JASON NEWBOLD v. EVA M. GRAHAM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0640-05T20640-05T2

JASON NEWBOLD,

Plaintiff-Respondent,

v.

EVA M. GRAHAM n/k/a

LABOY,

Defendant-Appellant.

_____________________________

 
Telephonically argued September 21, 2006 -

Decided February 26, 2007

Before Judges Collester and Baxter.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Sussex

County, FM-19-512-02.

Ruben Laboy, Jr., admitted pro hac vice,

argued the cause for appellant.

Stephen K. Fletcher argued the cause for

respondent (Heymann & Fletcher, attorneys;

Mr. Fletcher and Danielle H. Bohlen, on the

brief).

PER CURIAM

Defendant Eva M. Graham, now known as Eva Laboy, appeals from post-judgment orders modifying a joint custody agreement incorporated in the final judgment of divorce by granting sole legal and primary physical custody of the child of the marriage, Hannah Newbold, to plaintiff Jason Newbold and denying defendant's plan for shared custody. She also appeals from an order vacating child support arrears, denying the allocation of airfare expenses for visitation, as well as an order concerning pickup and drop-off of Hannah.

The parties were married on May 1, 1999. Hannah was born on January 24, 2000, and was the only child of the marriage. The parties permanently separated in January 2002. After plaintiff filed the complaint for divorce, defendant made known her desire to leave New Jersey with Hannah and relocate in Florida. Plaintiff refused to consent and obtained an order restraining defendant from leaving the jurisdiction with their child.

Because custody was a major issue, Judge Hansbury appointed Jane Ellen Doran, Esq. as guardian ad litem for Hannah. The ensuing litigation between the parties was characterized by the guardian ad litem as "an extremely high conflict relationship in which there was little or no communication," and where cross-allegations were made by the parties charging each other with abuse and neglect of Hannah. Ms. Doran assisted the parties in agreeing to a parenting plan for sharing legal and residential custody in New Jersey. The signed agreement stated:

[I]n order to facilitate the terms and conditions of the joint residential and legal custodial arrangement envisioned hereunder, each of the parties shall continue to reside within a 35-mile radius of one another. If either party should relocate outside said residence, said relocation shall be considered a substantial change in circumstances warranting a review of the terms and conditions of the within Parenting Plan.

The final judgment dissolving the marriage incorporated the agreement and was signed by Judge Hansbury on August 2, 2004. About one week later defendant's attorney advised plaintiff that defendant planned to relocate to Florida and presented a proposed consent order modifying parenting time and substantially changing the terms of the agreement. The proposed modifications included granting defendant extended parenting time with Hannah in Florida with her primary residence remaining in New Jersey. When plaintiff would not consent, defendant filed a motion to modify the agreement as well as other relief, including modification of child support and allocating transportation expenses. Plaintiff responded by an order to show cause, which resulted in temporary restraints against defendant removing Hannah from New Jersey as well as suspending defendant's visitation pending resolution of the issue by the court.

Each party was directed to submit proposed revisions of parenting schedules. Ms. Doran reported to the court that defendant's proposal would impede Hannah from securing necessary psychological care and she recommended that her primary custody be transferred to plaintiff and defendant's parenting be restricted to New Jersey. In reaching his decision, Judge Hansbury commented:

As I recall - and I recall it well - Dr. D'Urso's report made it very clear that Hannah was best served by the parents being within proximity of each other. That whole concept is now out the window because defendant within days elected to relocate to Florida. I do find that she did this in bad faith. That's easy.

[Her] unilateral decision within virtual hours of a fully settled parenting plan has created a very difficult situation for everybody in this courtroom, not the least of which is Hannah. And . . . there are consequences to that decision. Temporarily we've got to do what we've got to do. And temporarily I have jurisdiction over Hannah. The father lives here in proximity with Hannah and [defendant] is a thousand miles away to her own doing. And I regret that she's not going to see Hannah as often as she chose, but that's a hazard she made by moving. She could have filed an application for relocation, stayed up here and wait to see how all that sifted out. Many people do that. She elected not to.

On September 24, 2004, an interim order was entered awarding plaintiff temporary legal and residential custody of Hannah with defendant's parenting time restricted to one weekend per month in New Jersey. Defendant's motions to allocate parenting time expenses and modify child support were denied.

Subsequently, Judge Hansbury granted defendant's request for a plenary hearing, which was held on April 20, 2005, and included testimony of the parties. Defendant sought parenting time in Florida for the summer, all school breaks, and all three holiday weekends. Plaintiff submitted his parenting plan in response to restricting visitation to New Jersey. Judge Hansbury rendered an oral decision in which he granted plaintiff sole legal and physical custody.

Defendant was granted parenting time with Hannah in Florida as follows: half of every Christmas holiday; four weeks during the summer months with no more than two weeks consecutive; Thanksgiving, teachers' convention weekends, and spring break to be alternated; and one weekend per month excluding the months when other visitation arrangements were to take place. Pickup and drop-off was to take place at plaintiff's home, except pickup and drop-off for plane travel was fixed at Newark Liberty International Airport. Defendant's motion to allocate transportation costs was denied. By separate order Judge Hansbury imputed income of $15,000 to plaintiff and directed she pay child support of $69 per week. He also vacated plaintiff's child support arrears. This appeal followed.

Judge Hansbury made findings of fact amply supported by the record. We note that he is an experienced Family Part judge with an intimate familiarity with the case. Appellate courts are obliged to defer to factfinding by Family Part judges because of their expertise and the special jurisdiction of the Family Court. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998); Wadlow v. Wadlow, 200 N.J. Super. 372, 382 (App. Div. 1985). We find no misconception of the law or factual findings contrary to the evidence to constitute an abuse of discretionary authority by the judge. Id. at 382. Rolnick v. Rolnick, 262 N.J. Super. 343, 356 (App. Div. 1993).

Findings and legal conclusions of a trial judge are not to be disturbed on appeal unless they are "so manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). We find no substance to defendant's arguments that would cause us to upset the determination by Judge Hansbury. The remaining arguments made by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

 
Affirmed.

(continued)

(continued)

6

A-0640-05T2

February 26, 2007