Dever v. Howell

193 A.3d 869, 456 N.J. Super. 300
CourtNew Jersey Superior Court Appellate Division
DecidedSeptember 20, 2018
DocketDOCKET NO. A-0468-17T3
StatusPublished
Cited by15 cases

This text of 193 A.3d 869 (Dever v. Howell) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dever v. Howell, 193 A.3d 869, 456 N.J. Super. 300 (N.J. Ct. App. 2018).

Opinion

FASCIALE, J.A.D.

*302*871Plaintiff appeals from an August 15, 2017 order entered after a bench trial requiring that he return the parties' children to New Jersey from South Carolina. Judge James H. Pickering, Jr. conducted the trial, entered the order, and rendered a sixty-six page written decision. He concluded that plaintiff unlawfully removed the children from New Jersey without first complying with N.J.S.A. 9:2-2.

Plaintiff gave defendant less than one day's notice about the move, and although defendant objected, plaintiff moved to South Carolina without first obtaining an order permitting the relocation. Defendant filed an order to show cause (OTSC) seeking custody and the return of the children to New Jersey. The judge found plaintiff knew the statute required that he obtain an order permitting the removal before relocating to South Carolina, but he removed the children anyway, because he feared the court might grant defendant's pending motion for overnight visits with the children. After losing the trial, plaintiff sought reconsideration of the order under review, and for the first time, requested a best interests analysis.

*303We hold - because defendant had objected to the South Carolina move - that N.J.S.A. 9:2-2 required plaintiff to first obtain an order permitting the removal of the children from this jurisdiction before the actual relocation. The time for the judge to determine whether plaintiff had established "cause" for the removal of the children would have been before the relocation occurred. Requiring the judge to analyze whether "cause" existed after the relocation ignores the unambiguous plain text of the statute, plaintiff's ultimate burden of proof to demonstrate "cause" before the move occurs, and the important Legislative purpose for requiring a showing of cause - that is, to preserve the rights of a noncustodial parent to maintain and develop her familial relationship.

We therefore affirm. Our affirmance is without prejudice, however, to plaintiff seeking an appropriate order under N.J.S.A. 9:2-2 should he decide to do so.

I.

The parties were never married. They had two children together, born in 2007 and 2009. In approximately 2011, they agreed to joint physical custody of the children, and for eighteen months, they shared parenting time. In October 2013, plaintiff became the parent of primary residence. At all relevant times, they shared legal custody.

Initially, plaintiff developed an interest in relocating with the children to Florida. On May 1, 2015, the parties entered into a limited consent order (the May 2015 order) permitting plaintiff to relocate with the children from New Jersey to Florida. The May 2015 order - which mentioned Florida seven times and omits any reference to South Carolina - contemplated defendant's parenting time before and after the expected move to Florida. Plaintiff never relocated to Florida.

In November 2015, while the children remained in New Jersey, defendant filed a motion seeking overnight parenting time with the children. The motion had been initially returnable in February 2016, but the parties asked the judge to adjourn that *872date so they *304could negotiate. The judge carried the return date to March 2016, but plaintiff requested the judge relist argument for April 7, 2016.

While the motion was pending, at 8:37 p.m. on Sunday, April 3, 2016, plaintiff told defendant he and the children would be moving to South Carolina the next day, and he offered her ten minutes in the morning to say goodbye. Although defendant adamantly objected, plaintiff relocated with the children to South Carolina on the morning of April 4, 2016, without obtaining an order permitting the move.

On the April 7 return date, a motion judge (the motion judge) - not the judge who entered the order under review - conducted oral argument on defendant's motion for overnight parenting time. The motion judge learned for the first time that plaintiff had taken the children to South Carolina three days earlier, and informed plaintiff's counsel that the May 2015 order did not authorize the move to South Carolina. In response, plaintiff's counsel presented a proposed consent order, signed only by plaintiff, the purpose of which was to permit the move, albeit after the fact. Defendant repeated her strong objection and refused to sign the proposed order.

Also on the April 7 return date, the motion judge, as an interim measure to deal with the new information she had just learned, temporarily allowed the children to remain in South Carolina "until further order" of the court. As part of that order, she did not perform - nor was she asked to do so - a best interests analysis or otherwise determine, in accordance with N.J.S.A. 9:2-2, whether "cause" existed for plaintiff to remove the children from New Jersey. The motion judge made no findings of fact or conclusions of law as to plaintiff's decision to relocate to South Carolina. Importantly, the motion judge stated that she allowed the removal only on a temporary basis and that the relocation "procedurally may have been defective."

The children remained in South Carolina for approximately two months. In June, plaintiff and the children returned to New *305Jersey, but again on July 28, 2016 - without obtaining defendant's consent or a court order - plaintiff returned to South Carolina with the children. Defendant then retained counsel to petition the court for relief.

In September 2016, defendant filed her OTSC. With counsel's assistance, defendant requested the court do two things: (1) require plaintiff return the children to New Jersey, and (2) award her sole custody. By this time, she did not know where in South Carolina the children resided, or have any other basic information about the children.

On the initial return of the OTSC, the judge ordered electronic communication between defendant and the children. The judge confirmed plaintiff's address in South Carolina and established parenting time for defendant. The judge then tried the case on five days between February and May 2017. Thereafter, Judge Pickering made numerous findings of fact and conclusions of law as to the unlawful removal and defendant's request for custody.

As to the relocation, the judge concluded that plaintiff violated N.J.S.A. 9:2-2. The judge found plaintiff moved out of State without defendant's consent, knowing that the May 2015 order applied only to Florida. The judge found that the proposed order, the one only plaintiff signed and presented to the motion judge, added additional proof that plaintiff understood that the May 2015 order did not authorize the move to South Carolina. After assessing credibility issues, he found that plaintiff intentionally left New Jersey on April 4, *873knowing it was illegal. The judge entered a parenting plan, and then directed plaintiff to consult with defendant about all "issues to which [defendant] is entitled to have input [on] as a joint custodian," such as where in New Jersey the children would reside.

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Cite This Page — Counsel Stack

Bluebook (online)
193 A.3d 869, 456 N.J. Super. 300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dever-v-howell-njsuperctappdiv-2018.