RENEE M. VETRI v. SALVATORE J. VETRI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0480-04T50480-04T5

RENEE M. VETRI

Plaintiff-Respondent,

V.

SALVATORE J. VETRI

Defendant-Appellant.

___________________________________

 

Submitted November 7, 2005 - Decided

Before Judges Lintner and Gilroy.

On Appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, FM-18-561-02.

Salvatore J. Vetri, appellant, pro se (Mark S. Guralnick, on the brief).

No brief was filed on behalf of respondent.

PER CURIAM

Defendant, Salvatore Vetri, appeals from an Order entered in the Family Part on August 17, 2004, permitting plaintiff, Renee Vetri, to relocate to Manalapan Township. The order also continued the parties' previously agreed upon joint legal custody arrangement, with Renee as the parent of primary residence, and established and modified Salvatore's visitation by the addition of one weekend a month. We affirm.

The parties were married on July 30, 1989. Two children were born of the marriage, Louis, born April 2, 1993, and Salvatore, Jr., born July 6, 1994. In 1998, the parties agreed to move to Franklin Township even though Renee preferred to live at a location halfway between her family in Monmouth County and Salvatore's parents in Montgomery Township.

In 2001, Renee expressed her desire to move closer to her three siblings and her five nieces and nephews in Monmouth County. Those family members frequently visited the marital residence prior to the entry of a consent order on November 17, 2002, which prevented such visits after the marriage became strained. Renee's mother is deceased and her father lives in Florida. The parties divorced on April 9, 2003. The property settlement agreement, dated April 9, 2003, provided that the parties "shall share joint legal custody of their children . . . with [Renee] having primary residential custody." It also contained the following relevant provision:

The parties acknowledge that it is the Wife's intention to move closer to her family in Monmouth and Middlesex County. The parties further acknowledge that it is the Husband's intention to continue the children[']s education in the Montgomery Township school system. The Wife's relocation outside of the Montgomery Township school system, shall be considered a change of circumstances that will entitle the Husband to make the appropriate application to the Court for the purpose of revisiting whether the current custody and parenting arrangement shall continue to be in the best interests of the children.

Renee was employed as a full time schoolteacher until 1993 when she ceased teaching to be the primary caregiver for the parties' children. She is now a substitute teacher. Renee has served as the children's primary caregiver since the parties divorced. Salvatore is self-employed as a CPA in Somerset, which is approximately a fifteen-minute drive from Montgomery. He has visitation with the children every Tuesday and Thursday from 6:00 p.m. to 8:00 p.m., every other weekend from Friday at 6:00 p.m. until Sunday at 8:00 p.m., alternating holidays, and two weeks each summer.

Salvatore has a close and significant relationship with both his sons. He is involved with both children's baseball teams, engages in woodworking with his son Louis, and works with computers with Sal. Sal suffers from slow development of his communication skills. Consequently, he is enrolled in a special education program in the Montgomery school system where he is progressing well.

Shortly after the divorce, Renee advised Salvatore that she was intending to move to Manalapan Township. On June 13, 2003, Salvatore obtained a restraining order pending a plenary hearing by which he sought to prevent Renee from moving to Monmouth County. In October 2003, the marital home was sold. Renee remained in Montgomery pursuant to the restraining order and Salvatore resides with his parents, who live approximately five minutes away.

In a hearing that spanned four days between April 21 and August 9, 2004, each side presented testimony concerning their positions. Renee desired to move closer to her family and Salvatore believed that Renee was moving to alienate him from his children and to spite him. They both presented experts on the issue of custodial arrangement, the quality of education in Manalapan versus Montgomery, and how the move would affect the children. Salvatore sought to restrain Renee from moving to Monmouth County. At trial, Salvatore presented expert testimony from a child psychiatrist, Dr. Martin Weinapple. Weinapple submitted a report, finding that the children should remain in the Montgomery school system and that a move to Manalapan would be detrimental to the children. He also found that Renee sought to move to be closer to her family and to distance herself from Salvatore.

Renee presented expert testimony from a psychologist, Dr. William Campagna. Campagna believed that the move would not significantly or adversely affect the children's relationship with their father. Campagna found that Renee's desire to move was attributed to her feeling of isolation and a desire to be near her family, not to limit Salvatore's parenting time. Campagna concluded that the move would not adversely impact the children but recommended that Salvatore be given a third weekend each month with the children. Neither expert opined that the current shared custodial arrangement should be changed. Judge Rubin agreed with Weinapple's findings regarding the importance of Salvatore's role in the children's lives. However, finding Campagna's and Renee's testimony more credible than that given by Salvatore and Weinapple, Judge Rubin accepted Renee's reasons for the move and found that it would not be deleterious to the children.

Reports from two educational experts, Dr. Sally Anne Bickford, retained by Salvatore, and Dr. Stacy El Costa, retained by Renee, were placed into evidence. Bickford believed that the best interest of the children required that Renee be compelled to remain within the Montgomery Township School District until Sal graduates from high school, while Costa reported that the schools were essentially comparable. After reviewing these conflicting expert reports, Judge Rubin concluded that Bickford was influenced by what she perceived was the social economic differences in the communities and her opinions respecting the psychological impact on the children, an area in which she had no expertise and which was covered by Weinapple and Campagna. He found Costa's report more credible and concluded that there was no reason to believe that the Manalapan school would not meet the children's needs.

Salvatore essentially contends on appeal that the Baures standard should be expanded to include intrastate moves. He also contends that Judge Rubin erred in failing to (1) measure fully the significant impact Renee's move will have on his relationship with his sons, including their education growth and social development and (2) consider that the proximity of Manalapan to Montgomery Township was such so as to require Renee to remain in Montgomery Township and travel to Manalapan to visit her relatives, rather than to require Salvatore to travel between the two locations.

In deciding whether Renee should be permitted to move, Judge Rubin analyzed the testimony and applied the relevant factors enumerated in Baures, which are to be considered when a residential custodial parent seeks to move outside the State.

In Schulze v. Morris, 361 N.J. Super. 419, 426 (App. Div. 2003), we concluded that the relocation within the State by a joint residential custodial parent does not constitute a removal action pursuant to N.J.S.A. 9:2-2, requiring approval for the proposed relocation. Instead, relocation to another in-state location "may constitute a substantial change in circumstances warranting modification of the custodial and parenting-time arrangement." Schulze, supra, 361 N.J. Super. at 426. Thus, approval is not needed to move to another part of the state. However, where such a move has a significant impact upon the relationship between the child and the non-residential custodial parent such that it is harmful or inimical to the child's best interest, the Baures factors should be considered in determining whether modification of the custodial and parenting-time arrangement is warranted.

Judge Rubin recognized that the property settlement agreement reflected that at the time of the divorce the parties anticipated that Renee's desire to move would be problematic and an issue that might come up in the future. Here, defendant does not seek custody nor challenge his increased visitation. Instead, he maintains that the judge should not have permitted Renee to move to Manalapan under the circumstances. We disagree.

Judge Rubin went farther than he had to by considering the Baures factors in examining Renee's desire to move and determining that the move would not be inimical to the children. Although he went beyond what was legally called for, his analysis and application of those factors to the move, albeit intrastate, in our view, are unassailable. More importantly, Judge Rubin also considered the applicable Baures factors, as required by Schulze, in determining whether a modification of the custodial and parenting-time arrangement was warranted and correctly concluded that Salvatore should have an additional weekend per month with his children. We need not repeat his findings. Judge Rubin's conclusions, which are reflected in his comprehensive and thoughtful decision of August 16, 2004, are supported by substantial and credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Salvatore's claims to the contrary lack merit. R. 2:11-3(e)(1)(A) and (E). We adopt those findings and affirm substantially for the reasons expressed by Judge Rubin.

 
Affirm.

The appellant does not include the original motion papers in the appendix.

Dr. Costa's report is not provided in the appendix.

Baures v. Lewis, 167 N.J. 91, 116-117 (2001).

(continued)

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A-0480-04T5

November 28, 2005