DANIEL L. VARGAS VS. MEGHAN M. STRNAD (FD-09-1613-19, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: September 9, 2020
• Docket: A-0604-19T4
• Status: Unpublished

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0604-19T4

DANIEL L. VARGAS,

Plaintiff-Appellant,

v.

MEGHAN M. STRNAD,

Defendant-Respondent, ________________________

Submitted August 25, 2020 – Decided September 9, 2020

Before Judges Alvarez and Gooden Brown.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FD-09-1613-19.

Franz Cobos, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

In this non-dissolution matter, plaintiff-father appeals from the

September 13, 2019 Family Part order entered following a plenary hearing, finding that he consented to defendant-mother relocating to Pennsylvania with

their then four-year-old son within the meaning of N.J.S.A. 9:2-2. We affirm.

We glean these facts from the record. The parties are unmarried and

have a son born December 6, 2014, while they were living together. After they

separated and ceased cohabitating, the parties agreed to a parenting schedule

whereby defendant had residential custody and would have their son "Monday

through Friday," and plaintiff "would have parenting time" on weekends "from

Friday afternoon until Sunday evening."

On May 20, 2019, plaintiff filed a complaint for residential custody on

the ground that defendant relocated to Pennsylvania with their son without his

consent. In support, plaintiff certified that the parties had resided together in

Bayonne, New Jersey, until July 2018, when defendant moved to South Jersey

with their son. In January 2019, plaintiff learned that defendant was relocating

to Pennsylvania with their son and her new husband. Plaintiff stated he "told

[defendant] that she did not have [his] consent" to relocate with their son, but

took no further action until the filing of his complaint.

Plaintiff continued that months later, on May 14, 2019, defendant was

"hysterical on the phone" and informed him that she and "her husband . . . had

been fighting for the last three days." Based on her words and her text

A-0604-19T4 2 messages, in which defendant purportedly admitted "to . . . ongoing domestic

violence with her husband," plaintiff inferred that defendant's husband was

"verbally and possibly physically abusive." In addition, defendant advised

plaintiff that because she had no food in the house, and was facing possible

"eviction" from being "three months late on her rent," she planned "to now

relocate to Virginia with [their son]." Plaintiff explained that he was now

seeking a change in residential custody because of defendant's "ongoing

domestic violence, homelessness, and . . . transient living conditions."

The parties appeared on June 19, 2019, at which point defendant, who

was representing herself, advised the judge that she intended to file a

relocation application. 1 The judge granted plaintiff residential custody,

pending the submission of defendant's application to relocate with their son to

Pennsylvania. After the relocation application was filed, the judge scheduled a

plenary hearing which was conducted on September 13, 2019.

At the hearing, defendant testified that in January 2019, before she

relocated to Pennsylvania with their son, she called plaintiff and requested an

"in[-]person" meeting. At the meeting, she told plaintiff that she and her new

husband "found . . . property [they] were lease/purchasing" in Pennsylvania.

1 Defendant did not file a responding brief in this appeal.

A-0604-19T4 3 According to defendant, plaintiff responded, "I don't like it, but there's nothing

I can do. Congratulations."

Initially, defendant testified that the in-person meeting occurred at "a

Dunkin' Donuts off of Exit 12 on Route 80" in "the Blairstown area" where

they conducted their parenting time exchanges. However, on cross-

examination, defendant acknowledged she was mistaken. Defendant testified

that because she was living in Ocean County in Barnegat at the time, and

plaintiff was living in Bayonne, the in-person meeting "was, most likely, . . .

either in Bayonne or down in Barnegat," but she could not "recall which

location." Regarding plaintiff's consent, defendant also acknowledged on

cross-examination that "to be very technical[,] the word 'yes' did not leave

[plaintiff's] mouth." However, "he also never said no."

Defendant testified that after the meeting, she moved around "the end of

January" and they "continued [their] normal parenting [time] schedule."

Defendant stated "there was no issue" until Friday, May 17, 2019, when she

"brought [their son] to Bayonne for his regular visit with [plaintiff]." She

explained that two days later, on Sunday, when she went to the "[e]mergency

[r]oom" with "food poisoning," plaintiff agreed that "[their son] could stay

A-0604-19T4 4 [with him] until Monday." However, on Monday, "[plaintiff] told [her] that he

was not giving [her their son] back until [they] came to court."

Defendant believed plaintiff filed the application because "just after

Mother's Day," she and her husband had "gotten into an argument" over "bills"

and "finances." Because she "didn't want [her] children in the house while

[they] were arguing," she had asked plaintiff to pick up their son, as well as

her older nine-year-old son from a different relationship. Defendant

vehemently denied that the argument with her husband "was a domestic

violence incident." She explained that she had been "through [her] share of

very abusive relationships," including her relationship with plaintiff, and, as a

result, "tend[ed] to get very upset" whenever "there's yelling involved."

Defendant testified that although she and her husband resolved their

differences, during her conversation with plaintiff, she indicated that she

would have to move to Virginia where her mother lived if things did not work

out with her husband. Defendant said plaintiff was afraid that she was going

to run away to Virginia with their son and he would never see him again.

Additionally, plaintiff was concerned that her "husband was doing something

wrong to [her] or the children." However, defendant produced a letter from

A-0604-19T4 5 the Division of Child Protection and Permanency essentially indicating that

their investigation resulted in no adverse findings.

In contrast, plaintiff testified that on January 17, 2019, defendant

notified him about her move to Pennsylvania during "a ten-minute long

[telephone] conversation" that occurred "while [he] was at work." Pl aintiff

testified that "[he] was fine with wherever she wanted to go" but he did not

consent to their son relocating to Pennsylvania. During his testimony, plaintiff

produced a recording of a May 14, 2019 telephone conversation between

himself and defendant, 2 during which he expressed concern about returning

their son to defendant because he "heard [defendant and her husband] yelling

at each other." During the conversation, defendant acknowledged that she and

her husband were "arguing" but insisted that their son would be "fine" in her

home.

Plaintiff also produced the text message exchange between himself and

defendant that he had submitted with his moving papers, 3 to show that the

verbal dispute in defendant's home had been ongoing for at least three d ays.

Although plaintiff acknowledged that because of his work schedule, his

2 The recording was played in court and admitted into evidence. 3 The text message exchange was also admitted into evidence. A-0604-19T4 6 girlfriend had to assist him in caring for his son, given the "[d]omestic

disturbances at [defendant's] home," plaintiff believed that his son residing

with him was "in his [son's] best interests."

Following the hearing, the judge credited defendant's testimony over

plaintiff's, and made the following factual findings:

At the time of the operative incidents here [the parties' son] was living with [defendant], first in Barnegat, and then in Pennsylvania . . . .

[Defendant] testified that she discussed the relocation with [plaintiff]. That was more than the [ten]-minute phone call that [plaintiff] described. . . . [Defendant's] testimony did change from first saying [the meeting] was [at] a Dunkin' Donuts on [R]oute 80 and then when she realized that she was living in Barnegat at the time she said it took place somewhere else, either in Barnegat or in Bayonne, she didn't remember where. But she continued to testify that [plaintiff's] response was to say he didn't like it, but good luck.

It is undisputed that then for the next four months [plaintiff] knew that [defendant] and [their son] were living in [Pennsylvania]. That he and [defendant] had worked out an arrangement whereby on Fridays [plaintiff] or his girlfriend would pick [his son] up at . . . the Dunkin' Donuts on Route 80 and return him there on Sunday. That continued until the incident in May.

The recording . . . . did have the audio of a rather heated argument between [defendant] and her husband. [Defendant], to her credit, did not want to

A-0604-19T4 7 expose [their son] to that, and asked [plaintiff] to come and pick him up and take him with him for a while. [Plaintiff] then used that as a pretext to file this complaint seeking to have custody handed to him on the grounds that [defendant] moved him out-of-state without his consent.

The judge then recited the provisions of N.J.S.A. 9:2-2, governing

parents' removal of children from New Jersey, and prescribing that children of

separated parents "shall not be removed" from the State while under the age of

consent "without the consent of both parents, unless the court, upon cause

shown, shall otherwise order." The judge continued that here,

[a]lthough [plaintiff] may not ever have said yes, [he] certainly acquiesced in [defendant's] moving to Pennsylvania with [their son]. [He e]ntered into an arrangement with her for visitation on weekends which, again, is undisputed. And, apparently, there were no incidents until the one in May where [defendant] and her husband got into the argument.

Based on his factual findings, the judge concluded that plaintiff

"consented within the meaning of [N.J.S.A. 9:2-2]" to defendant relocating

with their son to Pennsylvania. Thus, according to the judge, "[t]he analysis

required under [Bisbing v. Bisbing, 230 N.J. 309 (2017) 4 was] of no moment

4 See Bisbing, 230 N.J. at 338 (holding that in the absence of parental consent, modifications of custody based on permanent relocation is "governed by N.J.S.A. 9:2-2," requiring plaintiff to "demonstrate that there is 'cause' for an order authorizing such relocation" and evaluating "cause" based on "a best A-0604-19T4 8 here," since, under the statute, that only "applie[d] . . . if the parents do not

consent." The judge also found that plaintiff "has not shown that there is any

basis for removing custody from [defendant]." Accordingly, the judge entered

an order granting the parties joint legal custody, defendant residential custody,

and providing that visitation would continue under the parties' previously

agreed upon plan. This appeal followed.

On appeal, plaintiff argues the judge erred in finding that he "consented

to the child's relocation to Pennsylvania despite [his] denial of such consent

and [defendant's] inconsistent testimony of such consent." According to

plaintiff, because the judge's decision "was not supported by the record, . . . .

[defendant] should be required to show cause for her relocation to

Pennsylvania." We disagree.

"The scope of our review of the trial judge's findings of fact is limited."

Dever v. Howell, 456 N.J. Super. 300, 309 (App. Div. 2018) (citing Cesare v.

Cesare, 154 N.J. 394, 411 (1998)). "We will not reverse if on appeal the

record supports the judge's factual findings by adequate, substantial, and

credible evidence." Ibid. (citing Cesare, 154 N.J. at 411-12). "Deference is

especially appropriate 'when the evidence is largely testimonial and involves

interests analysis in which the court will consider all relevant factors set forth in N.J.S.A. 9:2-4(c), supplemented by other factors as appropriate."). A-0604-19T4 9 questions of credibility.'" Cesare, 154 N.J. at 412 (quoting In re Return of

Weapons to J.W.D., 149 N.J. 108, 117 (1997)).

Indeed, "[b]ecause a trial court hears the case, sees and observes the

witnesses, [and] hears them testify, it has a better perspective than a reviewing

court in evaluating the veracity of witnesses." Ibid. (alterations in original)

(citations and quotation marks omitted). Moreover, "[b]ecause of the family

courts' special jurisdiction and expertise in family matters, appellate courts

should accord deference to [the judge's] fact[-]finding." Cesare, 154 N.J. at

413.

"Although we defer to the judge's findings of fact when supported by

sufficient evidence, we owe no deference to the judge's decision on an issue of

law or the legal consequences that flow from established facts." Dever, 456

N.J. Super. at 309 (citing Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995)). Nonetheless, "an appellate court

should not disturb the 'factual findings and legal conclusions of the trial judge

unless [it is] 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.'" Cesare, 154 N.J. at 412 (quoting Rova

Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)).

A-0604-19T4 10 Guided by these deferential principles and our review of the record,

notwithstanding plaintiff's arguments to the contrary, we have no reason to

disturb the judge's findings of fact or conclusions of law. The judge's factual

findings are supported by adequate, substantial, and credible evidence in the

record, and his legal conclusions are sound.

Affirmed.

A-0604-19T4 11