MICHAEL MCHUGH VS. HEATHER MURPHY(FD-16-1923-09, PASSAIC COUNTY AND STATEWIDE) ( 2017 )


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  •                         NOT FOR PUBLICATION WITHOUT THE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-4981-15T3
    
    MICHAEL MCHUGH,
    
            Plaintiff-Respondent,
    
    v.
    
    HEATHER MURPHY,
    
         Defendant-Appellant.
    ______________________________
    
                  Submitted May 3, 2017 – Decided July 14, 2017
    
                  Before Judges Manahan and Lisa.
    
                  On appeal from Superior Court of New Jersey,
                  Chancery Division, Family Part, Passaic
                  County, Docket No. FD-16-1923-09.
    
                  Cores & Associates, L.L.C., attorneys for
                  appellant (Amy Sara Cores, on the briefs).
    
                  Weinberger Law Group, L.L.C., attorneys for
                  respondent (Jessica Ragno Sprague, on the
                  brief).
    
    PER CURIAM
    
            Defendant Heather Murphy appeals from a June 14, 2016 custody
    
    modification order allowing plaintiff Michael McHugh to relocate
    
    to the State of Florida with the parties' minor child.                 We affirm.
           By way of background, the parties had a dating relationship
    
    that began in 2005.        A child was born in 2007.    At the time of the
    
    birth,     the   parties     were   living   with   plaintiff's    parents.
    
    Eventually, the relationship deteriorated, and on August 26, 2009,
    
    the parties entered into a consent order to share joint legal and
    
    physical custody of the child.         Pursuant to the order, the child
    
    would stay with defendant three nights a week, and with plaintiff
    
    the other four nights.
    
           Initially, plaintiff and defendant agreed that they, together
    
    with the child and paternal grandparents, would move to Florida.
    
    After defendant became involved in a romantic relationship, she
    
    changed her position regarding the relocation plan and objected
    
    to the child's removal to Florida.
    
           Given defendant's objection, plaintiff moved for removal of
    
    the parties' child.        In response, defendant filed opposition and
    
    a cross-motion.     Plaintiff then filed a reply certification.
    
           A plenary hearing was held over six non-contiguous days.           The
    
    hearing included the testimony of the parties, two experts, and
    
    both     paternal   grandparents.         Both   plaintiff   and   defendant
    
    testified relative to the nature of the custodial relationship.
    
    While plaintiff contended he was the parent of primary residence,
    
    defendant countered that the parties had a residential custody
    
    arrangement where each parent shared equally in parenting time and
    
                                          2                              A-4981-15T3
    parenting decisions.         Finding both parties credible, the judge
    
    determined that both parties assumed parental responsibilities and
    
    shared quality time with their child.               Accordingly, the judge
    
    found the parties' parenting arrangement to be a "true shared"
    
    custodial relationship.        As such, the applicable standard was the
    
    best interests of the child.
    
           Plaintiff's expert psychologist, Dr. Lee Monday, opined that
    
    the parties did not share a true joint parenting relationship,
    
    that plaintiff was the parent of primary residence, and that the
    
    child would not suffer from the relocation.            The court appointed
    
    expert psychologist, Dr. Erik Dranoff, testified that it would be
    
    in the child's best interest to remain in New Jersey and continue
    
    the    joint    custodial      residential     relationship.           Dranoff
    
    acknowledged however that his opinion would have differed had he
    
    been aware that defendant initially agreed to the relocation, and
    
    that   the    child    was   advised   that   the   family,   including     the
    
    grandparents, were moving to Florida.
    
           Both   Monday   and   Dranoff   testified    that   plaintiff    had    a
    
    stronger bond with the child, but the child would benefit from
    
    continued contact with both parents on a regular basis.           They also
    
    testified that the child had a close relationship with his paternal
    
    grandparents.
    
    
    
                                           3                               A-4981-15T3
         The   paternal   grandparents       each   testified   regarding   the
    
    family’s plan to move to Florida.         Plaintiff's father noted that
    
    he altered his original retirement plan to relocate to North
    
    Carolina after being advised by plaintiff and defendant that they
    
    were interested in moving to Florida.
    
         At the conclusion of the hearing, the judge issued an oral
    
    decision granting custody to plaintiff, which was memorialized in
    
    an accompanying order.    The judge denied defendant's motion for a
    
    stay pending appeal.     Defendant filed a notice of appeal.            Upon
    
    motion, we denied defendant's request for a stay.1
    
         Defendant raises the following arguments on appeal:
    
                                   POINT I
    
               THE TRIAL COURT FAILED TO GIVE APPROPRIATE
               WEIGHT TO THE COURT APPOINTED EXPERT'S OPINION
               REGARDING THE BEST INTEREST OF THE CHILD AND
               INAPPROPRIATELY   HELD   THAT   THE   EXPERT'S
               OPINIONS WERE PREDICATED ON INACCURATE FACT
               FINDING.
    
                                  POINT II
    
               THE TRIAL COURT ERRED AS A MATTER OF LAW IN
               FAILING TO MAKE A FINDING THAT PRIMARY CUSTODY
               OF THE PARTIES' CHILD SHOULD BE PLACED WITH
    
    
    1
      During the pendency of the appeal, plaintiff filed a motion to
    strike defendant's appendix for failure to comply with the court
    rules and a motion to require defendant to "submit an appendix in
    compliance with the court rules" and to require defendant "to
    remove any reference to the impermissible appendix portions within
    her brief." We reserved decision. (Motion No. M-3353-16).
    
    
                                         4                             A-4981-15T3
                THE DEFENDANT-MOTHER OR THAT PHYSICAL CUSTODY
                SHOULD REMAIN EQUAL.
    
                                   POINT III
    
                THE TRIAL COURT FAILED TO PROPERLY APPLY THE
                STANDARD SET FORTH IN O'CONNOR2 AND MORGAN3 AND
                BASE RELOCATION ON THE BEST INTEREST OF THE
                CHILD.
    
                                    POINT IV
    
                THE TRIAL COURT MISAPPLIED ITS DISCRETION BY
                ALLOWING THE MOVE TO PROCEED UNDER THE BAURES4
                STANDARD, WHERE THE COURT FOUND THAT THE
                PLAINTIFF AND HIS FAMILY WERE HOSTILE TO THE
                DEFENDANT AND THERE WAS EXPERT TESTIMONY THAT
                IT WAS NOT IN THE CHILD'S BEST INTEREST TO
                MOVE BASED ON THE CONCLUSION THAT THE
                PLAINTIFF-FATHER WOULD ALIENATE CHILD.
    
                                    POINT V
    
                THE TRIAL COURT FAILED TO SET FORTH IN ITS
                ORDER FULLY AND SPECIFICALLY ALL TERMS AND
                CONDITIONS RELATING TO THE AWARD OF CUSTODY
                AND PROPER SUPPORT FOR THE CHILD IN VIOLATION
                OF RULE 5:8-5(B). (NOT RAISED BELOW)
    
           We have considered these arguments in light of the record and
    
    applicable legal standards.           We affirm substantially for the
    
    reasons    articulated   by   Judge       Justine   A.   Niccollai   in   her
    
    comprehensive and thoughtful oral opinion.                We add only the
    
    following.
    
    
    
    
    2
        O'Connor v. O'Connor, 
    349 N.J. Super. 381
     (App. Div. 2002).
    3
        Morgan v. Morgan, 
    205 N.J. 50
     (2011).
    4
        Baures v. Lewis, 
    167 N.J. 91
     (2001).
    
                                          5                              A-4981-15T3
           "The scope of appellate review of a trial court's fact-finding
    
    function is limited.        The general rule is that findings by the
    
    trial court are binding on appeal when supported by adequate,
    
    substantial, credible evidence."           Cesare v. Cesare, 
    154 N.J. 394
    ,
    
    411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins.
    
    Co. of Am., 
    65 N.J. 474
    , 484 (1974)).             Deference is particularly
    
    appropriate with respect to credibility determinations based on
    
    witness testimony, since the court had the ability to see and hear
    
    the witnesses, and with respect to family court fact-finding, due
    
    to "the family courts' special jurisdiction and expertise in family
    
    matters."     Id. at 412-13.      "Consequently, we 'should 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' or . . .
    
    determine the court has palpably abused its discretion."               Parish
    
    v. Parish, 
    412 N.J. Super. 39
    , 47 (App. Div. 2010) (quoting Cesare,
    
    supra, 154 N.J. at 412).
    
           Preliminarily, the judge found, based on the parents' equal
    
    assumption of parental responsibilities, that the application was
    
    one for custody modification as opposed to one for removal.
    
    Morgan, supra, 205 N.J. at 64.             In reaching this determination,
    
    the   judge   thoroughly    analyzed       the   parenting   arrangement   and
    
                                           6                              A-4981-15T3
    assessed the involvement of each parent.              We are satisfied that
    
    the judge’s finding that the parties shared jointly both legal and
    
    physical custody of their child was supported by substantial,
    
    credible   evidence   in   the   record.        As    such,   notwithstanding
    
    plaintiff's removal application, the judge was required to apply
    
    the standard employed for determining a change in custody.                    Id.
    
    at 65.
    
         "[T]he   party   seeking    the   change    in    the    joint    custodial
    
    relationship must demonstrate that the best interests of the child
    
    would be better served by residential custody being primarily
    
    vested with the relocation parent."         O'Connor, supra, 349 N.J.
    
    Super. at 385.   "The touchstone for all custody determinations has
    
    always been 'the best interest[s] of the child.'"                     Faucett v.
    
    Vasquez, 
    411 N.J. Super. 108
    , 118 (App. Div. 2009) (quoting
    
    Kinsella v. Kinsella, 
    150 N.J. 276
    , 317 (1997), certif. denied,
    
    
    203 N.J. 435
     (2010)).      "Custody issues are resolved using a best
    
    interests analysis that gives weight to the factors set forth in
    
    N.J.S.A. 9:2-4(c)."    Hand v. Hand, 
    391 N.J. Super. 102
    , 105 (App.
    
    Div. 2007).   The statute requires that
    
               [i]n 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
    
                                           7                                 A-4981-15T3
              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.
    
              [N.J.S.A. 9:2-4(c).]
    
         When "the parents cannot agree to a custody arrangement, the
    
    court may require each parent to submit a custody plan which the
    
    court shall consider in awarding custody."      N.J.S.A. 9:2-4(e).
    
    Lastly, when making "any custody arrangement not agreed to by both
    
    parents," the "court shall specifically place on the record the
    
    factors which justify" its order.    N.J.S.A. 9:2-4(f).
    
         "[T]he decision concerning the type of custody arrangement
    
    [is left] to the sound discretion of the trial court[.]"    Nufrio
    
    v. Nufrio, 
    341 N.J. Super. 548
    , 555 (App. Div. 2001) (second and
    
    third alteration in original) (quoting Pascale v. Pascale, 
    140 N.J. 583
    , 611 (1995)).   Therefore, on appeal "the opinion of the
    
    trial judge in child custody matters is given great weight[.]"
    
    
                                     8                         A-4981-15T3
    Terry   v.    Terry,    270    N.J.   Super.   105,    118   (App.    Div.     1994)
    
    (citations omitted).
    
         Initially, the judge found plaintiff's decision to move to
    
    Florida      constituted      a   substantial       change   in    circumstances
    
    warranting modification as "the parties will be unable to continue
    
    with the true shared parenting arrangement."                 In arriving at the
    
    custodial determination, the judge then analyzed the relevant
    
    statutory factors.5        Pursuant to that analysis, the judge focused
    
    on the "quality, not necessarily the quantity of factors" weighing
    
    in favor of each party.
    
         Relying     upon    the      testimony    of   the   experts,    the      judge
    
    determined that plaintiff had a stronger bond with the child.
    
    Notwithstanding, the judge recognized the child would benefit from
    
    continued contact with both parents on a regular basis.                       Though
    
    noting the limited weight afforded to this factor, the judge also
    
    considered the child's desire to move to Florida.                 In reaching her
    
    decision, the judge found significant to her determination the
    
    issues with school tardiness and absenteeism during defendant's
    
    
    
    5
      Although the judge acknowledged it was unnecessary to address
    the Baures factors, the judge found that in application of those
    factors, removal of the child to Florida would be appropriate.
    The Baures standard is only applicable in instances where the
    relocating parent is the parent of primary residence.        See
    O'Connor, supra, 349 N.J. Super. at 398.
    
    
                                             9                                   A-4981-15T3
    parenting time. The judge also found the testimony of both parties
    
    credible that, when involving the issue of education, the child
    
    was responsive to plaintiff's parenting techniques.
    
         In sum, having considered the record as well as the weight
    
    we afford to custodial decisions made by Family Part judges, we
    
    discern no basis to disturb the decision to modify custody and to
    
    permit the relocation of plaintiff with the parties’ child to
    
    Florida.
    
         We next address plaintiff's motion.    Defendant acknowledges
    
    that the disputed items in her appendix were not part of the trial
    
    record.    We ordinarily do not consider evidentiary material not
    
    part of "the record developed before the trial court."    Davis v.
    
    Devereux Found., 
    209 N.J. 269
    , 296 n.8 (2012); see R. 2:5-4(a).
    
    As such, finding no basis to deviate from the ordinary scope of
    
    our review, we grant plaintiff’s motion to strike those items from
    
    the appendix.    Consistent therewith, we have not considered those
    
    items in reaching our decision on the merits.
    
         Finally, to the extent not specifically addressed herein, we
    
    conclude defendant's remaining arguments lack sufficient merit to
    
    warrant discussion in a written opinion.    R. 2:11-3(e)(1)(E).
    
         Affirmed.
    
    
    
    
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