VINCENZO TERSIGNI v. MICHELE LAPINE-TERSIGNI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

VINCENZO TERSIGNI,

Plaintiff-Appellant,

v.

MICHELE LAPINE-TERSIGNI,

Defendant-Respondent.

_____________________________________________

November 25, 2015

Submitted October 26, 2015 Decided

Before Judges Messano and Carroll.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1330-10.

Vincenzo Tersigni, appellant pro se.

Michele Lapine-Tersigni, respondent pro se.

PER CURIAM

Plaintiff Vincenzo Tersigni and defendant Michele Lapine-Tersigni were married in 2003, and their son was born in 2007. On November 16, 2010, the Family Part entered a judgment of divorce from bed and board, see N.J.S.A. 2A:34-3, which incorporated a property settlement agreement (PSA) the parties had consented to on the record. In salient part, the PSA provided that the parties shared joint custody of their son, with defendant designated as the parent of primary residence. The parties agreed to plaintiff having parenting time on alternating weekends, with one overnight per week, for a total of eight overnight visits per month. Defendant further agreed that she would not reside more than thirty miles from North Caldwell until the parties' son was emancipated. A dual final judgment of divorce was entered on March 16, 2011, which incorporated the terms of the PSA.

In June 2014, claiming plaintiff was more than $20,000 in arrears in child support, defendant filed a motion to enforce litigant's rights and to re-locate with the parties' son to Yardley, Pennsylvania, more than thirty miles from North Caldwell. Plaintiff certified that she wished to move in with her fiancé, who owned a business in Philadelphia, and they chose to live in Yardley because of its excellent school system, amenities and proximity to the fiancé's extended family. Defendant further certified that she had been "offered several excellent [employment] opportunities" in the area that would permit her to "work less/more flexible hours," thereby increasing her time with the parties' son. Defendant proposed a change in the parenting time schedule that would eliminate weekday overnights but extend plaintiff's summer parenting time by one week.

In opposition, plaintiff certified that his "long-term partner" gave birth to a baby girl in March 2014, and the parties' son was "deeply in love with his [new] sister." Plaintiff alleged that defendant recently had her driver's license restored after a conviction for driving while intoxicated (DWI), and he was concerned for his son's safety. Plaintiff noted that school records revealed the parties' son was frequently late for school. Plaintiff also referenced the PSA's provision restricting relocation and certified that, for a variety of reasons, relocation was not in the child's best interest.

On July 25, 2014, both parties appeared pro se before the Family Part judge and provided extensive testimony. Three days later, the judge entered an order granting defendant's motion to relocate. As provided by the order, the judge found that defendant's relocation was "in good faith, [] not inimical to the child's best interests, [and] a reasonable visitation schedule with plaintiff can be maintained."1 The order also modified plaintiff's parenting time with the parties' son.

Plaintiff moved for reconsideration, and before the return date of the motion, he sought injunctive relief staying the July 25, 2014 order. When the Family Part denied that request, plaintiff sought emergent relief before this court and eventually the Supreme Court. In the interim, defendant and the parties' son had relocated to New Hope, Pennsylvania, not Yardley, Pennsylvania, as earlier represented. On September 11, 2014, following a remand from the Supreme Court, we issued an order that denied plaintiff's request for a stay. However, we remanded the matter to the Family Part "based upon [defendant's] move to a different town than the one considered by the Family Part judge." We further ordered the judge to "hold a hearing, [and] apply the applicable Baures v. Lewis, 167 N.J. 91, 116-17 (2001), factors to the new town of residence."

That hearing occurred on October 3 and November 19, 2014. Defendant and her fiancé testified, as did plaintiff. On November 24, the judge placed her decision and supporting reasons on the record. The conforming order granted plaintiff's motion to relocate to New Hope and modified plaintiff's parenting time schedule.

Plaintiff appeals from the July 28 and November 24, 2014 orders.2 He argues that the judge's decision failed to give appropriate weight to the evidence regarding defendant's DWI conviction or her testimony that she "self-medicate[d] as a licensed nurse practitioner," and the judge made inadequate findings regarding the Baures factors. Plaintiff also argues that the judge essentially "undid" the PSA, thereby invalidating plaintiff's contract rights, and further that his constitutional rights to due process and equal protection were violated.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

We begin by stating the well-known principles that inform our review. We owe substantial deference to the Family Part's findings of fact because of that court's special expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Thus, "[a] reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record." MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007) (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)). And, while we owe no special deference to the judge's legal conclusions, Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995), we

'should not disturb the factual findings and legal conclusions of the trial judge unless . . . convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice' or when we determine the court has palpably abused its discretion.'

[Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010) (quoting Cesare, supra, 154 N.J. at 412).]

In this case, defendant could not relocate from New Jersey with the parties' son absent plaintiff's consent or an order from the court finding sufficient cause to permit such a move. N.J.S.A.9:2-2. "If the situation is such that one parent serves as the primary caretaker, then that custodial parent's request to relocate the children is governed by the two-part test of Baures." Barblock v. Barblock, 383 N.J. Super.114, 121 (App. Div.), certif. denied, 187 N.J.81 (2006). "Bauresrequires the removal to be granted where the proofs demonstrate that (1) there is a good faith reason for the move and (2) that the move will not be inimical to children's best interests." Ibid.(citing Baures, supra, 167 N.J.at 118). "If, conversely, the situation is a rare de facto 'shared parenting' arrangement, one in which each parent essentially performs an equal caretaking role, then the removal application must be analyzed under the stricter change-of-custody test of O'Connor v. O'Connor, 349 N.J. Super. 381, 399-400 (App. Div. 2002)." Id.at 122.

Although in the Family Part plaintiff did not specifically contend that he and defendant had a de facto shared parenting arrangement, he implicitly makes that argument in his brief. He contends that he routinely spent more time with his son than permitted by the terms of the PSA. However, the Court has rejected such a facile analysis. See Morgan v. Morgan, 205 N.J. 50, 67 (2011) (rejecting a de facto shared custody argument where the father based his claim on the "fact that he 'saw' the girls more than the PSA provided and was involved in their school and sports life"). The Family Part judge correctly applied the Baures analysis to plaintiff's motion.

In such situations, "[t]he burden of production rests initially on the movant to make out a prima facie showing on the good faith and harm to the child prongs, which typically requires a 'visitation proposal.'" Morgan, supra, 205 N.J.at 65-66 (quoting Baures, supra, 167 N.J.at 118). The judge must consider the request in light of the twelve factors enumerated in Baures. MacKinnon, supra, 191 N.J.at 250 (citing Baures, supra, 167 N.J.at 116-17).3 The burden "'is not a particularly onerous one,'" and will be met

by a custodial parent who shows that he is seeking to move closer to a large extended family that can help him raise his child; that the child will have educational, health and leisure opportunities at least equal to that which is available here, and that he has thought out a visitation schedule that will allow the child to maintain his or her relationship with the noncustodial parent.

[Morgan, supra, 205 N.J. at 66 (quoting Baures, supra, 167 N.J. at 118).]

"Should the moving party meet the burden of production, the noncustodial parent must then 'produce evidence opposing the move as either not in good faith or inimical to the child's interest.'" Ibid. (quoting Baures, supra, 167 N.J. at 119).

Here, plaintiff argues that the evidence failed to support a finding that defendant's request to relocate was made in good faith. He contends that defendant lacked credibility about the circumstances of the relocation and her ability to responsibly parent the parties' son. However, the judge specifically found defendant's explanation for the relocation, supported by her fiancé's testimony, was "credible and genuine."

Contrary to plaintiff's argument, the judge considered the Baures factors in detail, both in her initial decision and in the decision that followed remand. We will not recite those findings at length, but note that they were adequately supported by the evidence adduced at the hearings. R. 2:11-3(e)(1)(a). We particularly defer to those findings in light of the judge's ability to judge the credibility of the witnesses who testified before her. See MacKinnon, supra, 191 N.J. at 254 (quoting Cesare, supra, 154 N.J. at 412) (noting that "deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility'").

Plaintiff also argues that permitting defendant to relocate interfered with his contractual rights, because the orders contravened the terms of the PSA, which required defendant to remain within thirty miles of North Caldwell. However, a number of our decisions involved relocation requests that sought modifications of an existing PSA. See e.g., Morgan, supra, 205 N.J. at 55; Barblock, supra, 383 N.J. Super. at 118-19; O'Connor, supra, 349 N.J. Super. at 386. The PSA alone cannot serve to deny the custodial parent the opportunity to relocate because the Baures analysis is premised, in part, upon

the notion that what is good for the custodial parent is good for the children of the divorce, and a renewed recognition that '[t]he custodial parent who bears the burden and responsibility for the child is entitled, to the greatest possible extent, to the same freedom to seek a better life for herself or himself and the children as enjoyed by the noncustodial parent[.]'

[Morgan, supra, 205 N.J. at 62 (citations omitted) (quoting Cooper v. Cooper, 99 N.J. 42, 55 (1984)).]

Finally, plaintiff's claims that he was denied his constitutional rights to due process and equal protection under law lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(e).

Affirmed.

1 The order also stated the relief was granted "for the other reasons stated on the record" in the judge's "oral decision" placed on the record on July 28, 2014. Plaintiff did not provide us with any transcript of proceedings for that day. However, in connection with plaintiff's request for emergent appellate relief, the Family Part judge filed a supplemental statement of reasons pursuant to Rule 2:5-1(b) in support of her July 28, 2014 order.

2 Although plaintiff did not file an amended notice of appeal indicating he sought review of the November order, we consider his arguments since the two orders are integrally entwined.

3 Those twelve factors are

1) the reasons given for the move; (2) the reasons given for the opposition; (3) the past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move; (4) whether the child will receive educational, health and leisure opportunities at least equal to what is available here; (5) any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location; (6) whether a visitation and communication schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child; (7) the likelihood that the custodial parent will continue to foster the child's relationship with the noncustodial parent if the move is allowed; (8) the effect of the move on extended family relationships here and in the new location; (9) if the child is of age, his or her preference; (10) whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent; (11) whether the noncustodial parent has the ability to relocate; (12) any other factor bearing on the child's interest.

[Baures, supra, 167 N.J. at 116-17.]