PATRICIA CLEMAS v. JOSEPH CLEMAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-05499-13T3

PATRICIA CLEMAS,

Plaintiff-Respondent,

v.

JOSEPH CLEMAS,

Defendant-Appellant.

________________________________

January 28, 2015

Argued January 13, 2015 Decided

Before Judges Fasciale and Whipple.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-370-12.

Gary Alan Blaustein argued the cause for appellant.

Michael J. DeTommaso argued the cause for respondent (The DeTommaso Law Group, L.L.C., attorneys; Mr. DeTommaso, on the brief).

PER CURIAM

In this post-judgment matrimonial action, defendant appeals from an order entered by the Family Part on June 12, 2014, denying his cross-motion seeking to restrain plaintiff from relocating the parties' children from Bridgewater to Egg Harbor. We affirm.

The parties were married in 1998 and two children were born of the marriage in 2003. A dual judgment of divorce from Bed & Board incorporating the parties' marital settlement agreement ("Agreement") was entered on January 30, 2012. The Agreement provided for the parties to share joint legal custody of the children, with plaintiff designated as the parent of primary residence ("PPR"). The parties agreed to designate Bridgewater as their desired school district "so long as one party is domiciled in the district" but also agreed when "either party applies to the Court to convert the Divorce from Bed & Board into a Final Judgment of Divorce, this provision shall be null and void."

On April 21, 2014, plaintiff filed a motion to convert the dual judgment of divorce from Bed & Board into a final judgment of divorce. Defendant learned from the children that plaintiff planned to relocate and cross-moved, seeking, among other things, an order restraining plaintiff from relocating with the children from Bridgewater to Egg Harbor. After hearing oral argument, the motion judge entered an order converting the parties' divorce from Bed & Board into a final judgment of divorce and denied defendant's request for the order under review.1

On appeal, defendant argues that the Family Part judge erred by allowing plaintiff to relocate with the children and ignoring a provision of the Agreement which indicates that plaintiff's designation as PPR "is for child support purposes and does not give either parent an enhanced or diminished parenting authority to either party."

"A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Appellate review is therefore plenary. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J.78 (2011).

In custody cases, the court's primary consideration is the best interests of the child. Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). Normally in custody disputes, the court must consider and apply the factors listed in N.J.S.A. 9:2-4c to determine the best interests of the child. However, "when matrimonial litigants reach a settlement on issues" pertaining to child custody, support, and parenting-time, "the court does not inquire into the merits of the agreement." Fawzy v. Fawzy, 199 N.J. 456, 476 (2009).

The motion judge, having reviewed the Agreement, found, as a matter of law, that plaintiff was the PPR, and as such, she was permitted to relocate within the state. The motion judge rejected defendant's argument that the language of the Agreement prevented plaintiff from having "enhanced rights" and concluded that language in the Agreement referred to the parties making joint legal custody decisions. The judge determined that the provision did not alter plaintiff's right to relocate.

The judge further determined that it was defendant's burden to demonstrate changed circumstances infringing upon the best interests of the children, defendant had not met his burden, and defendant was not entitled to a hearing on the matter because he had identified no reason why the new school district could not accommodate his children's needs, or demonstrate that he would not be able to maintain the same parenting schedule or "a reasonable alternative."

Moreover, the judge ruled plaintiff was the de facto PPR due to the fact that she was the primary caretaker, had significantly more parenting-time, and had primary responsibility for the children's academics. In reviewing the Agreement, the court determined that the parties had impliedly considered the possibility of plaintiff's relocation when they agreed that once either party moved to finalize the divorce, the children were no longer required to attend school in Bridgewater. The parties had agreed to a geographic restraint only on a temporary basis. They had not agreed to any other restraints.

The motion judge correctly determined that the parties' Agreement does not prohibit plaintiff from relocating with the children. Nor is plaintiff required to make application to the court in order to do so. The Agreement designated plaintiff as the PPR for child support purposes. Defendant says that the Agreement limits that designation because it "does not give either parent an enhanced or diminished parenting authority." He is correct that the designation does not confer greater parental authority, but we disagree that such language limits plaintiff's right to relocate within New Jersey. The Agreement contains a clearly temporary geographic restraint which was designed to be lifted upon the finalization of the divorce and inferentially recognizes plaintiff's right to move.

In Schulze v. Morris, 361 N.J. Super. 419, 426 (App. Div. 2003), we concluded that while relocation within the state by a joint residential custodial parent does not constitute a removal action under N.J.S.A. 9:2-2, it "may constitute a substantial change in circumstances warranting modification of the custodial and parenting-time arrangement." In order to obtain a plenary hearing, the parent opposing relocation must make a prima facie showing 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." Pfeiffer v. Ilson, 318 N.J. Super. 13, 14 (App. Div. 1999).

Defendant did not demonstrate that relocation constituted a substantial change in circumstances. The motion judge considered the interests of the children in light of defendant's arguments, including the potential inconvenience of mid-week overnight visits due to the distance involved, but found that defendant had not demonstrated that "no reasonable alternative" would afford him appropriate parenting-time.

Defendant did not raise sufficient questions of fact to require the motion judge to conduct a plenary hearing on the issue of relocation. He is not precluded from seeking modification of parenting-time to address issues of distance and convenience under the joint custody Agreement.

Affirmed.

1 Other issues were addressed in the order but are not relevant on appeal, as defendant only contests the denial of his request to restrain plaintiff's relocation.