Cross–Appellant, v. Cross–Respondent. (2013)

Husband Brian T. Ward appeals from the August 24, 2012 decision as amended October 15, 2012, after an eleven-day trial, awarding wife Julia K. Ward primary custody of the parties' two children and allowing her to relocate to Massachusetts.   He also appeals from the November 20, 2012 denial of his motion for a stay of the removal.   Julia ¹ cross-appeals challenging the child support award.   After reviewing the record in light of the contentions advanced on appeal, we affirm based on the thorough and comprehensive written opinions of Judge DeLorenzo.

The parties were married in 1999 and both Julia and Brian initially worked full-time.   In 2000, after the birth of their older son G.W.,² who suffered from hearing loss,³ Julia reduced her work hours to part-time.   Julia stopped working in 2002 with the birth of their second son, C.W. Julia earned approximately $90,000 a year when she was working full-time.

Brian is employed by Hartz Mountain Industries, Inc. in Secaucus, where he has worked for roughly twenty-five years.   He is an Assistant Vice President, working in the Finance Department, with a base salary of approximately $112,000.   In the recent past, he has earned approximately $150,000 to $217,200 depending on his bonus.

The parties moved from Hawthorne to Midland Park in 2004 so that G.W. could receive special resources.   They identified the Midland Park School District as having the best resources for G.W., as it was the home district of the Bergen County Special Services Hearing Impaired Program.   Both children excelled academically.

During their marriage, Julia took primary care of the children, while Brian was the breadwinner.   Brian testified that Julia did ninety to ninety-five percent of the childcare.   Brian was a coach and mentor in the children's sports activities.

At the end of January 2011, Julia filed for divorce.   The following month Brian agreed to voluntarily remain out of the marital residence.   They developed a parenting time schedule in which Brian had the children on alternating weekends, and Wednesday evenings that later turned into Wednesday overnight visits.

The parties retained Dr. David S. Gomberg, Ph.D. as a joint expert to conduct a custody/relocation evaluation.   On February 15, 2012, Dr. Gomberg completed the custody evaluation and recommended that the parties share legal custody, with Julia designated as the parent of primary residence.   Dr. Gomberg had no doubt that Julia was the primary caregiver for the children, citing her familial responsibilities, which included preparing meals, getting the children dressed in the morning, helping with homework, attending parent/teacher conferences, organizing the children's activities, and bringing them to their doctor's appointments.   Dr. Gomberg did not believe the children were mature enough to provide an opinion about their custody preference.

Julia sought full-time employment after C.W. began first grade.   From 2009 to 2011, she attempted to get a job in the tri-state area.   In March 2011, she advised Brian, by email, that she wanted to relocate to the Massachusetts/Connecticut area and would be expanding her job search to those locations.   She did not seek employment in New York or New Jersey since December 2011.

Julia alleged that there were greater employment opportunities in Massachusetts, she will be closer to her parents and friends, and the Concord school district is superior to the Midland Park School District.⁴  Julia secured full-time employment in Waltham, Massachusetts working at National Grid as a Senior Analyst earning over $85,000.⁵  Julia acknowledged that if she received a comparable job offer in New Jersey, she would still elect to move to Massachusetts.   When Julia initially secured employment in Massachusetts, her removal application was denied by the court as non-emergent, and her job offer was rescinded.   However, upon securing a second job offer at the same company, Judge DeLorenzo approved Julia's proposed removal of the children to Massachusetts.

Dr. Gomberg recommended that Julia be allowed to relocate to Massachusetts with the children.   If she relocated with the children, Dr. Gomberg recommended that Brian be granted substantial parenting time during summer vacation, three-day weekends, holidays and school recesses.   If she was not allowed to relocate, Dr. Gomberg recommended that the current parenting time schedule remain in effect, with Julia being the parent of primary residence.

Dr. Gomberg opined that the parents had wisely not involved the children in the divorce.   Over the past year, the parties agreed to increase Brian's parenting time and agreed that Julia would facilitate the relationship between the children and their father.   Dr. Gomberg believed that the children were sociable and savvy and would make new friends easily in Massachusetts.

Brian argues that Judge DeLorenzo abused his discretion in not awarding fifty-fifty shared parenting time, not interviewing the two children, applying the Baures ⁶ factors when the removal application was made in the context of the initial custody determination and rejecting a portion of the parenting plan proposed by the joint expert.   Julia cross-appeals, maintaining that the child-support worksheet utilized by Judge DeLorenzo in August 2012 is inaccurate in that it used an average income for Brian for the last three years and used a shared parenting calculation, even though Julia was permitted to relocate three months later, which then reduced the number of overnights Brian was allowed.

The cross-appeal is without merit.   Certainly once Julia moved and the parenting schedule changed, Julia may have had reason to seek an upward modification.   Similarly, Brian would then be able to support his claim that Julia is earning more than the $85,000 in salary imputed to her.   However, at the time the judge made the calculations, the parenting schedule was still shared.   Brian's income was properly averaged, given the history of bonuses found by the judge.   Julia's income was fairly imputed.   Either party may seek a new child support calculation based upon a change in circumstances, now that Julia has relocated.  Lepis v. Lepis, 83 N.J. 139, 157–58 (1980).

Brian argues that the trial judge should have applied the best interests standard, rather than the Baures standard, as the removal application was made in the context of the initial custody determination.   Julia asserts that since she had been the primary custodial parent and responsible for the bulk of the caretaking during the marriage, the Baures standard governs.

We should not disturb the trial court's findings unless the record does not support the determination with substantial, credible evidence.  Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483–84 (1974).   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).

The New Jersey Supreme Court has noted that “[t]he distinction between custody and removal is important in terms of the burden of proof.   A custody case is squarely dependent on what is in the child's best interests.”  Morgan v. Morgan, 205 N.J. 50, 64 (2011).

Procedurally, the first step of the removal test considers the type of parenting arrangement between the parties and whether the matter is actually an application for a change in custody as opposed to a removal case.   For example, a removal motion by a party in a case where the children rotate between houses, with each parent assuming full parental responsibility half of the time, is clearly an application to change the custodial status which cannot be maintained from a distance.   In contrast, an application by a custodial parent to move away in a case in which the noncustodial parent sees the children once or twice a week and is not seeking to change that state of affairs, is a removal motion.   The possible scenarios are limitless;  whether the motion should be viewed through the Baures prism or as one for custody will depend on the facts.

[Ibid.]

The parties voluntarily agreed on a parenting schedule in which Brian would have parenting time with his children every other weekend and additional overnight parenting time on Wednesdays.   As the judge noted, Brian only requested a shared parenting schedule after it became clear that Julia wanted to move the children out of state.   Judge DeLorenzo thoroughly reviewed the fourteen factors outlined in N.J.S.A. 9:2–4(c).⁷  The judge acknowledged, when considering factor eleven, “the geographical proximity of the parents' homes[,]” that Julia proposed to move four hours away, which was the approximate distance between Brian's residence and the family's condominium in Vermont that Brian frequently visited.   The joint expert testified, and Judge DeLorenzo found, that Julia was the primary caretaker of the children and that the current parenting schedule should be maintained.

“In implementing the ‘best-interest-of-the-child’ standard, courts rely heavily on the expertise of psychologists and other mental health professionals.”  Kinsella v. Kinsella, 150 N.J. 276, 318 (1997).   Here the parties agreed upon an expert and did not present any conflicting expert testimony.   Judge DeLorenzo relied to a great extent on the neutral opinions and recommendations of the joint expert.

Decisions regarding custody and visitation are in the Family Part judge's sound discretion and will only be reversed for abuse of discretion.  Levine v. Bacon, 152 N.J. 436, 442 (1998).   Unless the discretion is clearly arbitrary and unreasonable under the circumstances, it is not our function to substitute our judgment for that of a trial judge.  Gittleman v. Cent. Jersey Bank & Trust Co., 103 N.J.Super. 175, 179 (App.Div.1967), rev'd on other grounds, 52 N.J. 503 (1968).   The conclusions of trial judges regarding child custody “are entitled to great weight and will not be lightly disturbed on appeal.”  DeVita v. DeVita, 145 N.J.Super. 120, 123 (App.Div.1976);  see also Sheehan v. Sheehan, 51 N.J.Super. 276, 295 (App.Div.), certif. denied, 28 N.J. 147 (1958).

The best-interest determination followed by a Baures analysis was appropriate.   Judge DeLorenzo first found that the earlier voluntarily-agreed-upon parenting schedule should be maintained as it was in the children's best interests.  N.J.S.A. 9:2–4(c).  As that schedule did not involve a fifty-fifty parenting arrangement, the judge properly went on to consider the Baures factors.  Morgan, supra, 205 N.J. at 64.   We affirm the judge's custody, time-sharing and removal decisions on the basis of his thorough and comprehensive twenty-nine-page written opinion of August 24, 2012 and five-page written opinion of November 20, 2012 denying reconsideration.   We add only the following comments.

Judge DeLorenzo chose not to interview the nine and eleven-year-old boys.   Rule 5:8–6 vests in the trial court the discretion to interview a child if there is a genuine and substantial issue of custody.   Pressler & Verniero, Current N.J. Court Rules, comment 1.4.3 on R. 5:8–6 (2013) (stating that a judge's interview with a child is now discretionary, rather than mandatory, regardless of the child's age).   We find no reason to conclude that the judge's decision not to interview the children constitutes an abuse of discretion.

The joint expert interviewed both children without asking them the ultimate question about which parent they preferred to live with.   These children were well-adjusted and well-bonded to both parents.   We commend both parents for avoiding the common pitfall of enmeshing their children in the divorce dynamic.   We can understand why asking such young children to choose between parents would be counter-productive and destructive to the very well-being that both parents have successfully nurtured.   See Mackowski v. Mackowski, 317 N.J.Super. 8, 15 (App.Div.1998) (Kestin, J.A.D., concurring).

Affirmed.

FOOTNOTES

FN1. We refer to the parties by their first names only for ease of reference and intend no disrespect..  FN1. We refer to the parties by their first names only for ease of reference and intend no disrespect.

FN2. We use the children's initials to protect their identity..  FN2. We use the children's initials to protect their identity.

FN3. G.W. wears a hearing aid and had cochlear implant surgery for one ear..  FN3. G.W. wears a hearing aid and had cochlear implant surgery for one ear.

FN4. Dr. Gomberg called the Concord schools and determined that all the services for the hearing impaired offered in Midland Park were also available in Concord.   Julia testified that Concord's schools ranked second out of 735 school districts in Massachusetts, however, no documentation was provided to support this claim..  FN4. Dr. Gomberg called the Concord schools and determined that all the services for the hearing impaired offered in Midland Park were also available in Concord.   Julia testified that Concord's schools ranked second out of 735 school districts in Massachusetts, however, no documentation was provided to support this claim.

FN5. Brian asserts that Julia's current salary is $100,000 plus bonus.   Julia concedes that her salary is no longer $85,000, although she does not specify her current earnings..  FN5. Brian asserts that Julia's current salary is $100,000 plus bonus.   Julia concedes that her salary is no longer $85,000, although she does not specify her current earnings.

FN6. Baures v. Lewis, 167 N.J. 91 (2001)..  FN6. Baures v. Lewis, 167 N.J. 91 (2001).

FN7. When awarding custody, and determining a child's best interests:the court shall consider but not be limited to the following factors:  [1.] the parents' ability to agree, communicate and cooperate in matters relating to the child;  [2.] the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;  [3.] the interaction and relationship of the child with its parents and siblings;  [4.] the history of domestic violence, if any;  [5.] the safety of the child and the safety of either parent from physical abuse by the other parent;  [6.] the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;  [7.] the needs of the child;  [8.] the stability of the home environment offered;  [9.] the quality and continuity of the child's education;  [10.] the fitness of the parents;  [11.] the geographical proximity of the parents' homes;  [12.] the extent and quality of the time spent with the child prior to or subsequent to the separation;  [13.] the parents' employment responsibilities;  [14.] and the age and number of the children.   A parent shall not be deemed unfit unless the parents' conduct has a substantial adverse effect on the child.[N.J.S.A. 9:2–4(c) (emphasis added).].  FN7. When awarding custody, and determining a child's best interests:the court shall consider but not be limited to the following factors:  [1.] the parents' ability to agree, communicate and cooperate in matters relating to the child;  [2.] the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;  [3.] the interaction and relationship of the child with its parents and siblings;  [4.] the history of domestic violence, if any;  [5.] the safety of the child and the safety of either parent from physical abuse by the other parent;  [6.] the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;  [7.] the needs of the child;  [8.] the stability of the home environment offered;  [9.] the quality and continuity of the child's education;  [10.] the fitness of the parents;  [11.] the geographical proximity of the parents' homes;  [12.] the extent and quality of the time spent with the child prior to or subsequent to the separation;  [13.] the parents' employment responsibilities;  [14.] and the age and number of the children.   A parent shall not be deemed unfit unless the parents' conduct has a substantial adverse effect on the child.[N.J.S.A. 9:2–4(c) (emphasis added).]

PER CURIAM