DOCKET NO. A-0195-14T2 (N.J. Super. App. Div. Mar. 16, 2016)

DOCKET NO. A-0195-14T2


ERICA VITOLO, Plaintiff-Appellant, v. WILLIAM A. SABBA, JR., Defendant-Respondent.

Erica Vitolo, appellant pro se. William A. Sabba, Jr., respondent pro se.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Guadagno. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FD-18-0319-14. Erica Vitolo, appellant pro se. William A. Sabba, Jr., respondent pro se. PER CURIAM

Erica Vitolo appeals from the August 15, 2014 order of the Family Part denying her application to relocate from New Jersey to Florida with the parties' now three-year-old son. We reverse and remand for a hearing.

As Erica Vitolo, plaintiff in this action, was the defendant in a prior action, we refer to the parties by their first names to avoid confusion.

The parties met in 2009 and lived together off and on through 2010 and 2011. Although the parties were living together in 2012 when Erica became pregnant, they separated soon thereafter and were not living together when their son was born in March 2013. Within weeks of the child's birth, the father, William A. Sabba, Jr., filed a motion in the Ocean County Family Part seeking custody and parenting time. Erica counterclaimed and moved for a change of venue to Somerset County. Court records indicate both motions were withdrawn without prejudice to refile in Somerset County.

None of the Ocean County documents were provided to us.

In her brief, Erica claims she also sought custody, child support, medical coverage, and a paternity test. --------

On October 21, 2013, Erica filed a motion in the Somerset County Family Part, requesting custody, child support, medical coverage, and a paternity test. After DNA testing confirmed William's parentage, the parties appeared in court on February 7, 2014. William sought joint custody, while Erica requested sole custody.

On March 21, 2014, the Family Part issued a temporary order, which granted the parties joint legal custody with Erica named the parent of primary residence. William was granted parenting time for four hours every Sunday, pending his attendance at a parenting course and was required to pay Erica $5,000 for pre- and post-natal care and birthing costs, as well as $125 per week for child support.

On June 30, 2014, Erica filed an application seeking to relocate to Florida with the child. William opposed the application and sought additional parenting time. On August 6, 2014, Erica moved to enforce litigant's rights regarding William's arrears.

On August 15, 2014, both parties appeared pro se before the Family Part judge, who questioned them as to the relief they were seeking. The judge took no testimony, made no findings, and did not issue a written or oral decision.

We glean the following information from the transcript. Erica and the child were living with her mother in Cranford while William was residing in Toms River. In addition to the child with William, Erica has sole custody of a child from another relationship and receives no financial support from the father. Erica had worked in the restaurant industry, but was not employed at the time of her motion. A home Erica had owned in Hillsborough for twelve years was lost to foreclosure and she and her two children moved in with her mother. Erica relies totally on her mother for support.

Erica's mother planned to sell the house where they all lived and move to Florida, although she had not yet listed the house for sale because renovations to a bathroom had not been completed. She planned on listing the house for sale as soon as the renovations were finished. In support of her application, Erica cited Florida's low taxes, its lower cost of living, and a booming tourism industry that could eventually provide her with work. At the hearing, Erica stated that she is living on $135 per week, and asked rhetorically, "if [my mother] goes, which she's going, what . . . am I supposed to do?"

William maintained that Erica's move to Florida was an attempt to keep his son out of his life. He claimed that if Erica is permitted to move to Florida, he will never see his son. He urged that Erica should be able to find work in New Jersey. William submitted a letter confirming that he completed parenting classes in compliance with the court's March 21, 2014 order and has "displayed a strong desire to do whatever is required of him to increase his visitation rights and have more quality time raising his son."

The judge asked Erica "how real" the plans for her mother's move were. Erica replied that "the move is for real," and her mother is "going to go." The judge noted that the mother's house had not yet been sold and she had not found a place to live in Florida, but made no findings of fact or conclusions of law. On August 15, 2014, the judge issued a two-sentence order, denying Erica's request to relocate as "premature" and granting an increase in William's parenting time to eight hours per week. The court also set William's arrears at $8,480.

Erica submitted a motion for reconsideration on September 2, 2014, the same day she filed a notice of appeal. The judge denied reconsideration, finding that the appeal divested the Family Part of jurisdiction.

Because the motion judge made no findings, we are compelled to remand for an evidentiary hearing. As these are self-represented parties and the judge failed to follow well-established procedures to resolve this matter, we provide the following guidance for the hearing.

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." Morgan v. Morgan, 205 N.J. 50, 64 (2011). As this is an application by a custodial parent to move away in a case in which the noncustodial parent sees the child for eight hours per week, Erica's application is a removal motion. See ibid. "Once the parties' status is determined and the case is denominated as one involving removal, the 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.'" Id. at 65-66 (quoting Baures v. Lewis, 167 N.J. 91, 118 (2001)). As such, Erica must prepare and present a visitation proposal at the hearing.

This initial burden on Erica to prove her prima facie case "is not a particularly onerous one." Baures, supra, 167 N.J. at 118. It requires her to bring forth "evidence that, if unrebutted, would sustain a judgment in [her] favor." Ibid. This test "'accords particular respect to the custodial parent's right to seek happiness and fulfillment,' guarantees 'regular communication and contact [between the non-custodial parent and the child] of a nature and quality to sustain that relationship,' and 'incorporates a variation on a best interests analysis by requiring proof that the child will not suffer from the move.'" MacKinnon v. MacKinnon, 191 N.J. 240, 257 (2007) (alterations in original) (quoting Baures, supra, 167 N.J. at 97).

The trial judge must assess twelve factors in determining whether Erica has made a prima facie case:

(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.]

"Obviously not all factors will be relevant and of equal weight in every case." Id. at 117. "Visitation is not an independent prong of the standard, but an important element of proof on the ultimate issue of whether the child's interest will suffer from the move." Id. at 122.

If Erica fails to produce evidence on these issues, William will have no duty to go forward and a judgment denying removal should be entered. See id. at 118. However, if Erica makes a prima facie showing, the burden shifts to William to "produce evidence opposing the move as either not in good faith or inimical to the child's interest." Id. at 119. William has already suggested that the reasons offered by Erica for the move are pretextual. He will have the opportunity to demonstrate that Erica is not acting in good faith. After William has gone forward, Erica may rest or produce additional evidence regarding her motives. Id. at 120.

After hearing testimony from the witnesses, the judge must determine whether Erica is acting in good faith or attempting to stymie William's relationship with his child. This done by applying the burden of proof and the standards announced in Baures.

We reverse and remand for proceedings consistent with our opinion. When Erica sought relief in June 2014, she claimed her mother's move was imminent. To avoid further delay, the remand judge will schedule a conference on this matter within thirty days of our opinion, and complete the remand hearing within sixty days of the conference. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.