NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6042-12T4
JOSHUA SCHWAGER,
Plaintiff-Appellant,
v.
CHANA AHUVA SCHWAGER,
Defendant-Respondent.
Argued January 14, 2015 - Decided February 17, 2015
Before Judges Waugh, Maven, and Carroll.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Passaic County, Docket No. FM-16-1833-11.
Brian E. Fleisig argued the cause for
appellant
(The
Fleisig
Law
Firm
LLC,
attorneys; Mr. Fleisig, of counsel and on
the briefs).
Richard H. Weiner argued the cause for
respondent
(Aronsohn
Weiner
Salerno
&
Bremer, P.C., attorneys; Cipora Winters and
Dennis F. Feeney, on the brief).
PER CURIAM
Plaintiff Joshua Schwager appeals the June 26, 2013 Family
Part order permitting defendant Chana Ahuva Schwager to relocate
from New Jersey to Ohio with the parties' two minor children.
Plaintiff also challenges a September 25, 2012 interim order
that
permitted
plenary
the
hearing,
removal
and
an
on
a
October
temporary
4,
2012
application to vacate that interim order.
basis
order
pending
denying
a
his
For the reasons that
follow, we reject plaintiff's arguments and affirm the orders.
I.
The parties married in a religious ceremony in 2004 and in
a civil ceremony in 2005.
2009.
Both
parties
Administration.
They have twin children, born in July
possess
Masters'
degrees
in
Business
When the parties married, plaintiff worked for
Merrill Lynch and defendant was employed by Lehman Brothers.
When
Lehman
maintained
Brothers
her
sought
employment
bankruptcy
with
its
protection,
successor
defendant
company,
LAMCO,
earning approximately $300,000.00 in annual salary.
Shortly
after
the
marriage,
plaintiff
lost
his
tried unsuccessfully to create various businesses.
job
and
From 2008
until the complaint for divorce three years later, plaintiff had
no earned income.
According to plaintiff, he stayed home with
the children and was their primary caretaker.
Plaintiff filed a complaint for divorce in June 2011.
June
2012,
defendant
was
effective December 31, 2012.
terminated
from
her
In
employment,
She was to receive her base salary
and medical benefits through December 31, 2012, and would then
2
A-6042-12T4
receive,
in
January
2013,
a
$93,750
bonus
and
a
$112,500
severance payment.
The
divorce
trial
proceeded
before
Judge
Terry
Paul
Bottinelli on August 6, 8, 10, 15, and 17, 2012, and September
4, 5, and 6, 2012.
After expert evaluations regarding issues of
custody and parenting time were concluded, the parties reached a
settlement that would be incorporated in the Dual Final Judgment
of Divorce (DJOD).
Based upon the joint recommendation of their
experts, the parties agreed that defendant was to be the Parent
of Primary Residence (PPR) and plaintiff would be the Parent of
Alternate
Residence
(PAR).
A
DJOD
was
formally
entered
on
September 25, 2012.
On
September
plaintiff
by
letter
Cleveland, Ohio.
offer.
21,
2012,
that
defendant
she
had
advised
received
the
a
court
job
offer
and
in
Defendant was given seven days to accept the
Defendant sought leave to file an Order to Show Cause
(OTSC) for permission to move to Cleveland with the children
should
plaintiff
not
consent
proposed parenting plan.
to
the
move
and
defendant's
When plaintiff did not consent, the
court entered an order on September 25, 2012, allowing defendant
to temporarily remove the children to Cleveland so that she
could accept the job offer, pending a final hearing.
3
The order
A-6042-12T4
permitted plaintiff to move to dissolve the temporary relief on
two days' notice.
Plaintiff promptly moved by OTSC to vacate the September
25, 2012 order.
October
3,
Judge Bottinelli heard argument on the OTSC on
2012.
He
denied
plaintiff's
application
the
following day, concluding that there was no bad faith on the
part
of
defendant,
and
that
plaintiff
was
not
defendant's decision to relocate to Cleveland.
determination,
the
judge
recognized
that
surprised
by
In making that
"there
are
various
competing issues . . . here, not the least of which is the fact
that in this economy if one gets a good paying job, one does not
[] lightly turn that job down."
N.J.
50
(2011),
Judge
Citing Morgan v. Morgan, 205
Bottinelli
recognized
the
landscape of jobs, commutes, and parental obligations.
get jobs.
They have to commute to jobs.
commute cross [sic] country to jobs.
difficult.
changing
"People
Sometimes people
And it's a problem.
It's
But you've got to go where you can make [] money for
your family."
Here, the move would "enable [] defendant to have
that job that she was offered, which is going to pay her in
excess of $200,000."
The judge next found that as far back as August 6, 2012,
the first day of the divorce trial, defendant made plaintiff
aware that she was considering relocating to Cleveland.
4
The
A-6042-12T4
judge
also
noted
that
although
he
permitted
defendant
to
temporarily relocate with the children to Cleveland, he included
a parenting plan under which plaintiff would have comparable
parenting time with the children.
The judge further determined
that it was "beyond dispute that the primary caretaker of the
children is and has been the defendant."
The initial December 2012 return date for the final hearing
on defendant's removal application was adjourned at plaintiff's
request.
When
plaintiff
sought
the
hearing
another
commenced
adjournment
to
on
March
obtain
20,
new
2013,
counsel,
which the court denied.1
Defendant testified that the DJOD designated her as the
PPR.
Plaintiff had parenting time on Sundays, Tuesdays, and
Thursdays as well as on alternate weekends.
Those arrangements
were reached by agreement between herself and plaintiff and were
based on the joint recommendation of their parenting experts Dr.
Fridman and Dr. Weintraub.
Defendant
Lehman
then
Brothers
testified
where
she
to
her
earned
employment
$374,000
history
in
2010
with
and
1
The judge denied the adjournment request because: (1)
plaintiff's earlier counsel was allowed to withdraw on the
condition that there be no further delays; (2) defendant flew in
that morning and needed to fly back to Cleveland the next night;
and (3) defendant paid her expert witness a non-refundable
$7500 fee to testify the next day.
5
A-6042-12T4
approximately $333,000 in 2011.
In 2012, she earned $387,500,
with a base salary of $225,000.
During those years, plaintiff
was not earning a salary.
Defendant was terminated in June
2012, and she would stop receiving a salary as of January 1,
2013.
She would then no longer be able to support herself or
her family if she did not find replacement employment.
She
began a job search in June 2012, upon learning that her job was
terminated.
After searching for months for jobs in New Jersey,
New York, Connecticut, and Pennsylvania, she was forced to look
outside those regions.
She chose to look in Cleveland because
her family was located there, and because she had started her
career and still had contacts there.
Plaintiff, both parties'
experts, and the court were made aware of her contemplated move
to Cleveland during the divorce proceedings.
Defendant received a job offer from a bank in Cleveland on
September 21, 2012.
The job would pay her $165,000.00 per year
with a signing bonus of $40,000.00.
She would also receive an
annual discretionary bonus that was to be determined at a later
date.
After receiving temporary permission from the court, she
accepted the job offer.
On October 22, 2012, defendant moved to
Cleveland with the children, where she rented a home for $1000
per month.
Her new home was more spacious than the parties'
6
A-6042-12T4
marital home in Passaic, New Jersey.
She sold the marital home
for $360,000, at a loss of $24,000.
Defendant's testimony continued on April 22, 2013.
She
testified that the education opportunities for the children in
Cleveland were equal to, if not better than, those in Passaic.
The tuition rate was discounted, and the children also received
a scholarship, because defendant's father was employed by the
school they attended.
According to defendant, the children were
very happy living in Cleveland.
Defendant next testified that she had complied with all
alimony
and
other
court-ordered
financial
obligations.
That
included a monthly stipend of $300 for plaintiff's monthly trip
to Cleveland.
In contrast, Plaintiff had not been complying
with his $400 weekly child support obligation.
At the time of
the hearing, plaintiff was $6000 in arrears.2
Defendant's
employer
was
aware
of
the
parenting
time
schedule, and permitted her to take off one Friday and Monday
each
month
testified
to
that
[plaintiff].
travel
she
was
to
Passaic
"not
with
trying
to
the
keep
children.
the
The kids deserve to see [plaintiff].
kids
She
from
[Plaintiff]
deserve[s] to see the kids as often as possible" within the
confines of the parenting plan.
2
It was also important that the
As of May 14, 2013, plaintiff was in total arrears of $7200.
7
A-6042-12T4
children
maintain
continued
communication
via
Skype
with
plaintiff.
Morton
hundreds
Fridman,
of
defendant.
M.D.,
"best
a
psychiatrist
interest"
who
evaluations,
had
performed
testified
for
During the pendency of the divorce litigation, he
conducted a best interest evaluation of the parties' children
"regarding issues of custody and parenting time."
After Dr.
Fridman met with plaintiff's expert Dr. Weintraub during the
divorce litigation, they had jointly concluded that defendant
should have primary residential custody of the children.
Dr. Fridman was again retained by defendant to consider the
relocation issue.
He testified that the reasons she gave for
moving to Cleveland were sound and in the best interest of the
children.
He further opined that defendant was not moving to
distance herself from plaintiff.
Rather, she viewed positively
the children's relationship with plaintiff.
Dr.
Fridman
then
addressed
schedule that was currently in
the
court-ordered
place.
The
parenting
schedule allowed
plaintiff to see the children every other weekend, with one
weekend being exercised in Ohio and the other in New Jersey.
It
also
He
included
opined
that
schedule
two
this
that
midweek
plan
existed
visits
was
before
a
of
about
reasonable
the
8
move,
three
hours.
alternative
and
that
it
to
the
enabled
A-6042-12T4
plaintiff
to
maintain
a
"warm,
close
relationship
with
the
children."
In his report, Dr. Fridman recommended that plaintiff move
to Cleveland.
Plaintiff declined to do so, stating that:
(1)
he
sales
the
had
a
car
opportunity
in
Passaic;
(2)
he
had
support of the Jewish community in Passaic; and (3) the Orthodox
Jewish community in Cleveland had heard propaganda against him.
Dr. Fridman did not find these reasons persuasive.
that
because
plaintiff
was
not
working,
he
He found
could
obtain
employment in Cleveland as easily as he could in Passaic.
Dr. Fridman summarized his recommendations and opined that
defendant should remain in Cleveland with the children.
reasoned
that
defendant
and
the
children
clearly
loved
He
each
other, defendant had and would continue to do a "wonderful job"
raising
the
supports
children
the
family
and
being
financially,
their
she
primary
has
caregiver,
family
support
she
in
Cleveland, and the children are doing well and can be raised
healthy and happy there.
He recommended that if plaintiff chose
to remain in New Jersey the current parenting time plan should
remain in place.
Plaintiff, represented by new counsel, testified on May 14,
2013.
first
He indicated that he was "devastated, shocked" when he
learned
of
defendant's
plan
9
to
move
to
Cleveland
on
A-6042-12T4
September 25, 2012.
He contended that he would not have agreed
to the parenting plan during the divorce proceedings had it not
included the children remaining in Passaic.
to
move
to
Cleveland
permanently
Allowing defendant
would,
in
his
estimation,
destroy his ability to have any continuous relationship with the
children.
Plaintiff testified that he was not working but was living
off loans for the past few months and help that he received from
the Jewish community.
He was also receiving assistance from
Medicare Parts A, B, and D.
However, when questioned on cross-
examination regarding his ability to travel to Cleveland, he
admitted
$300
per
receiving
month
distribution.
approximately
in
He
travel
claimed
$2000
expenses,
that
per
and
medical
month
$7700
in
in
alimony,
equitable
complications,
namely
heart and lung issues, and narcolepsy, made the 450-mile drive
to Cleveland difficult.
Plaintiff testified that once in Cleveland, he would stay
with friends.
the
refusal
However, he maintained that his lack of income,
by
the
Jewish
community
to
house
him,
and
the
requirement that he be within walking distance of a synagogue on
Saturdays, made it untenable for him to travel to Cleveland
despite the financial assistance he received from defendant.
He
also claimed to have met with different people in Cleveland in
10
A-6042-12T4
the
fields
of
real
estate,
investments,
banking,
marketing,
sales, legal, and accounting, in an effort to find employment
there.
He conceded that he did not send out any résumés; he
merely tried to network.
Plaintiff expressed concern that there would be problems
with the visitation schedule if the move to Cleveland became
permanent.
There had been times that he was not allowed to
Skype with his children or defendant had cut the session short
because she did not like the topic of conversation.
that
defendant
was
impeding
his
ability
to
He claimed
relate
to
his
children by referring to her father as the children's "daddy."
There
were
regarding
also
the
problems
children's
with
the
decision-making
education
and
that
the
process
school
administration instead deferred to defendant's wishes.
Following summations by counsel, Judge Bottinelli entered
an
order
granting
comprehensive
oral
defendant's
request
opinion
judge
the
to
relocate.
carefully
In
analyzed
a
the
factors set forth in Baures v. Lewis, 167 N.J. 91 (2001) and
found that the request was made in good faith and that the move
would inure to the benefit of the children.
The judge noted
that defendant "testified convincingly concerning the move, the
benefits, the downsides to the move, and her hopes that the
children
and
[]
plaintiff
would
11
continue
to
nurture
a
A-6042-12T4
father/child
plaintiff
relationship."
"was
unfocused,
In
contrast,
rambling
questions" during his testimony.
and
he
found
deviated
that
from
the
Judge Bottinelli determined
that plaintiff's testimony affirmed Dr. Fridman's opinion that
plaintiff was "[e]asily distracted, circumstantial, tangential
and rambling at times.
hand.
He frequently veered off the topic at
Insight and judgment were compromised."
Regarding Baures factor one, the judge recognized that it
was
"beyond
dispute
that
[]
defendant
is
the
sole
income
provider for not only herself and her twins, but also for her
former husband."
He noted that defendant's
desire to move to Cleveland was motivated by
the reality that her efforts to find
employment in the New York, New Jersey,
Philadelphia, and Connecticut areas were
unsuccessful.
She detailed her efforts,
which included updating and sending her
résumé, collaborating with head hunters,
reaching out to numerous business contacts,
regularly
submit[ing]
postings
on
job
websites, and [having] many meetings, one on
one, to find a job.
She provided the [c]ourt with a four
[-]page, single[-]spaced list documenting
her efforts to find employment. Her efforts
proved fruitful.
And on September 21[],
2012, she received a job offer in the
finance area [] in Cleveland, Ohio.
Regarding
factor
two,
the
court
again
recognized
that
defendant accepted employment in Cleveland after exhausting her
search in the New Jersey area.
Although plaintiff iterated
12
A-6042-12T4
concerns
regarding
defendant's
motivation
for
the
move,
the
judge found that plaintiff had not "documented his contention
that [] defendant could get a job in the New York area, or that
she has moved to Cleveland to get the children away from him.
The evidence is to the contrary."
As to factor three, the judge found that the "history of
the relationship between the [parties] has been one of tension
for several years.
[Defendant] provided for almost all of the
financial needs of the family, and [plaintiff] would generally
stay
at
home."
During
the
"pretrial
and
post[-]trial
proceedings, it was not unusual for [plaintiff] to be late to
court
and,
recognized
on
occasion,
plaintiff's
not
show
medical
up
at
history,
all."
The
including
a
judge
recent
diagnosis of narcolepsy that affected his ability to function
during the day.
Regarding factor four, Judge Bottinelli found that it was
"not disputed that the children will receive [] educational,
health
and
leisure
opportunities
available in the Passaic area."
at
least
equal
to
[those]
He found that there was no
dispute "that the health care facilities and practitioners in
Cleveland [were] excellent.
treating
doctors
in
In fact, [] plaintiff [had] his
Cleveland
13
and
receive[d]
care
at
the
A-6042-12T4
Cleveland Clinic, a noted facility."
The judge determined that
factor five did not apply.
Regarding
visitation
would
factor
and
allow
six,
the
communication
plaintiff
"to
court
was
schedule
submitted
maintain
relationship with the children."
satisfied
a
full
that
by
and
the
defendant
continuous
As to factor seven, it was
"clear . . . that [defendant] has and will continue to foster
the relationship with their father.
confirmed
by
the
testimony
of
Not only has this been
[]
defendant,
but
[it]
was
confirmed by Dr. Fridman that the position taken by [] defendant
in discussing the matter with him has been consistent with her
testimony."
The judge found that there had been compliance with
the schedule for months at that point, except for one occasion.
"It
has
been
proceedings
demonstrated
that
[]
throughout
defendant
is
the
course
attempting
to
of
these
foster
and
promote the relationship . . . [between] her children [and]
their father."
With respect to factor eight, the judge found that there
would
be
Cleveland.
apply.
no
effect
on
plaintiff's
family
by
the
move
to
He next determined that factors nine and ten did not
Regarding
educational degrees.
factor
eleven,
the
parties
had
similar
Plaintiff was unemployed, and other than
"email blasts" he had not made verified "efforts to support his
14
A-6042-12T4
family."
The
judge
found
"throughout this opinion."
that
factor
twelve
was
addressed
He then concluded:
Based on all of the aforementioned, the
[c]ourt is satisfied that there is a good
faith reason for the move to Cleveland.
[The court is] satisfied that the move was
no[t] inimical to the children's interest.
The visitation schedule, as proposed by []
defendant,
is
acceptable.
Upon
consideration
of
the
[eleven]
Baures
factors, the move to Cleveland by []
defendant with the two children is granted.
The
court
implemented
defendant,
noting
the
that
parenting
plaintiff
time
had
plan
failed
proffered
by
submit
any
to
alternate plan.
The
court
then
addressed
defendant's
severance
pay
and
bonus anticipated to be paid in January 2013.
It determined
that
in
those
payments
were
for
work
performed
2012
and
therefore were "right[s] [] not acquired during the marriage."
The "full amount of the bonus related to that period of time
reflects
exempt
extended
post[-]complaint
from
the
equitable
term
of
funding
and
is,
distribution."
alimony
plaintiff
twenty-seven months to thirty months.
therefore,
However,
was
the
fully
court
receiving
from
This appeal followed.
II.
We first consider our standard of review.
the
trial
court
are
binding
on
appeal
adequate, substantial, credible evidence."
15
when
"[F]indings by
supported
by
Cesare v. Cesare,
A-6042-12T4
154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v.
Investors Ins. Co., 65 N.J. 474, 484 (1974)).
We will not
disturb the factual findings and legal conclusions of a trial
judge
unless
we
are
convinced
that
they
are
"so
manifestly
unsupported by or inconsistent with the competent, relevant and
reasonably
credible
justice."
Rova Farms, supra, 65 N.J. at 484.
family
courts
evidence
"possess
as
to
special
offend
expertise
the
in
interests
of
In particular,
the
field
of
domestic relations," and as such "appellate courts should accord
deference to family court factfinding."
Cesare, supra, 154 N.J.
at 412-13.
An
application
for
several principles.
removal
requires
consideration
of
A parent must obtain consent of the other
parent or judicial approval to remove children domiciled in this
State
to
another
state.
See
N.J.S.A.
9:2-2.
The
initial
question to be resolved on a removal application is the "extant
status
of
custody
of
the
parties'
children."
Barblock
v.
Barblock, 383 N.J. Super. 114, 121 (App. Div.), certif. denied,
187 N.J. 81 (2006).
If the custody situation is a "rare de
facto 'shared parenting' arrangement, one in which each parent
essentially
performs
an
equal
caretaking
role,"
the
court
analyzes the removal application under the stricter change-ofcustody test of O'Connor v. O'Connor, 349 N.J. Super. 381, 399-
16
A-6042-12T4
400 (App. Div. 2002).
Barblock, supra, 383 N.J. Super. at 122.
Under
"the
that
standard,
party
seeking
the
change
in
the
custodial relationship must demonstrate that the best interests
of the child[ren] would be better served by residential custody
being vested primarily with the relocating parent."
O'Connor,
supra, 349 N.J. Super. at 398.
If, conversely, the physical custodial relationship among
the
parents
is
such
that
one
parent
serves
as
the
primary
caretaker and the other parent as the secondary caretaker, then
the
custodial
parent's
request
to
remove
the
children
is
governed by the two-part test established in Baures, supra, 167
N.J. at 122.
preponderance
Baures requires that removal be granted where the
of
the
credible
evidence
demonstrates
the
custodial parent has a good faith reason for the move and the
move will not be inimical to the children's interests, i.e., the
children will not suffer from it.
Baures, supra, 167 N.J. at
118; Barblock, supra, 383 N.J. Super. at 121.
This standard
accords particular respect to the custodial
parent's
right
to
seek
happiness
and
fulfillment,
guarantees
regular
communication and contact between the noncustodial 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.
17
A-6042-12T4
[MacKinnon v. MacKinnon, 191 N.J. 240, 257
(2007)
(internal
quotation
marks
and
citations omitted).]
When
the
Baures
analysis
applies,
the
trial
judge
must
evaluate whether the moving party has made a prima facie case by
considering twelve factors, including:
(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
talent
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.]
18
A-6042-12T4
The initial burden on the movant "is not a particularly onerous
one."
Id. at 118.
Once the moving party makes a prima facie
showing, the burden shifts to the non-moving party to "produce
evidence
opposing
the
move
as
either
inimical to the child's interest."
Here,
Judge
Bottinelli
not
in
good
faith
or
Id. at 119.
thoroughly
analyzed
the
Baures
factors and found that defendant made a prima facie case that
the move was in good faith and would not be inimical to the
children.
His
conclusions
are
unassailable.
The
judge's
finding that defendant's acceptance of employment in Cleveland
was crucial to the continued maintenance and well-being of the
family is supported by the record and entitled to deference.
Moreover, members of defendant's family reside in Cleveland and
will be able to provide additional support for the children in
making the transition.
that
afforded
A new visitation schedule was structured
plaintiff
a
reasonable
alternative
to
the
parenting time contained in the DJOD.
Despite
plaintiff's
discontent
with
the
removal,
he
provided no evidence showing that the move was not in good faith
or
would
be
defendant's
Fridman
that
harmful
evidence,
supported
to
the
children.
including
the
the
move.
Nor
expert
did
he
opinion
Plaintiff's
case
rebut
of
Dr.
largely
relied on his contention that the children would suffer because
19
A-6042-12T4
they were farther from him and that he would get to see them
less.
To establish that relocation is not in the children's
best interest, more than mere separation or change in parenting
time must be shown.
Morgan, supra, 205 N.J. at 64 (citing
Baures, supra, 167 N.J. at 113, 117).
Instead, the noncustodial
parent must show that changed parenting time is detrimental to
the child or that "for particular reasons, and in light of the
unique
facts
surrounding
his
or
her
relationship
with
the
child," the child will be unable to adapt to the relocation.
Id. at 66 (citing Baures, supra, 167 N.J. at 120).
produced
no
such
evidence.
Moreover,
plaintiff,
Plaintiff
who
lacks
employment, a home, or family in New Jersey, has simply failed
to demonstrate a valid reason why he cannot move to Cleveland,
where he would then be able to exercise the exact parenting time
that he bargained for in the DJOD.
Plaintiff
argues
that
rather
than
applying
the
Baures
analysis, the court erred in not applying the change of custody
"best
interests"
analysis.
In
advancing
this
argument,
plaintiff relies on the principle espoused in Shea v. Shea, 384
N.J. Super. 266, 271-72 (Ch. Div. 2005) that a plaintiff could
contest custody where, as here, removal is sought soon after a
negotiated custody settlement.
20
A-6042-12T4
In Shea, the parties agreed upon their initial custody and
parenting plan six months prior to incorporating it into their
divorce
judgment.
Id.
at
270.
Due
to
their
negotiated
settlement, rendering a divorce trial unnecessary, the father
had no opportunity to contest custody.
Id. at 271.
The father,
alleging manipulation by the mother, sought a plenary hearing to
allow him the opportunity to present evidence and testimony on
the nature of the custodial relationship, and application of the
best interests analysis.
Id. at 273-74.
The Family Part judge
concluded that the father was entitled to a plenary hearing, and
if he established that the mother had manipulated the Baures
removal procedures, the court would apply the best interests
standard
instead
of
the
Baures
analysis.
Id.
at
273-274.
Plaintiff thus relies on Shea to claim that this case should be
reviewed using the best interests analysis because, like the
father in Shea, he would never have agreed to the custodial
arrangement if he knew defendant was planning to relocate a
short time later.
We find plaintiff's reliance on Shea misplaced.
Any claim
that defendant manipulated the custodial relationship to gain an
advantage in the removal action finds no support in the record.
During
the
recent
divorce
proceedings
both
parties'
jointly recommended that defendant be the PPR.
21
experts
Defendant had
A-6042-12T4
previously
informed
the
experts
of
the
possibility
that
she
might relocate to Cleveland, and the judge also concluded that
plaintiff knew of this potential relocation during the divorce
proceedings.
Plaintiff was well aware of defendant's ties to
Cleveland, as she grew up there and had family there.
We
further
analysis
conclude
applied
here,
that
our
even
result
if
the
would
"best
not
be
interests"
different.
Defendant was the sole breadwinner, and she was motivated by
financial need to relocate close to family in order to accept a
favorable job offer that would provide support for the parties
and their children.
This financial necessity was heightened by
plaintiff's
to
under
the
failure
DJOD,
arrearage.
uphold
resulting
his
in
a
financial
responsibilities
substantial
child
support
Moreover, the unrebutted expert testimony of Dr.
Fridman was that it was in the children's best interests to stay
in Cleveland with their mother.
Plaintiff
also
challenges
defendant's
initial
removal
application, arguing that the OTSC was procedurally improper,
that it denied him due process, and that in any event defendant
had failed to establish such factors that would warrant granting
exceptional relief under Crowe v. De Gioia, 90 N.J. 126 (1982).
We disagree.
application.
Plaintiff was placed on notice of defendant's
He was then given full opportunity to be heard
22
A-6042-12T4
before defendant and the children departed for Cleveland on a
temporary basis.
having
The judge was fully familiar with the matter,
presided
through
the
over
divorce
it
since
trial
its
in
inception
August
and
in
June
2011,
September
2012.
Moreover, analyzing injunctive relief in the context of family
matters is appropriate because "[m]ore than financial contests,
custody
and
parenting
time
disputes
trigger
the
need
for
a
family judge, acting as parens patriae, to prevent harm and
protect the best interests of children."
Parish v. Parish, 412
N.J. Super. 39, 52-53 (App. Div. 2010).
Here the application was emergent, as defendant was only
given seven days to accept the job in Cleveland.
Normal motion
practice, the procedure advocated for by plaintiff, would not
permit timely consideration of the application.
noted,
there
offered
was
another
no
telling
job.
The
when
or
judge
if
As the judge
defendant
correctly
would
concluded
be
that
forbidding defendant to relocate on a temporary basis, pending a
final
hearing,
would
potentially
hardship to the family.
error
in
the
court's
result
in
greater
economic
Under the facts presented, we find no
initial
determination
or
the
procedure
employed in addressing the application on an emergent basis.
Next, relying on Luedtke v. Shobert, 342 N.J. Super. 202
(App. Div. 2001), plaintiff argues that the court abused its
23
A-6042-12T4
discretion in denying him a one-month adjournment of the March
20,
2013
plenary
hearing,
as
a
result
of
which
he
went
unrepresented by counsel during part of the removal proceedings.
We disagree, and find the factual scenario in Luedtke clearly
distinguishable.
In
Luedtke,
informing
her
defendant's
that
he
would
upcoming custody hearing.
counsel
no
sent
longer
Id. at 210.
defendant
represent
a
letter
her
in
an
However, no copy of the
letter was sent to the court or opposing counsel, in violation
of Rule 5:3-5(d).
and
the
defendant
Id. at 211.
were
left
Thus, the court, opposing counsel,
"high
and
dry."
Id.
at
212.
Accordingly, we remanded the case for a new custody hearing.
Ibid.
Here, unlike Luedtke, plaintiff agreed to represent himself
approximately four weeks prior to the March 20, 2013 hearing.
Additionally,
as
the
trial
judge
noted,
"[t]here
have
been
multiple requests for postponement of this case in all aspects.
During the original proceeding for divorce, and subsequently,
this case has been scheduled and rescheduled on many occasions
at the request of [plaintiff]." Thus, plaintiff had a history of
delays. In fact, the plenary hearing had previously been adjourned
from December 6, 2012, to March 20, 2013, at plaintiff's request.
24
A-6042-12T4
It
is
also
important
to
note
that
rather
than
simply
denying the untimely adjournment request made on the date the
hearing
was
options.
set
to
start,
the
judge
offered
plaintiff
two
Plaintiff could either (1) reimburse defendant and her
expert for the fees and expenses incurred in appearing in court
that day, and thereby secure a one-month adjournment; or (2) the
hearing
would
begin
with
defendant
and
her
expert's
direct
testimony only so that counsel could represent plaintiff and
have time to prepare for cross-examination of those witnesses.
However, plaintiff rejected both these alternatives.
A trial court's decision to grant or deny an adjournment is
subject
to
an
abuse
of
discretion
standard.
Rocco
v.
N.J.
Transit Rail Operations, Inc., 330 N.J. Super. 320, 343 (App.
Div. 2000).
Absent an abuse of discretion, a trial court's
denial
request
of
a
reversible error.
for
an
adjournment
does
not
constitute
State v. D'Orsi, 113 N.J. Super. 527, 532
(App. Div.), certif. denied, 58 N.J. 335 (1971).
An appellate
court will not interfere with the trial court's denial of an
adjournment request "unless it appears that an injustice has
been done."
The
counsel
Rocco, supra, 330 N.J. Super. at 343-44.
trial
with
court
the
fairly
balanced
unnecessary
plaintiff's
expense
that
request
defendant
for
would
thereby incur were plaintiff's untimely adjournment application
25
A-6042-12T4
granted.
The
judge
proposed
plaintiff declined to accept.
an
equitable
solution,
which
We find no abuse of discretion.
Finally, plaintiff argues that the trial court abused its
discretion in calculating alimony and the $300 per month travel
stipend he receives from defendant.
He contends that because he
is unemployed, has health issues, and wishes to continue to be a
loving
and
caring
father,
these
amounts
are
inadequate
and
should be recalculated.
Alimony orders "may be revised and altered by the court
from
time
to
2A:34-23.
time
Support
as
circumstances
obligations,
may
require."
whether
in
a
N.J.S.A.
"consensual
agreement" or in a final judgment, can be modified to reflect
"changed
(1980).
circumstances."
A
trial
Lepis
judge's
v.
Lepis,
decision
to
83
modify
N.J.
139,
alimony
148
is
a
discretionary ruling that is not overturned on appeal "unless
the court abused its discretion, failed to consider controlling
legal
principles[,]
or
made
findings
unsupported by competent evidence."
inconsistent
with
or
Storey v. Storey, 373 N.J.
Super. 464, 479 (App. Div. 2004) (citing Tash v. Tash, 353 N.J.
Super. 94, 99 (App. Div. 2002)).
Appellate courts should be
mindful of the "wide discretion which our law rightly affords to
the trial judges who deal with these matters."
Donnelly v.
Donnelly, 405 N.J. Super. 117, 127-28 (App. Div. 2009).
26
A-6042-12T4
Here, the judge addressed defendant's severance package and
concluded
work
that
because
performed
distribution.
in
it
was
2012,
attributable
it
was
to
exempt
post-complaint
from
equitable
Nonetheless, recognizing this additional income,
along with the lower cost of living in Cleveland, the judge
increased the duration of plaintiff's alimony award from twentyseven to thirty months.
Such increase was within the "wide
discretion" of the trial court and is supported by substantial
credible evidence in the record.
Super. at 127-28.
See Donnelly, supra, 405 N.J.
The trial judge was well aware of plaintiff's
economic and health situations when he made his determination.
Other than defendant's relocation with the children, plaintiff
adduced
no
other
evidence
of
changed
financial
circumstances
since the entry of the DJOD that would warrant a recalculation
of support.
Additionally, plaintiff's bald assertion that he is
entitled
more
to
than
$300
per
month
in
travel
expenses
is
completely lacking in factual support.
To the extent that we have not specifically addressed any
of plaintiff's remaining arguments, we find them to be without
sufficient merit to warrant discussion.
R. 2:11-3(e)(1)(E).
Affirmed.
27
A-6042-12T4