DAVID VALEDOFSKY v. JENNIFER VALEDOFSKY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DAVID VALEDOFSKY,

Plaintiff-Respondent,

v.

JENNIFER VALEDOFSKY, N/K/A

JENNIFER CAVANAUGH,

Defendant-Appellant.

________________________________________________________

October 8, 2014

Argued September 9, 2014 Decided

Before Judges Ostrer and Hayden.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1010-12.

Salvatore A. Simeone argued the cause for appellant (Weiner Lesniak, L.L.P., attorneys; Mr. Simeone and Kelly A. Skopak, on the brief).

Brett Levine argued the cause for respondent (Levine & Levine, attorneys; Mr. Levine, on the brief).

PER CURIAM

In this post-judgment matrimonial matter, defendant mother Jennifer Valedofsky, now known as Jennifer Cavanaugh, appeals from the July 5, 2013 Family Part order permitting plaintiff David Valedofsky to relocate from New Jersey to Rhode Island with the parties' two minor children. For the reasons that follow, we affirm.

The parties married in 2000 and had two children, born in 2004 and 2006. They divorced in Pennsylvania in 2010, and defendant was designated the custodial parent. In 2011, plaintiff, who was living in New Jersey at the time, moved for custody. The Pennsylvania court granted plaintiff primary custody due to reasons not relevant to this appeal.

Subsequently, defendant relocated to New Jersey to be closer to the children and her family. Shortly thereafter, she registered the Pennsylvania custody order and moved before the Family Part to modify the custody order to fifty-fifty shared custody. On March 23, 2012, the Family Part judge denied the motion finding that no material change of circumstances occurred in the short time since the previous hearing, and that defendant did not appear to have addressed the issues that prompted the change of custody. Defendant appealed the order, which we affirmed on April 29, 2013. Valedofsky v. Valedofsky, No. A-3935-11 (App. Div. Apr. 29, 2013).

Meanwhile, in February 2013, plaintiff filed a motion1 to relocate with the children to Rhode Island as he had received a job promotion that entailed a raise and opportunities for further advancement in his company. Additionally, plaintiff's extended family resided in Rhode Island, including his parents and siblings. Defendant opposed the application, arguing that plaintiff did not establish a good faith basis for the move. Defendant also filed a cross-motion seeking a change in custody, alleging that plaintiff alienated the children and was unwilling to cooperate with parenting time.

After hearing oral argument, the motion judge entered an order granting plaintiff's request to relocate. In his statement of reasons the judge analyzed the factors set forth in Baures v. Lewis, 167 N.J. 91 (2001), and found that the request was made in good faith based on the "clear and unambiguous professional advantages to plaintiff's career" and that the move would inure to the benefit of the children. The judge determined that "[t]he formal documentation of this corporate promotion and its terms and conditions is clear and not reasonably subject to material dispute." The judge rejected defendant's objections and motion for custody, finding that they were "continuations of an unhealthy 'custody battle' that has been resolved repeatedly in plaintiff's favor," and the inconvenience presented by plaintiff moving four and one-half hours away was not an independent basis to deny removal. The judge found that the opportunities for the children would be equal to those in New Jersey, and that the proposed visitation schedule was feasible.2 The judge found no relevant factual dispute existed that warranted a plenary hearing, and that the addition of experts and psychological tests and additional discovery would unfairly and unnecessarily leave the children in a state of limbo. This appeal followed.

On appeal, defendant first argues that plaintiff's job opportunity in itself does not satisfy the good faith standard, as plaintiff's promotion was more like a lateral transfer with a mere $11,000 per year raise. She points out that plaintiff acknowledged that he only needed to be in the Rhode Island office bi-weekly and could work from home. She asserts that the move would cause irreparable harm to the children by separating them from their mother. Defendant also argues that a plenary hearing was necessary because factual disputes existed concerning whether plaintiff needed to relocate; whether the schools and opportunities for the children were equal in Rhode Island; and whether plaintiff was alienating the children from her. Defendant finally argues that custody and mental health evaluations of all the parties were essential to assist in the decision of whether the kids should be removed or custody changed. Conversely, plaintiff argues that the trial court's findings and conclusions were supported by the evidence and should be affirmed.

We first consider our standard of review. We will not disturb the actual 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 Resort, Inc., v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citing Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963). 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 v. Cesare, 154 N.J. 394, 412-13 (1998).

An application for relocation requires consideration of several principles. Relocation by the custodial parent was once looked upon with disfavor by our courts, but is no longer. As the Supreme Court recently observed

Over time, there has been a shift in relocation law across the country. That shift has resulted from several factors: the mobility of the population, advances in technology, the notion that what is good for the custodial parent is good for the children of the divorce, and a renewed recognition that the custodial parent who bears the burden and responsibility for the child is entitled, to the greatest possible extent, to the same freedom to seek a better life for herself or himself and the children as enjoyed by the noncustodial parent.

[Morgan v. Morgan, 205 N.J. 50, 62 (2011) (internal quotation marks and citations omitted.)]

When the physical custodial relationship among parents is such that one parent serves as primary caretaker and the other parent as secondary caretaker, then the custodial parent's request to relocate is governed by the two-part test in Baures, supra, 167 N.J. at 122. Baures requires that removal be permitted 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. Id. at 118. This standard

accords particular respect to the custodial parent's right to seek happiness and fulfillment, guarantees regular communication and contact between the non-custodial parent and the child of a nature and quality to sustain that relationship, and incorporates a variation on a best interests analysis by requiring proof that the child will not suffer from the move.

[MacKinnon v. MacKinnon, 191 N.J. 240, 257 (2007) (internal quotation marks and citations omitted).]

When the Baures analysis applies, the trial judge must evaluate whether the moving party has made a prima facie case by considering twelve factors, including

(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 talent 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.]

The initial burden on the movant "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.

Here, the motion judge thoroughly analyzed the Baures factors and found that plaintiff made a prima facie case that the move was in good faith and would not be inimical to the children. The judge's finding that the documentation demonstrates that the promotion was advantageous to plaintiff's career is supported by the record and entitled to deference. Moreover, many members of plaintiff's family reside there and will be able to provide additional support for the children in making the transition. A new visitation schedule had been structured to give defendant abundant time during holidays and the summer so that she has almost as many overnight visits as in the original schedule.

Despite defendant's discontent with the relocation, she provided abundant speculation but no evidence showing that the move was not in good faith, that it would actually be harmful to the children, or rebutting plaintiff's evidence. Other than assailing the promotion, defendant's case largely relied on her position that the children would suffer because they were farther from their mother and that she would get to see them less. To establish that relocation is not in the children's best interest, more than mere separation or change in parenting time must be shown. Morgan, supra, 205 N.J. at 64 (citing Baures, supra, 167 N.J. at 113, 117). Instead, the noncustodial parent must show that changed parenting time is detrimental to the child or that "for particular reasons, and in light of the unique facts surrounding his or her relationship with the child," the child will be unable to adapt to the relocation. Id. at 66. As the judge found, defendant produced no such evidence. Hence, we agree that an evidentiary hearing was not needed.

We have considered defendant's contentions that she was entitled to a custody evaluation and hearing based upon her claim that plaintiff consistently interfered with her parenting time. We find this argument to be without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). We simply highlight the judge's findings that this claim was based upon a rehash of her prior custody motion that had been decided against her.

In sum, we see no reason to vacate the removal order and compel a plenary hearing as the record fully supports the judge's order permitting plaintiff to relocate with the children.

Affirmed.

1 On plaintiff's motion, we temporarily remanded to the trial court to hear this relocation motion. After we issued our decision on the appeal from the 2012 custody order, the Family Part retained jurisdiction.

2 Plaintiff's counsel represented at oral argument that under the new visitation schedule defendant has the children for only two fewer overnight visits than in the prior schedule.