M.E.G. VS. C.P. (FD-11-0839-19, MERCER COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 8, 2021
• Docket: A-2628-19
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2628-19

M.E.G.,

Plaintiff-Respondent,

v.

C.P.,

Defendant-Appellant. _________________________

Submitted May 3, 2021- Decided July 8, 2021

Before Judges Messano and Smith.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FD-11-0839-19.

Juliana E. Blackburn, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM After a plenary hearing, defendant appeals a joint custody order granting

plaintiff parent of primary residence status for their child, D.G. 1 We affirm for

the reasons set forth below.

I.

D.G was born on June 10, 2016 to the parties. After D.G.'s birth, the

parties planned to move to Florida for a fresh start and financial stability. On

November 13, 2017, the parties executed a relocation agreement which provided

for defendant and D.G. to relocate to Florida with plaintiff joining them later.

In December 2017, defendant and D.G. moved into defendant's mother's

house in Florida. D.G. had his own room, and defendant obtained health

insurance and a pediatrician for him. Plaintiff supported the child by sending

money. Defendant's mother and Plaintiff helped to pay for daycare. Initially,

defendant had a difficult time finding work in Florida, but eventually secured a

low-paying job. Between December 2017 and May 2018, plaintiff did not visit

defendant and D.G. in Florida and the parties' relationship began to deteriorate.

In May 2018, the parties separated, however, in the same month defendant

brought D.G. to New Jersey to live with plaintiff until she became financially

1 To protect the identity of the child, as well as the child's relationship to its parents, we use initials throughout this opinion. Rule 1:38-3(d)(13).

2 A-2628-19 stable. Once stable, defendant's intention was for her to come back to New

Jersey and get their child. After she returned to Florida, defendant maintained

contact with D.G. through phone and video phone calls. Eventually, defendant

found better employment, and when she visited D.G. in New Jersey, she took

the child back to Florida without plaintiff's consent. Plaintiff filed an order to

show cause seeking D.G.'s return. The trial court granted the relief and defendant

returned D.G. to New Jersey.

Defendant then filed a motion seeking to be named parent of primary

residence. After a hearing, the court granted plaintiff temporary residential

custody of D.G. Defendant then moved for modification of the temporary

residential custody order. She sought permission to return the child to Florida.

At the modification hearing, defendant testified she offered to provide

plaintiff food, clothing, and diapers and he responded with verbal abuse. She

further testified plaintiff did a poor job in nurturing a relationship between her

and the child and that plaintiff made mother-son communications difficult.

Plaintiff testified he was starting a moving company when defendant

brought him the child. He asserted raising D.G. while she was away hurt his

ability to run the business. He testified that defendant refused when he asked

3 A-2628-19 her to take D.G. back. Plaintiff testified that he shut down his business because

he could not take care of D.G. and continue to manage it.

Once it was clear to plaintiff that defendant was not returning for the child,

he enrolled D.G. in school and obtained health insurance. He began to involve

D.G. in social activities with his New Jersey relatives.

By November 2018, defendant found a well-paying job as an occupational

therapist, and she informed plaintiff she was ready to take their child back.

Plaintiff was reluctant to return D.G. but defendant continued to pursue efforts

to bring D.G. back to Florida.

In February 2019, defendant visited D.G.; plaintiff conditioned the visit

on her promise not to take D.G. back to Florida. Defendant agreed, but she felt

since she had the relocation agreement, it wouldn't matter if she took D.G. with

her back to Florida. On February 3, defendant took D.G. back to Florida without

telling plaintiff. She did not tell plaintiff because, among other reasons, she was

afraid that he would try to stop her.

The trial court found both parties testified credibly. The court found a

change in circumstances occurred when defendant asked plaintiff to take the

child while she looked for work in Florida. The court found these circumstances

changed during the course of the child's life and the parties' relationship. The

4 A-2628-19 court further found the original relocation agreement did not "carry much weight

anymore" and should not be enforced.

The court reviewed N.J.S.A. 9:2-4(c)'s fourteen factors. On the first

factor, the court found that the parties have an ability to communicate and

cooperate in matters relating the child, but there are also times they cannot do

so for themselves. On the second factor, the court found each parent willing to

accept custody, and that plaintiff was less than cooperative in providing

communication time for defendant. On the third factor, the court noted that

plaintiff made efforts to keep D.G. together with his half-brothers, for example,

taking D.G. and his two brothers to iPlay America, an amusement park. On the

fifth factor, the court found no "substantial history of domestic violence" and no

threat of physical abuse or threat to the safety of the child. On the sixth factor,

the court found D.G.'s preference did not apply because the child was not old

enough to have the capacity to form an intelligent decision. On the seventh

factor, the court found both parents can adequately care for D.G., including

handling D.G.'s ongoing dental issues. On the eighth factor, the court found that

both parents can provide a stable home environment. On the ninth factor, the

court found that both parents can provide for D.G.'s educational needs, noting

that plaintiff enrolled D.G. in pre-school in Princeton. On the eleventh factor,

5 A-2628-19 concerning geographical proximity, the court found that both parents are fit, but

noted the distance between Florida and New Jersey made coordinating parenting

time difficult. On the twelfth factor, the court found that both parents spent

quality time with D.G. prior to and after their separation. On the thirteenth

factor, the court found that the parties are serious about their employment

responsibilities. On the fourteenth factor, the court found that D.G. would be

able to better maintain relationships with his brothers if he remained in New

Jersey.

The court further found those relationships would be better maintained by

plaintiff. The court noted "some concerns" with defendant dropping D.G. off to

plaintiff in New Jersey while she looked for employment in Florida. The court,

after observing defendant testify, found she had a "less passionate" attitude

about D.G. On January 17, 2020, at the conclusion of the hearing, the court

found changed circumstances. The court ordered joint custody of the child; that

plaintiff be the parent of primary residence; and that defendant be the parent of

alternate residence, finding this arrangement to be in the child's best interests.

On appeal, defendant raises the following points:

POINT I THE TRIAL COURT ERRED IN ITS DECISION NOT TO ENFORCE THE PARTIES’ BINDING RELOCATION AGREEMENT

6 A-2628-19 POINT II THE TRIAL COURT ERRED IN NOT ENFORCING THE PARTIES’ BINDING RELOCATION AGREEMENT BECAUSE NO SUBSTANTIAL EVENT OR ACTION OCCURRED BETWEEN THE PARTIES CONSTITUTING CHANGE CIRCUMSTANCES

POINT III THE TRIAL COURT ERRED IN RELYING ON ONE OF FOURTEEN EQUALLY WEIGHTED BEST INTEREST FACTORS AS THE BASIS FOR ITS DECISION TO AWARD THE PLAINTIFF CUSTODY II.

Our review of a Family Part judge's fact finding is limited. N.J. Div. of

Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577 (App. Div. 2010)

(citing Cesare v. Cesare, 154 N.J. 394, 411 (1998)). "The general rule is that

findings by the trial court are binding on appeal when supported by adequate,

substantial, credible evidence. Deference is especially appropriate 'when the

evidence is largely testimonial and involves questions of credibility.'" A.J. v.

R.J., 461 N.J. Super. 173, 180 (App. Div. 2019) (quoting Cesare, 154 N.J. at

411-12). "We do 'not disturb the "factual findings and legal conclusions of the

trial judge unless . . . 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."'" Gnall v. Gnall, 222 N.J. 414, 428 (2015)

7 A-2628-19 (quoting Cesare, 154 N.J. at 412). However, we review legal determinations de

novo. See Slawinski v. Nicholas, 448 N.J. Super. 25, 32 (App. Div. 2016) (citing

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378

(1995)).

Defendant argues the trial court erred by refusing to enforce the parties'

binding relocation agreement. Defendant also argues the court's decision

violates the public policy of encouraging parents to work together without court

intervention. We disagree.

In "custody cases, it is well settled that the court's primary consideration

is the best interests of the children." Hand v. Hand, 391 N.J. Super. 102, 105

(App. Div. 2007) (citing Kinsella v. Kinsella, 150 N.J. 276, 317 (1997)); see

also Bisbing v. Bisbing, 230 N.J. 309, 322 (2017) (citing Beck v. Beck, 86 N.J.

480, 496 n.8 (1981)) ("A custody arrangement adopted by the trial court,

whether based on the parties' agreement or imposed by the court, is subject to

modification based on a showing of changed circumstances, with the court

determining custody in accordance with the best interests standard of N.J.S.A.

9:2-4."). "The court must focus on the 'safety, happiness, physical, mental and

moral welfare' of the children." Ibid. (quoting Fantony v. Fantony, 21 N.J. 525,

536 (1956)).

8 A-2628-19 N.J.S.A. 9:2-4(d) provides that courts must order custody arrangements

that both parents agree to unless it is not in the best interest of the child. N.J.S.A.

9:2-4(d). "Parties cannot by agreement relieve the court of its obligation to

safeguard the best interests of the child." P.T. v. M.S., 325 N.J. Super. 193, 215

(App. Div. 1999) (citing In re Baby M., 109 N.J. 396, 418 (1988)). "While

custody agreements should be taken into account by the court, a trial court must

determine whether the agreement is in the best interests of the children." Ibid.

(citing Wist v. Wist, 101 N.J. 509, 512-13 (1986)).

It is also well-settled that a party seeking modification of an existing

custody arrangement must demonstrate a change in circumstances. R.K. v. F.K.,

437 N.J. Super. 58, 62 (App. Div. 2014). To determine whether there are

changed circumstances, the court must consider the circumstances that existed

when the original custody order was entered. Sheehan v. Sheehan, 51 N.J.

Super. 276, 287-88 (App. Div. 1958). After considering those facts, the court

"may ascertain what motivated the original judgment and determine whether

there has been any change in circumstances . . . ." Id. at 288.

Defendant argues public policy encourages parties to enter agreements

without the involvement of the court, and the court runs afoul of this policy by

refusing to bind the parties to the agreement. We again disagree. The "courts'

9 A-2628-19 commitment to enforce such agreements is tempered by its equitable power to

review and modify support and custody orders upon a showing of changed

circumstances." Slawinski, 448 N.J. Super. at 32.

We find no merit in defendant's argument that both parents believed the

relocation agreement was in the best interests of D.G. at the time and that his

stay in New Jersey with plaintiff was not a changed circumstance. The trial

court considered the original motivations of the parties in making the agreement

and the circumstances that existed at the time they made it. Sheehan, 51 N.J.

Super. at 287-88. The parents were in a relationship. Defendant was to take

D.G. to Florida to live with her mother while she looked for work in that state,

with plaintiff to follow later. D.G. and his parents formed a family unit at that

time. By the time defendant left their child with plaintiff in May of 2018, the

parents had terminated the relationship. Our review of the record reveals no

"factual findings and legal conclusions" that "are so manifestly unsupported by

or inconsistent with the competent, relevant and reasonably credible evidence

as to offend the interests of justice." Gnall, 222 N.J. at 428 (quoting Cesare,

154 N.J. at 412).

Finally, defendant argues that if changed circumstances exist under these

facts, then the trial court erred in relying solely on factor three to support its best

10 A-2628-19 interest findings. Defendant further argues the trial court did not appropriately

weigh the other thirteen factors, "under which the deficiencies of [plaintiff's]

parental behavior and their detrimental impact on the child were clear."

When determining the custody, the court must consider the fourteen

factors in N.J.S.A. 9:2-4(c). 2 In custody cases, the court's focus is "to foster the

best interests of the child." R.K., 437 N.J. Super. at 62 (quoting Beck, 86 N.J.

at 497). Further, the court "must identify on the record the specific factors that

2 N.J.S.A. 9:2-4(c) provides fourteen factors a court must consider when awarding custody and states in part:

In making an award of custody, the court shall consider but not be limited to the following factors: the parents' ability to agree, communicate and cooperate in matters relating to the child; the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child's education; the fitness of the parents; the geographical proximity of the parents' homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents' employment responsibilities; and the age and number of the children.

11 A-2628-19 justify" the court's decision. J.G. v. J.H., 457 N.J. Super. 365, 374 (App. Div.

2019) (quoting Bisbing, 230 N.J. at 322). In addition to "consider[ing] all

relevant factors set forth in N.J.S.A. 9:2-4(c)," the court may supplement those

factors "by other factors as appropriate." Bisbing, 230 N.J. at 338.

We find the trial court considered evidence in the record in light of the

statutory factors. It did not rely on factor three to the exclusion of all others.

After finding changed circumstances, the court specifically addressed factors

one, four, five, seven, eight, nine, ten, eleven, twelve, and thirteen, making

neutral findings or concluding the factors did not apply. Examining the record

through factors three and fourteen, the court noted plaintiff's effort to build and

maintain a relationship between the D.G. and his brothers in New Jersey and

"keep the family together." The court found that D.G., three and one-half years

old, would be better able to maintain familial ties with his siblings if he remained

with his father in New Jersey. As to factor two, the trial court commented on

the obvious acrimony between the parties, and specifically found plaintiff

uncooperative in facilitating parenting time between defendant and her child.

The court was clear that factors three and fourteen were substantial factors in

reaching its custody and parenting time decision.

12 A-2628-19 The trial court supplemented its best interest analysis with findings on

other, non-statutory factors, including defendant's decision to leave the child

with plaintiff, and the length of time D.G. remained in New Jersey with plaintiff

while defendant searched for employment. Bisbing, 230 N.J. at 338.

"[A]s a general proposition, we should accord great deference to

discretionary decisions made by Family Part judges, provided they are supported

by adequate, substantial, and credible evidence in the record." D.A. v. R.C., 438

N.J. Super. 431, 451 (App. Div. 2014) (citation omitted). On this record, we

defer to the trial court's decision where the court evaluated the substantial and

credible evidence in the record in light of N.J.S.A. 9:2-4(c) and "other factors

as appropriate" in awarding joint custody to both parties and parent of primary

residence status to plaintiff. Bisbing, 230 N.J. at 338.

Affirmed.

13 A-2628-19