court should have considered plaintiff's parenting plan anew at the second hearing, rather than analyzing it under the more exacting standards applicable to a motion for reconsideration, which we touch on next.

The decision to grant or deny a motion for reconsideration is addressed to the motion judge's sound discretion. Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002); D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). "Motions for reconsideration are granted only under very narrow circumstances[.]" Fusco, supra, 349 N.J. Super. at 462. Reconsideration is reserved for those cases where "either (l) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence." Ibid. (quotation and citations omitted).

Alternatively, if a litigant wishes to bring new or additional information to the [c]ourt's attention which it could not have provided on the first application, the [c]ourt should, in the interest of justice (and in the exercise of sound discretion), consider the evidence. Nevertheless, motion practice must come to an end at some point, and if repetitive bites at the apple are allowed, the core will swiftly sour.

[Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996).]

In the present case, even if the court was correct in treating plaintiff's second removal application as a motion for reconsideration, it is apparent that reconsideration was warranted. Plaintiff's visitation proposal constituted probative, competent evidence under Baures, that the court did not consider in its initial ruling. Additionally, plaintiff submitted documentation from Mulholland's new employer that had not been available at the time she filed her first application.

We are further satisfied that had plaintiff's visitation plan properly been considered, her proofs were sufficient to meet her initial burden to establish prima facie that she had a good faith reason for the move, and that it would not be inimical to the child's interests. Under Baures, and contrary to the trial court's ruling, the burden of going forward should have then shifted to defendant to demonstrate that plaintiff's application was not made in good faith, or that relocation would be inimical to the child's best interests.

We thus reverse the court's denial of plaintiff's removal application. We remand to the trial court, which shall consider all relevant evidence anew. Since we are advised that plaintiff and the nine-year-old daughter remain in New Jersey, and that Mulholland has relocated to New York and is working in his new position, the trial court shall accelerate the hearing, after allowing appropriate time for limited discovery and any additional submissions by the parties. We leave it to the trial court to determine whether a plenary hearing is required, recognizing that,

[A] plenary hearing is not necessary in every case where removal of children is at issue, but rather only where a prima facie showing has been made that a genuine issue of fact exists bearing upon a critical question such as the best interests of the children, interference with parental rights, or the existence of a good faith reason to move.

[Barblock v. Barblock, 383 N.J. Super. 114, 123 (App. Div.), certif. denied, 187 N.J. 899 (2006), (citing Pfeiffer v. Ilson, 318 N.J. Super. 13, 14 (App. Div. 1999)).]

1 With her reply, plaintiff attached documentation that this house was facing foreclosure, and was subject to a substantial mortgage through the church run by defendant's family.