MICHAEL P. HRYCAK v. RITA HRYCAK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MICHAEL P. HRYCAK,

Plaintiff-Appellant,

v.

RITA HRYCAK,

Defendant-Respondent.

________________________________

October 1, 2014

Argued September 22, 2014 - Decided

Before Judges Sabatino and Guadagno.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-0974-07.

Michael P. Hrycak, appellant, argued the cause pro se.

Rita Hrycak, respondent, has not filed a brief.

PER CURIAM

Plaintiff Michael P. Hrycak is the father of two sons who now live with their mother, defendant Rita Hrycak, in California. The mother and the sons relocated to that state from New Jersey with the court's approval, following the custodial phase of the parties' divorce trial in 2008. Plaintiff seeks to overturn orders from the Family Part allowing the sons to remain with their mother in California, and the terms of the parenting plan that the court adopted. We affirm.

The extensive background of this matter is detailed in our unpublished 2009 opinion adjudicating plaintiff's earlier appeals from the divorce proceedings, and it need not be repeated at length here. See Hrycak v. Hrycak, Nos. A-1321-08 and A-3645-08 (App. Div. Oct. 29, 2009). A brief summary will suffice.

The parties were married in August 1994. The father is an attorney licensed to practice in New Jersey and a few other jurisdictions. Through the time of the trial, the father was an officer in the National Guard, and he had been deployed on several occasions. The father is of Ukrainian descent, and it is important to him that the two sons are raised in and exposed to Ukrainian religion and culture. The mother, who is of the Hindu faith, works in the information technology field.

The two sons that are at the center of this persisting conflict are presently ages sixteen and eleven. The older son at times has had substantial friction with his father. The younger son generally has had a less contentious relationship with him.

The couple, who had been living together in New Jersey, separated in the latter part of 2006. Meanwhile, the mother's own parents moved to California, and she sought to relocate there.

At the divorce trial1 in the summer of 2008, a court-appointed psychologist, Dr. Mathias Hagovsky, recommended that the mother be designated the parent of primary residence and that she be allowed to relocate with the sons to California. The father objected to the relocation, although at that time he did not present a competing expert witness. The trial judge conducted in camera interviews with the two sons.

Generally adhering to Dr. Hagovsky's recommendations, the trial judge issued an opinion in October 2008 awarding the mother primary custody and approving the sons' relocating with her to California. In doing so, the trial judge applied the controlling two-part test enunciated by the New Jersey Supreme Court in Baures v. Lewis, 167 N.J. 91, 118 (2001), i.e., whether (1) the primary custodial parent, here being the mother, had good faith reasons for the move, and (2) relocation would not be inimical to the children's best interests.

The sons have lived with their mother in California ever since then, while intermittently having parenting time with plaintiff in New Jersey. For personal and professional reasons, plaintiff has remained living in New Jersey, and he has no desire to move to California.

On direct appeal, we upheld the designation of the mother as the primary custodial parent. Hrycak, supra, slip op. at 31. We also upheld the trial court's ruling on the first prong of Baures, finding that the mother had good faith reasons to move with the sons near her relatives in California. Id. at 37. However, as to the second prong of Baures focusing on the sons' best interests, we remanded the case to the Family Part "pending the development of a detailed parenting plan and a re-examination by the trial court of whether such a parenting plan feasibly allows the children to maintain an adequate relationship with [the father]." Id. at 2.

Because the original trial judge had retired in the interim, the case was heard on remand by Judge Thomas J. Walsh. Judge Walsh also addressed various outstanding economic issues between the parties that are not the subject of the father's present appeal.

Judge Walsh heard updated testimony from Dr. Hagovsky, who again supported the continued residency of the relocated children with their mother in California. The father obtained a competing psychological expert, Dr. Donald J. Franklin, who recommended that the children return to New Jersey, in the primary custody of their mother, during the school year, with regular visitations from the father. Dr. Franklin perceived that plaintiff and his older son had gotten along better when they had longer periods of time together, and that returning to New Jersey would ultimately be good for their relationship. However, both experts recognized that the older son has been doing well in school and otherwise in California.

Upon considering these proofs, Judge Walsh issued a detailed written opinion on January 20, 2012, concluding that the relocation of the sons continued to satisfy the Baures test. The judge carefully analyzed each of the various relevant considerations set forth by the Court in Baures, finding that, on the whole, they favored the sons' continued residency in California. The judge found Dr. Hagovsky's opinions to be credible and more persuasive than those of Dr. Franklin.

Judge Walsh did acknowledge that the mother is "hardly without blame" in aggravating the problems between the older son and plaintiff. In fact, the judge rebuked her for "lurking nearby" when the older son visits his father and providing him with a "retreat point" and also apparently allowing the son to overhear her criticisms of plaintiff's current relationship with another woman. The judge emphatically stated that "this behavior on [the mother's] part must stop." Nevertheless, the judge ultimately concluded that the father could not overcome the mother's prima facie showing that relocating the sons with the mother to California is not inimical to their best interests.

Judge Walsh adopted a parenting plan that differed in some respects from the competing proposals of Dr. Hagovsky and Dr. Franklin. For instance, the judge rejected Dr. Hagovsky's recommendation to grant plaintiff four to eight weeks of visitation during the sons' summer vacation, and instead granted plaintiff a full uninterrupted eight weeks. Conversely, the judge disagreed with Dr. Franklin's opinion disfavoring shorter weekend visits with the father and instead found that such visits would be helpful to the father's relationship with the sons.

Plaintiff appealed Judge Walsh's remand decision. While the appeal was pending, plaintiff moved for a limited remand because he was concerned that the judge had not considered certain of his proofs. We granted that limited remand, requiring plaintiff to make a proffer to the trial court of the evidence that he believed had been improperly excluded or overlooked. After that proffer was made, Judge Walsh concluded that there was no need for additional testimony and reiterated his prior ruling on the merits. When the appeal was resumed, plaintiff supplemented the record with additional materials relating to, among other things, his unsuccessful effort earlier this year to have parenting time with his sons when his older son's public school band was traveling to New York.

In his present appeal, plaintiff raises two issues. First, he argues that the Baures test for relocation, and the related statute, N.J.S.A. 9:2-2, is unconstitutional. More specifically, he contends that the test unduly favors a non-custodial parent's constitutional right to travel, see, e.g., United States v. Guest, 383 U.S. 745, 758, 86 S. Ct. 1170, 1178, 16 L. Ed. 2d 239, 249 (1966), over a non-custodial parent's right to have a meaningful relationship with his or her children, see, e.g., Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 2060, 147 L. Ed. 2d 49, 57 (2000). Plaintiff advocates that the current standard of proof for the custodial parent specified in Baures the conventional "preponderance of credible evidence" standard, see Baures, supra, 167 N.J. at 122 be replaced with a more stringent standard requiring the custodial parent to prove the relocation criteria by "clear and convincing proof."

We decline plaintiff's request to repudiate the Supreme Court's well-established relocation criteria mandated by Baures, or alter the prescribed standard of proof, for several reasons. First, as plaintiff himself recognizes, as an intermediate appellate court, it is not our place to divert from the Supreme Court's precedents. See State v. Hill, 139 N.J. 548, 551 (App. Div. 1976). Second, the Court in Baures did acknowledge the "fundamental tension" that arises in relocation cases, which pits "the interests of the custodial parent in self-governance" against the "interests of the noncustodial parent in maintaining his or her relationship with the child[ren]." Baures, supra, 167 N.J. at 110. The Court has elected to strike that balance through the Baures formula, and plaintiff is essentially asking us to consider a policy issue that the Court has already resolved. Third, our research shows that at least fifteen other states adopt a similar approach to relocation as we have in Baures, and none of those other states' tests has been struck down under the federal constitution.2

Plaintiff's other argument on appeal is that the trial court's post-remand decision is arbitrary and not adequately supported by the record. In essence, plaintiff maintains that Judge Walsh erred in his evaluation of the proofs at the remand hearings, and that the judge gave too much weight to the opinions of Dr. Hagovsky and too little weight to those of Dr. Franklin.

We reject these arguments. Our scope of review in this regard is limited. Given the Family Part's special expertise, appellate courts must accord particular deference to fact-finding in family cases and to the conclusions that logically flow from those findings. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998); see also Pascale v. Pascale, 113 N.J. 20, 33 (1988). Applying that deference, we are satisfied that Judge Walsh's rulings are sound and well supported by the evidence.

The judge had the option of finding one expert more credible than the other, and he did just that. See Brown v. Brown, 348 N.J. Super. 466, 478 (App. Div.) (noting that a fact finder is free to accept or reject the testimony of either side's expert, in full or in part), certif. denied, 174 N.J. 193 (2002). Moreover, as we have already noted, Judge Walsh departed from certain aspects of the parenting plan proposed by Dr. Hagovsky (and desired by the mother) so as to give plaintiff more continuous time with the sons during the summer. Those adjustments illustrate the judge's sensitivity to this difficult and contentious situation and the competing interests involved.

We further observe that the probative value of Dr. Franklin's opinions essentially recommending that parties regularly and frequently split parenting time with the sons in New Jersey is substantially weakened by the legal and practical reality that the mother does not want to move back to this state and our courts lack the power to order her to do so. Significantly, plaintiff has not offered to be designated as the parent of primary residence. Cf. Barblock v. Barblock, 383 N.J. Super. 114, 125 (App. Div.), certif. denied, 187 N.J. 81 (2006) (similarly upholding a Family Part judge's relocation order where the objecting parent did not offer to assume primary custody himself).

At oral argument on this appeal, plaintiff asserted that the current parenting plan is not working well, and that his former spouse has been thwarting his ability to foster a positive and regular relationship with the sons. Those concerns about the alleged shortcomings of the status quo, including any violations of Judge Walsh's pointed admonitions about the mother's problematic behavior, are best presented and considered in the trial court. Based on the record before us, the decisions rendered thus far by Judge Walsh are well within his zone of discretion, supported by the evidence, and consistent with the governing law. We therefore affirm those rulings, substantially for the cogent reasons articulated by Judge Walsh in his series of thoughtful written decisions.

Affirmed.

1 The trial also addressed issues of alimony, child support, and equitable distribution, but those matters are not at issue in the present appeal.

2 See David V. Chipman & Mindy M. Rush, The Necessity of "Right to Travel" Analysis in Custodial Parent Relocation Cases, 10 Wyo. L. Rev. 267, 268 (2010) (listing New Jersey as one of at least sixteen states that place the burden of proof on the custodial parent to prove that relocation is in the best interest of the child). See also In Re Marriage of Ciesluk, 113 P.3d 135 (Colo. 2005) (upholding Colorado's version of a relocation standard similar to Baures).