Opinion
DOCKET NO. A-0426-11T4
07-25-2012
JOHN C. BARRETT, Plaintiff-Appellant/ Cross-Respondent, v. KERRY M. BARRETT, Defendant-Respondent/ Cross-Appellant.
Donahue, Hagan, Klein, Newsome, O'Donnell & Weisberg, P.C., attorneys for appellant/cross-respondent (Lynn Fontaine Newsome, of counsel and on the brief; Terryann K. Bradley, on the briefs). Day Pitney, L.L.P., attorneys for respondent/cross-appellant (Hope S. Cone and Florice E. Pressman, on the briefs).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and Koblitz.PER CURIAM
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-404-00.
Donahue, Hagan, Klein, Newsome, O'Donnell & Weisberg, P.C., attorneys for appellant/cross-respondent (Lynn Fontaine Newsome, of counsel and on the brief; Terryann K. Bradley, on the briefs).
Day Pitney, L.L.P., attorneys for respondent/cross-appellant (Hope S. Cone and Florice E. Pressman, on the briefs).
Both parties appeal from a post-judgment order of August 29, 2011, after a plenary hearing, denying Kerry's application to relocate with their fourteen-year-old son to Kansas City, Missouri, more than doubling John's child support to $11,250 per month and eliminating his mid-week parenting time. The trial judge also ordered that if John sought a decrease in child support, Kerry could renew her application for relocation. After reviewing the record in light of the contentions advanced by both parties on appeal, we affirm.
We refer to the parties by their first names for ease of reference.
The parties were married in 1994. Their son was born in 1997. A complaint for divorce was filed in 1999. In 2002, after a full testimonial hearing and prior to their divorce, the trial judge allowed Kerry to move back to New York City with their son over John's objection. At the same time, the judge set a schedule providing John parenting time six out of every fourteen days and five full weeks during the summer. The parties were divorced in 2003 after agreeing to child support of $5250 per month and term alimony for thirty-five months at $5000 per month. In 2007, after interviewing their son and conducting a plenary hearing, the trial judge denied John's application for a change in primary residential custody premised on Kerry's move from New York City to Chester, in Morris County. John maintained that he would not have objected had Kerry moved to Essex County. The judge noted in his 2007 opinion that, since the divorce filing in 1999, the parties had forty-two scheduled court appearances resulting in twenty-five court hearings. The same trial judge heard and decided all contested issues between the parties, including the 2011 order under appeal.
We will not disturb the trial judge's findings unless they are demonstrated to lack support in the record with substantial, credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). We must give due regard to the trial judge's credibility determinations and "feel for the case" based upon the opportunity of the judge to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). 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. Id. at 412.
I
John argues on appeal that the judge erred by more than doubling his child support obligation without a case information statement (CIS) from either party as required by Rule 5:5-4, a showing of changed circumstances, any reference to the statutory criteria for setting child support, N.J.S.A. 2A:34-23(a), or a request by Kerry for such relief.
This Rule requires that any application for modification of support include a copy of the prior and current CIS.
The trial judge explained his reasons for increasing support after noting that, although the son was now a teenager, child support had not been increased since 2002. He stated that Kerry wanted to move to Kansas City in part for economic reasons. The standard of living was lower in Missouri and she and their son would have access to her father's and sister's country clubs there. He also noted that John wanted the child to remain in New Jersey and attend Montclair Kimberly Academy (MKA), offering to pay the tuition of $37,000 per year. Instead, the judge ordered the child to remain in New Jersey and continue to attend public high school, thereby saving John the cost of tuition. The trial judge noted that "[t]his increase [in child support] will allow [Kerry] to maintain a residence in New Jersey and is an integral part of the court's decision."
The Child Support Guidelines state that "[s]tudies have shown that expenditures are higher than the average for teen-aged children and lower than the average for preteen children." Pressler and Verniero, Current N.J. Court Rules, Appendix IX-A(7)(g) to R. 5:6A (2012).
The parties are financially comfortable, as the judge noted in prior decisions. The trial judge incorporated into this decision his prior decision from 2002 allowing Kerry to move to New York, as well as his 2007 decision denying John's application for a change of custody. In 2007, the judge stated:
These are two well-educated, financially advantaged parents who care for their only child. They are both devoted to their son and he leads a magical life that is provided for him by both of these caring and loving parents.
In 2002, the parties sold the marital home for $1.9 million and each party realized approximately $500,000 from the proceeds. The equitable distribution set forth in the judgment of divorce (JOD), although not always explicit as to the values of the assets, revealed the significant net worth of the parties. In the JOD, the parties agreed to child support well above the guidelines maximum for one child without referencing the income of the parties, a CIS or the New Jersey Child Support Guidelines (CSG). R. 5:6A.
The current maximum support for one child is $453 a week, or $1963 a month. The guidelines apply to a maximum combined net weekly income of the parents of $3600, or $187,200 a year. Pressler and Verniero, Current N.J. Court Rules, Appendix IX-F to R. 5:6A (2012).
John testified at the 2011 removal hearing:
Nothing would make me happier than to keep both parents in [our son's] life, and if itHe told the judge that he and Kerry have "had conversations up to $10,000 per month for child support." Apart from direct support, in opposition to Kerry's argument that her father would pay for private school in Kansas City, as we indicated, John also offered to pay over $3000 a month in tuition if his son remained in New Jersey.
meant adding a little extra money to make Kerry's life a little bit easier and [his] life a little bit easier, I would certainly do it within reason.
When John feared the removal of his son to a distant state, he offered to pay significantly increased support and educational costs. The trial judge reasoned that Kerry's economic reason to relocate would be counteracted by accepting John's proposed increase in support, which the judge also deemed appropriate because of the lack of an increase for approximately eight years. Thus, the judge did not abuse his discretion in dramatically increasing child support without reference to the statutory factors or CSG.
Child support is ordinarily adjusted every two years. R. 5:6B.
We note that Rule 5:6A indicates that the CSG may be "disregarded by the Court only where good cause is shown. . . . Good cause shall consist of . . . the presence of other relevant factors which may make the guidelines inapplicable." Such good cause exists here.
II
John also appeals the judge's decision to eliminate his mid-week parenting-time with his son. After the judge interviewed the child, he stated,
[the child] made it clear to me he didn't like the mid-week, Tuesdays. And we talked about, that wherever he lived that, that would be ending.
When he testified, John agreed that he would be willing to eliminate the Tuesday visits, although he preferred that they be rescheduled to a Thursday. The trial judge asked John:
If [the child] stayed in New Jersey and let's just carry it forward into what might be the reality of that, mom relocates to Madison, Mendham or Chatham, and he's going to one of those schools, he's not in MKA, okay. And there's no more midweeks and we're going to increase the child support, there's a bigger number, do you think that maintains your relationship with your son?John answered, "Absolutely." The judge was also keenly aware that his decision would be applicable only while the parties' son attended high school. We detect no abuse of discretion in eliminating John's mid-week parenting time at the request of his teenage son.
III
Relying on Baures v. Lewis, 167 N.J. 91 (2001), Kerry cross-appeals, arguing that the trial judge's decision denying her request to relocate is contrary to New Jersey case law. In Baures, supra, the Court indicated that the preliminary question in a removal case is whether the non-custodial parent "shares physical custody either de facto or de jure." Id. at 116. If the non-custodial parent does share custody, then the motion to relocate with the child is a motion for a change of custody and the moving party must show both a change of circumstances and that the move is in the child's best interests. Ibid. (citing Chen v. Heller, 334 N.J. Super. 361, 381-82 (App. Div. 2000)). Although John's parenting schedule of six out of fourteen nights certainly is at a level similar to shared residential custody, when Kerry successfully applied to relocate to New York, the trial judge labeled John as "the non-custodial parent." Thus, we analyze the move under the standard set forth for a non-custodial parent.
If the objecting parent does not share custody, than the court shall determine whether the movant has met his or her burden of proving a good faith reason for the move and that the move will not be inimical to the child's interest. Baures, supra, 167 N.J. at 116. In 2011, the trial judge found that
it would be inimical to [the son's] interests to relocate 1000 miles away from his father's [residence] in New Jersey. . . . Mr. Barrett is entitled to be a real part of his son's life during these four high school years. . . . For the last 12 years Mr. Barrett and Ms. Barrett have lived within 40 miles of each other. This
proximity has benefited [their son] and the court believes that this decision will continue the benefit for him.
In addition, by dramatically increasing child support to benefit Kerry's family's financial situation, the judge eliminated her primary reason for moving. Kerry has lived in the New York metropolitan area since before the parties' relationship began. John argues that Kerry's true reason for seeking to move was her desire to remove herself from constant involvement with John. Certainly, the conflict between the parties was continuous. Not only were they in court frequently, but they kept the court-appointed parenting coordinatorextremely busy resolving conflicts out of court.
Kerry's younger child also lives with her.
See Segal v. Lynch, 417 N.J. Super. 627, 635-36 (App. Div. 2011), certif. granted, 209 N.J. 190, for a description of the role of parenting coordinators.
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The trial judge specifically noted the applicability of Baures, but did not specifically analyze the twelve factors to be considered. Baures, supra, 167 N.J. at 116-17. Those 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.
[Ibid.]
In his 2002 decision allowing Kerry to relocate to New York City, the judge noted that Kerry's testimony concerning future job opportunities as a model and actress, as well as her desire to be close to her friends in New York, were a good reason to allow her to relocate only fifteen miles away. He noted that:
The parties have knowingly stipulated that Mrs. Barrett does not intend to move to Kansas City at this time and that New Jersey will remain the "home state" for [the son] and jurisdiction shall continue in New Jersey for all future applications and no litigation shall commence in any other state, so long as the non-custodial parent (Mr. Barrett) resides in New Jersey.
The judge did not explicitly discuss the Baures factors as they applied to the facts he found in 2011. See Pressler and Verniero, Current N.J. Court Rules, comment 1 on R. 1:7-4 (2012). Such a failure to articulate reasons "'constitutes a disservice to the litigants, the attorneys and the appellate court.'" O'Brien v. O'Brien, 259 N.J. Super. 402, 407 (App. Div. 1992) (quoting Curtis v. Finneran, 83 N.J. 563, 569-70 (1980)). However, our consideration of the Baures factors supports the judge's conclusions.
The motion judge explicitly sought "peace" between the parties for the four years of their son's high school education. We note that the son has now completed his first year of high school in New Jersey. Given the trial judge's extensive familiarity with this family and his long experience in the Family Part, as well as his clear reference to Baures, we defer to his finding that relocation would be "inimical" to the child's interests, even though he did not explicitly review each of the pertinent factors.
To the extent that we have not specifically addressed any of the parties' arguments, we find them to be without sufficient merit to warrant a discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION