AMY ORRICO v. JOSEPH ORRICO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0909-04T50909-04T5

AMY ORRICO,

Plaintiff-Respondent,

v.

JOSEPH ORRICO,

Defendant-Appellant.

_______________________________

 

Argued October 19, 2005 - Decided February 24, 2006

Before Judges Wecker, Fuentes and Graves.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Bergen County, Docket No. FM-2-2806-02.

Joseph Orrico, appellant, argued the

cause pro se (Greenbaum, Rowe, Smith &

Davis, attorneys; Mark H. Sobel, of

counsel; Dina M. Vanides, on the brief).

Dale C. Krouse argued the cause for

respondent.

PER CURIAM

Defendant, Joseph Orrico, appeals from an order entered by the Family Part authorizing plaintiff, Amy Orrico, to relocate with the parties' five-year-old son, from the Town of Allendale, in Bergen County to Manahawkin, a section of the Township of Stafford in Ocean County, a distance of more than one hundred miles. The trial court entered this order without conducting an evidentiary hearing, and without affording defendant the opportunity to present oral argument in support of his position.

After reviewing the record, and in light of prevailing legal standards, we reverse the order of the trial court. We further remand the matter to the trial court for an evidentiary hearing, from which a factual record can be developed in order to apply the standards articulated by the Supreme Court in Baures v. Lewis, 167 N.J. 91 (2001). The court shall also entertain and consider oral argument presented by the parties in support of their respective positions.

We gather the following facts from the record made available to us. The parties were divorced on December 16, 2003, in a dual judgment which incorporated a Property Settlement Agreement ("PSA"). Under the terms of the PSA, the parties have joint legal custody of the child, with plaintiff being the primary residential custodian. The PSA also provided a detailed parenting time schedule for defendant, including allocation of holiday visits, and designated Tobie Meisel as the "Parent Coordinator who will assist the parties in dealing with any future parenting-time issues that may arise."

Foreshadowing the conflict to come, the parties specifically struck from the PSA a provision that prohibited plaintiff from relocating "more than twenty (20) miles" from her residence in Allendale. Instead, defendant, as part of his parenting time with his then three-year-old son, was expected to pick up and drop off the child at a rest-stop at exit 98 of the Garden State Parkway, "every other week from Thursday at 4:30 p.m. to Sunday 7:00 p.m." The schedule would change on the "off weeks," to permit defendant to be with the child "from Monday 7:00 p.m. to Wednesday 10:00 a.m." The "pick-up/drop-off" location remained the same.

Since their divorce, the parties' relationship has been characterized by constant acrimony. Less then a month after the entry of the judgment of divorce, plaintiff filed an order to show cause alleging, entirely based on hearsay information provided by defendant's former girlfriend, that defendant (1) verbally mistreated his children; (2) made sexually inappropriate comments to his three-year-old son; and (3) drove his car with his son, while defendant was intoxicated, and without restraining the child in an age-appropriate car seat. Based on these allegations, the court entered an order requiring supervised parenting time, directing defendant to submit to drug and alcohol testing, and ordering a "best interest" investigation.

Defendant filed a certification denying the allegations, and cross-moved for dismissal of the restraints and compensatory parenting time, to make up for the time he had lost with his son. The court eventually ordered the Division of Youth and Family Services ("DYFS") to conduct an investigation concerning the allegations of abuse, and directed both parties to submit to drug and alcohol testing. The substance abuse testing did not show any problems with either party. The so-called "best interest" investigation report prepared by the probation department did not disclose any impediment to renewing defendant's original parenting time schedule.

On March 5, 2004, defendant filed an order to show cause seeking to restrain plaintiff from relocating with the minor child to Manahawkin. The court denied defendant's application based, in large part, on a letter from plaintiff's counsel indicating that plaintiff had no immediate plans to move from Bergen County. The court also denied the parties' cross-motions to enforce litigants rights; appointed Lisa Estrin, a Licensed Clinical Social Worker, to evaluate the parties and their children; and designated the parent coordinator named in the PSA to act as a "therapeutic monitor."

In a report dated April 20, 2004, Ms. Estrin detailed her contacts with the parties and their children, and made a series of recommendations to the court. We highlight here the following five recommendations:

1. Both parents should continue to share joint legal custody. Both parents need to be making decisions regarding the health, education and general welfare of [the child.]

2. The mother should continue to have residential custody.

3. The father should continue to have unsupervised parenting time with [the child.]

4. The mother should move back to this area so [the child] does not have to commute to have a relationship with his father. It would be in [the child's] best interest not to have to drive such a long distance to be with his father.

5. Both parents should be mandated to have a set, weekly appointment that is not canceled with the Therapeutic Monitor, Tobie Meisel, LCSW. The parties should pay a retainer if Ms. Meisel requires. Ms. Willson [Amy Orrico] should be able to participate in these weekly sessions via telephone if Ms. Meisel is comfortable with this form of communication. This should help with the ongoing conflict and to address any changes or concerns that the parents have.

In response to Ms. Estrin's recommendations, but without the benefit of an evidentiary hearing, the court entered an order on August 2, 2004, adopting, in part, the recommendations in the report. Although not explicitly stated in the order, the court implicitly permitted plaintiff to relocate with the child, outside of Bergen County. The order further provided that "[i]f the parties wish to address any other issue, the parties must do so by way of formal application to this Court."

Eight days after the entry of this order, defendant moved to gain sole custody of his young son, or to compel plaintiff to relocate back to Bergen County. Defendant also requested a plenary hearing to address the issues raised by his application. Plaintiff responded and cross-moved on certain unrelated economic issues. On September 15, 2004, the court denied defendant's request for plaintiff to return to Bergen County.

Although the court did not, at that time, provide a statement of reasons for its decision, the court issued a memorandum of decision after defendant filed a notice of appeal. In that memorandum, the court wrote that "[n]o oral argument was held in this matter pursuant to Rule 5:5-4(a). See Fusco v. Fusco, 186 N.J. Super. 321, 328-29 (App. Div. 1982). The court finds no genuine issue of material fact in the instant motions necessitating oral argument or further argument."

Relying on Schulze v. Morris, 361 N.J. Super. 419 (App. Div. 2003), the trial court found, without the benefit of an evidentiary hearing, that:

plaintiff has relocated in good faith to reestablish her life and pursue a career, and that relocation is not inimical to the child's best interests. The Court notes again the report by Lisa Estrin, LCSW. That report, however, is a factor to be considered - not the end of the inquiry. The Court also finds that, despite the avowed inconvenience, the current visitation schedule can be accommodated by the parties as the travel distance does not appear significant or atypical of similar situations. The plaintiff was within her rights to relocate and the Court does not find it necessary to modify the parenting-time provisions of the parties' agreement at this time.

[Emphasis added.]

We start our analysis by addressing the procedural objections raised by defendant. Specifically, defendant argues that the court should have conducted a plenary hearing to develop a factual record from which to assess the impact that plaintiff's relocation would have on defendant's ability to maintain a meaningful parenting relationship with his young son.

Defendant argues that moving his son to a community located over one hundred miles away from him constitutes a substantial change in circumstances, and will adversely affect his relationship with the child. In support of this position, defendant relies on the findings and conclusions reached by Ms. Estrin in her report to the court, as well as the self-evident logistical problems created by the move itself. He maintains that his now close relationship with his son will be irreparably compromised as the inevitable consequence of the physical separation.

Plaintiff argues that under the explicit terms of the PSA: (1) defendant is required to "pick up and drop off" the child at exit 98 on the Garden State Parkway; and (2) the deletion in the PSA of an explicit provision that would have prohibited her from relocating outside of Bergen County, is conclusive evidence that she is entitled to live anywhere within the State.

Because both parties have presented compelling arguments in support of their respective positions, the trial court should have conducted a plenary hearing to develop an evidentiary record from which to make the factual findings required under the circumstances. We made this point clear in Schulze v. Morris:

We fully recognize that the relocation of a child by the residential custodial parent from one location in New Jersey to another may have a significant impact upon the relationship between the child and the non-residential custodial parent that may constitute a substantial change of circumstances warranting modification of the custodial and parenting-time arrangement. However, this appeal has not been so presented.

* * * *

 
When a non-residential custodial parent opposes the intrastate relocation of his or her child by the primary residential custodial parent on the basis that the move will be deleterious to the relationship between the child and the non-residential custodial parent, or will be otherwise inimical to the child's best interests, those factors outlined by Justice Long in Baures [v. Lewis], supra, 167 N.J. [91] at 116-17, 770 A.2d 214 (2001), as well as other relevant matters, should be considered in determining whether modification of the custodial and parenting-time arrangement is warranted. Of course, as noted by the Court, "not all factors [would] be relevant and of equal weight in every case." Id. at 117.

[Schulze, supra, 361 N.J. Super. at 426 (quoting Baures, supra, 167 N.J. at 117.)]

We also disagree with the trial court's decision to deny the parties' request for oral argument. Rule 5:5-4(a), the same court rule relied upon by the trial court here to deny oral argument, makes clear that "the court shall ordinarily grant requests for oral argument on substantive and non-routine discovery motions." (Emphasis added). This was obviously a substantive motion, and "the parties should have been allowed to argue orally as a matter both of due process and the appearance of due process." Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997).

On remand, the court shall conduct a plenary hearing and apply the relevant factors outlined by the Supreme Court in Baures, supra, 167 N.J. at 91. At the conclusion of the hearing, the parties must be afforded the opportunity to present oral argument in support of their respective positions.

 
Reversed and remanded.

The parties had a total of three children during their twenty-one year marriage. The two older children are now twenty-two and nineteen years old.

(continued)

(continued)

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A-0909-04T5

February 24, 2006