STATE OF NEW JERSEY VS. ERIC GROETHING(3-15, HUDSON COUNTY AND STATEWIDE) ( 2017 )


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                          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-2353-15T2
    
    DANIELLE DELORENZO-TAGLIA,
    n/k/a DANIELLE FLORES,
    
            Plaintiff-Respondent,
    
    v.
    
    ERIC TAGLIA,
    
         Defendant-Appellant.
    __________________________
    
                  Submitted January 19, 2017 – Decided            April 28, 2017
    
                  Before Judges Simonelli and Gooden Brown.
    
                  On appeal from the Superior Court of New
                  Jersey, Chancery Division, Family Part, Bergen
                  County, Docket No. FM-02-0207-10.
    
                  Porro Law Group LLC, attorneys for appellant
                  (Janet L. Porro, Kristen M. Porro and Janet
                  S. Del Gaizo, on the brief).
    
                  Respondent has not filed a brief.
    
    PER CURIAM
    
            In this post-judgment matrimonial matter, defendant Eric
    
    Taglia appeals from the January 22, 2016 Family Part order, which
    
    permitted plaintiff Danielle DeLorenzo-Taglia to relocate with the
    
    parties' two children to Texas.            We affirm.
         We derive the following facts from the record.                  The parties
    
    have two daughters, A.T. and M.T.,1 who were ages thirteen and
    
    nine, respectively, when plaintiff sought to relocate.                  Pursuant
    
    to an April 8, 2010 consent order, which was incorporated into the
    
    parties' final judgment of divorce, the parties have joint legal
    
    custody of the children, with plaintiff as the parent of primary
    
    residence and defendant as the parent of alternate residence.                  The
    
    consent order also set defendant's parenting-time, as well as the
    
    parties' holiday, winter and spring recess, and summer vacation
    
    parenting    time.    The    consent         order    contemplated   plaintiff's
    
    relocation    to   Texas    with   the       children,    as   it   provided   for
    
    defendant's parenting time in that event.
    
         In June 2014, plaintiff sought the court's permission to
    
    relocate with the children to Texas.                 The court appointed Bergen
    
    Family Center (BFC) to conduct a diagnostic evaluation.                   At the
    
    time, defendant had parenting time on alternate weekends from
    
    Saturday at 10:00 a.m. to Sunday at 6:00 p.m., and Tuesdays from
    
    3:00 p.m. to 7:15 p.m.
    
         In his October 16, 2014 report, John Schmerler, Ph.D., from
    
    BFC, found that because plaintiff was the primary custodial parent,
    
    the factors in Baures v. Lewis, 
    167 N.J. 91
     (2001) governed the
    
    
    1   We use initials to identify the children to protect their
    privacy.
    
                                             2                                A-2353-15T2
    evaluation.    The doctor determined that plaintiff had a good faith
    
    reason for the move, as her new husband and his children resided
    
    in Texas and her husband's business was there.       The doctor also
    
    found that plaintiff had proposed contact extensive enough to
    
    sustain the children's relationship with defendant after the move,
    
    and the move was not inimical to the children's best interests,
    
    since   they   would   receive   educational,   health,   and   leisure
    
    opportunities in Texas comparable to what they were presently
    
    receiving.     The doctor also noted that other than leaving their
    
    father, the major contraindication for the move was the presence
    
    of an extended family on both sides in New Jersey, but this factor
    
    was somewhat mitigated by the degree to which the children had
    
    been incorporated into the new husband's large extended family.
    
    The doctor recommended that plaintiff be permitted to move to
    
    Texas with the children because the factors supporting such a move
    
    outweighed the contraindications.
    
         Defendant retained Ravinder Bhalla, M.D., who conducted a
    
    best interests evaluation and rendered a report on March 15, 2015.
    
    Dr. Bhalla did not consider the Baures criteria.           Rather, he
    
    conducted a best interests analysis, and opined it was in the
    
    children's best interests to remain in New Jersey with plaintiff.
    
         In his May 18, 2015 response to Dr. Bhalla's report, Dr.
    
    Schmerler agreed that under the best interests standard it was in
    
                                       3                            A-2353-15T2
    the children's best interests to remain in New Jersey; however,
    
    there were insufficient contraindications to prevent plaintiff
    
    from relocating with the children based on the Baures criteria.
    
    Drs. Schmerler's and Bhalla's reports were admitted into evidence,
    
    but not specifically mentioned by the court in its decision to
    
    permit plaintiff's relocation to Texas with the children.
    
           Plaintiff testified that in Texas, the children would be
    
    sharing a room in a property that she and her husband were renting,
    
    and she would be working in a day care center.             Justifying her
    
    relocation to Texas, plaintiff testified as follows:
    
                  I truly just wish to provide a semi-normal
                  life for my children.      I know that their
                  happiness matters and I believe that they will
                  be happy in a settled situation with a normal
                  two-parent home, whether that's a blended
                  family or not. And they are very happy with
                  the thought of having brothers and their step-
                  father.
    
                  They are close with their step-father.      He
                  taught [A.T.] how to tie her shoes and ride a
                  bicycle.   He has spent time teaching [M.T.]
                  how to play the guitar. They do have a special
                  bond. It's been seven years. I seek to have
                  a normal life with my children and my husband
                  and to move forward just as [defendant] has
                  done. That is the reason why.
    
           Defendant testified he had an extremely close relationship
    
    with    the     children   and   was       actively   involved   in     their
    
    extracurricular activities including dance, soccer, basketball,
    
    and girl scouts, as well as school events, concerts, back to school
    
                                           4                              A-2353-15T2
    nights, and projects, and he financially contributed to these
    
    expenses as necessary.     He briefly mentioned having done other
    
    activities with the children such as nature walks, roller skating,
    
    shopping, and going down to the shore.
    
         Defendant testified that in the past year, he had overnight
    
    parenting   time   approximately    thirty   times,   and    approximately
    
    sixty-five to seventy-five times in a single year in past years.
    
    Not counting overnights but simply seeing his children, he saw
    
    them 166 days in 2015; 181 days in 2014; 139 days in 2013; 129
    
    days in 2012; and 142 days in 2010.     Defendant also testified that
    
    in New Jersey, the children had the benefit of seeing members of
    
    their extended family, including cousins, grandparents, aunts, and
    
    uncles.   Defendant said he could not relocate to Texas because his
    
    family business and licenses are in New Jersey.          He testified as
    
    to the difficulty the parties had co-parenting their children,
    
    such as agreeing to parenting times or scheduling events or
    
    appointments   during   parenting    time.     His    main   concern   with
    
    relocating the children to Texas was losing touch with them, by
    
    virtue of the distance and plaintiff "poisoning" the children.2
    
    
    
    
    2 Regarding jurisdictional concerns, the parties consented to New
    Jersey retaining jurisdiction in the event the court permitted
    relocation.
    
                                        5                              A-2353-15T2
         Finding   that   the   plaintiff   was    the   children's   primary
    
    caretaker,   the   court    concluded   that   Baures   controlled,    not
    
    O'Connor v. O'Connor, 
    349 N.J. Super. 381
     (App. Div. 2002), which
    
    governs relocation in shared parenting situations.        The court then
    
    analyzed the Baures factors, and made the following findings:
    
              (1) The    reasons   given  for   the   move:
              [Plaintiff] desires to relocate to Texas with
              her new husband where his step-children live.
              Unlike in the past couple of years when this
              matter has come to the court before, we now
              have a secured living situation where a home
              has been rented with adequate room for all of
              the children. She has a job lined up. Based
              upon the testimony before this [c]ourt, that
              job is still available. So, she is remarried.
              They have a place to live.     She has a job
              lined up. Her husband is employed.
    
              (2) The reasons given for the opposition:
              [Defendant is] a good guy. He works hard. He
              loves his daughters.    He tries to make the
              best of a difficult situation where mother and
              father are not together anymore.     He spends
              time with his daughters. He makes sure that
              he has a nice home for his daughters when they
              come over.    He encourages and fosters his
              daughters' relationship with their mother
              despite the conflict between the parties.
              There's an extended family here, aunts,
              uncles, cousins.     There are valid reasons
              given for the opposition.
    
                   [T]here are significant, valid 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: There is a history of at
              least alleged domestic violence between the
    
                                        6                             A-2353-15T2
    parties notwithstanding the fact that any
    previous temporary restraining orders have
    been dismissed. There's a history of conflict
    between the parties, a lack of cooperation,
    agreement with respect to the children's
    health and welfare as in some ways respects
    the parents personal preferences because as I
    will continue to say and repeat despite the
    circumstances, they have two wonderful,
    intelligent, bright . . . children who appear
    to be thriving . . . . Mother had her reasons
    for leaving. Father has his valid reasons for
    them to stay.
    
    (4) Whether     the    child   will    receive
    educational, health and leisure opportunities
    at least equal to what is available here:
    There is not much in the parties' submissions
    with respect to information that the [c]ourt
    can for inference take judicial notice of with
    regard to the demographics between New Jersey
    and the area that [plaintiff] intends on
    moving to in Texas, but I give credibility to
    . . . plaintiff's position in this case
    certainly with a stable home life. The most
    important   factor   is   in  the   children's
    education which is the involvement with the
    parents and their encouragement.         I am
    satisfied that the children will receive
    educational, health and leisure opportunity at
    least equal to what is available to them here.
    
    (5) Any special needs or talents of the child
    that require accommodation and whether such
    accommodation or its equivalent is available
    in the new location: There is no particular
    special need that has been submitted by either
    of the parties. Thankfully, what we have here
    are two children that appear can absolutely
    thrive,   achieve   and  accomplish   in   any
    situation.
    
    (6) Whether a visitation and communication
    schedule can be developed that will allow then
    noncustodial parent to maintain a full and
    
                          7                          A-2353-15T2
                continuous relationship with the child: I give
                weight and credibility to . . . plaintiff's
                position that there will be additional time
                afforded to [defendant] if the [c]ourt permits
                the move. I am concerned about [defendant]'s
                stated reluctance to travel to Texas if I
                allow the move because of a past, . . . history
                of    alleged   threats    against    him    by
                [plaintiff]'s new husband. [Defendant] should
                be undeterred by that. If I allow the move
                nothing should deter him from spending time
                with his children. And if the [c]ourt allows
                the move, the [c]ourt will enter an order that
                requires [plaintiff] to bring the children to
                New Jersey, . . . the circumstances under
                which that will occur. And certainly if the
                move is allowed, that [defendant] is given
                financial consideration here, if he so
                chooses, when he wants to with reasonable
                notice should be allowed access to and contact
                with the children any time he wants.
    
                (7) The likelihood that the custodial parent
                will   continue   to  foster   the   child's
                relationship with the noncustodial parent if
                the move is allowed:3
    
                (8) The effect of the move on extended family
                relationships here and in the new location:
                With respect to the [e]ffect of the move on
                extended family and relationships here, I have
                heard testimony from [M.T.] in particular with
                regard to relationships with [defendant] and
                his family.   And of course I have extended
                family and I can see from the expressions on
                their faces, I can infer they're not just here
                as window dressing, they're here because they
                care about the children and they are
                supportive of [defendant].
    
                (9) If the child is of age, his or her
                preference:   We are dealing with a very
                bright, very vibrant 13-year-old young lady
    
    3   The judge made no separate findings on factor 7.
    
                                      8                           A-2353-15T2
    who is moving on with her teenage years and a
    9-year-old in the fourth grade.     I do give
    weight, I do give weight to their preferences.
    [M.T.] is somewhat more excited at the
    prospect of going to Texas. She is of course
    four years older than [A.T.], more mature. I
    have some added concern with [A.T.].     She's
    very attached to her father but at the same
    time, she also likes to visit with her step-
    brothers, had enjoyed going down to Texas. I
    think it's understandable that [M.T.] at her
    age might be more reluctant, might be more
    unsure, might be a little bit more nervous and
    certainly wonders about what it will be like
    being a substantial distance away from her
    father.
    
    (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:      We
    don't have to deal with that right now.
    There's going to come a point though, and I
    want to remind [defendant], your children are
    13 and 9 . . . . Any order of the [c]ourt
    here . . . [is] subject to modification after
    a period [of] time given changed circumstances
    and as the children grow older, their needs
    change, their preferences change.
    
    (11) Whether the noncustodial parent has the
    ability to relocate:     [Defendant] probably
    could if he wanted to, but that would simply
    devastate him both personally and financially
    and rip him apart from his extended family and
    the life that he has built here, the home that
    he has built for the children. Does he have
    the ability?     I believe that he has the
    financial ability to do so if he wanted to.
    
         This [c]ourt understands the reluctance.
    The [c]ourt understands what that would take.
    But with respect to a determination as to
    whether the non-custodial parent has the
    ability, I don't know if he has the ability
    
                          9                          A-2353-15T2
              to make the move. His business is here. Is
              he going to close up the business and his
              livelihood to move to Texas, that would be in
              the children's best interest? Next thing you
              know[, plaintiff] is going to be on him to pay
              more money in child support or for failing to
              pay. I'm not going to do that to him. So I'm
              not going to make a finding that he has the
              ability to make the move.     Certainly if he
              wanted to, well I encourage that.
    
              (12) Any other factor bearing on the child's
              interest: The decision of the [c]ourt today
              is not reflective of any personal feelings
              about this case. The[re] are these enumerated
              factors.    This case based upon the facts
              clearly falls within the standard under
              Baures, clearly, without question.
    
    The court concluded that plaintiff established a good faith reason
    
    for the move under Baures, and the move would not be inimical to
    
    the children's best interests.       The court entered an order on
    
    January 22, 2016, permitting plaintiff to relocate to Texas with
    
    the children, and setting defendant's parenting time schedule.
    
    This appeal followed.
    
         Our review of a trial judge's factual findings, following a
    
    non-jury trial, is limited.   Elrom v. Elrom, 
    439 N.J. Super. 424
    ,
    
    433 (App. Div. 2015).    "Generally, 'findings by the trial court
    
    are binding on appeal when supported by adequate, substantial,
    
    credible evidence.'"    Ibid. (quoting Cesare v. Cesare, 
    154 N.J. 394
    , 411-12 (1998)).    In matrimonial matters, this "[d]eference
    
    is especially appropriate when the evidence is largely testimonial
    
    
                                    10                         A-2353-15T2
    and involves questions of credibility."           Cesare, supra, 154 N.J.
    
    at 412 (citation omitted).         "Reversal is warranted only when a
    
    mistake must have been made because the trial court's factual
    
    findings are 'so manifestly unsupported by or inconsistent with
    
    the competent, relevant and reasonably credible evidence as to
    
    offend the interests of justice[.]'" Elrom, supra, 439 N.J. Super.
    
    at 433 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of
    
    Am., 
    65 N.J. 474
    , 484 (1974)).            "Consequently, when a reviewing
    
    court concludes there is satisfactory evidentiary support for the
    
    trial court's findings, 'its task is complete and it should not
    
    disturb the result[.]'"        Ibid. (quoting Beck v. Beck, 
    86 N.J. 480
    ,
    
    496 (1981)).    "Deference is appropriately accorded to factfinding;
    
    however, the trial judge's legal conclusions, and the application
    
    of those conclusions to the facts, are subject to our plenary
    
    review."    Ibid.    (quoting Reese v. Weis, 
    430 N.J. Super. 552
    , 568
    
    (App. Div. 2013)). "Finally, legal conclusions are always reviewed
    
    de novo."      Id. at 433-34 (citing Manalapan Realty, L.P. v. Twp.
    
    Comm. of Manalapan, 
    140 N.J. 366
    , 378 (1995)).
    
         Defendant first argues that plaintiff failed to show she had
    
    a good faith reason for relocating to Texas and that the children
    
    will nor suffer harm as a result of the move.           We disagree.
    
         "[T]he party seeking to move, who has had an opportunity to
    
    contemplate    the   issues,    should    initially   produce   evidence   to
    
                                         11                             A-2353-15T2
    establish prima facie that (1) there is a good faith reason for
    
    the move and (2) that the move will not be inimical to the child's
    
    interests."   Baures, supra, 167 N.J. at 118.             "[T]he burden of
    
    production rests initially on the movant to make out a prima facie
    
    showing on the good faith and harm to the child prongs[.]"           Morgan
    
    v. Morgan, 
    205 N.J. 50
    , 65 (2011) (citing ibid.).           Such a showing
    
    is established with evidence that, if unrebutted, would sustain a
    
    judgment in the proponent's favor.          As the Court has stated:
    
               The initial burden of the moving party is not
               a particularly onerous one. It will be met,
               for example, by a custodial parent who shows
               that he is seeking to move closer to a large
               extended family that can help him raise his
               child; that the child will have educational,
               health and leisure opportunities at least
               equal to that which is available here, and
               that he has thought out a visitation schedule
               that will allow the child to maintain his or
               her relationship with the noncustodial parent.
    
               [Baures, supra, 167 N.J. at 118.]
    
    "Should the moving party meet the burden of production, the
    
    noncustodial parent must then 'produce evidence opposing the move
    
    as either not in good faith or inimical to the child[ren]'s
    
    interest.'"   Morgan, supra, 205 N.J. at 66 (quoting Baures, supra,
    
    167 N.J. at 119).
    
         The   court    did   not   err    in   determining    that   plaintiff
    
    established a good faith reason to relocate with the children to
    
    Texas and that the move would not be inimical to the children's
    
                                          12                            A-2353-15T2
    interests.    Baures applies in this case, and the court's factual
    
    findings and conclusion that plaintiff met her burden of proof are
    
    amply supported by the record.       Cesare, supra, 154 N.J. at 412.
    
         Defendant next argues that even if plaintiff had a good faith
    
    reason to relocate, the Baures factors fall in his favor. However,
    
    except to restate those factors, defendant makes no cognizable
    
    argument about any error by the court or factual contradiction.
    
    In many instances, he makes conclusory statements and does not
    
    cite to the record.        Nevertheless, we are satisfied the court's
    
    Baures    analysis   was   sound,   and   the   Baures   factors   fell    in
    
    plaintiff's favor.
    
         Defendant next argues that the court should have applied the
    
    best interests of the child standard under O'Connor, and found
    
    that it is in the children's best interests to remain in New
    
    Jersey.    This argument is without merit.
    
         N.J.S.A. 9:2-2 provides as follows, in pertinent part:
    
                When the Superior Court has jurisdiction over
                the custody and maintenance of the minor
                children of parents divorced, separated or
                living separate, and such children are natives
                of this State, or have resided five years
                within its limits, they shall not be removed
                out of its jurisdiction against their own
                consent, if of suitable age to signify the
                same, nor while under that age without the
                consent of both parents, unless the court,
                upon cause shown, shall otherwise order.
    
    
    
                                        13                              A-2353-15T2
    Upon finding that this statute applies, the court must                    then
    
    determine 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 evidence shows that one parent
    
    serves as the primary caretaker, then Baures governs the custodial
    
    parent's request to relocate the children.           Ibid.
    
         "If, conversely, the situation is a rare de facto 'shared
    
    parenting'   arrangement,    one    in    which   each   parent   essentially
    
    performs an equal caretaking role, then the removal application
    
    must be analyzed under the stricter change-of-custody test of"
    
    O'Connor.    Id. at 122.    "The O'Connor standard hinges solely upon
    
    an analysis of the best interests of the children, regardless of
    
    the applicant's good faith motivation to relocate."               Ibid.    "In
    
    such instances, 'the 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.'"            Ibid. (alteration
    
    in original) (citing O'Connor, supra, 349 N.J. Super. at 398; Chen
    
    v. Heller, 
    334 N.J. Super. 361
    , 380-82 (App. Div. 2000)).
    
         As we have stated,
    
                [i]n determining the applicable standard to
                apply to plaintiff's removal application, the
                primary inquiry is whether the physical
                custodial relationship between plaintiff and
                defendant is one where plaintiff is the
    
                                         14                               A-2353-15T2
             "primary caretaker" and defendant is the
             "secondary caretaker," or, whether these
             parties truly share both legal and physical
             custody.
    
                  In discussing the criteria or factors to
             be used in determining that question, the
             Court stated:
    
                   Although both [primary caretaker
                   and   secondary   caretaker]   roles
                   create responsibility over children
                   of divorce, the primary caretaker
                   has   the   greater   physical   and
                   emotional role. Because the role of
                   "primary caretaker" can be filled by
                   men or women, the concept has gained
                   widespread acceptance in custody
                   determinations.
    
                         . . . .
    
                  Although "time" is a critical factor to
             consider in determining the presence of a
             joint physical custodial relationship, we
             emphasize the importance of analyzing the
             division of time in the context of each
             party's responsibility for the custodial
             functions,   responsibilities    and   duties
             normally reposed in the primary caretaker[.]
             [O'Connor, supra, 349 N.J. Super. at 398-400
             (quoting Pascale v. Pascale, 
    140 N.J. 583
    ,
             598-99 (1995)).]
    
        Here, plaintiff was the children's physical custodian and
    
    primary caretaker.       Defendant's overnight parenting time every
    
    other weekend and his involvement in the children's schooling and
    
    activities   did   not    establish    a   de   facto   shared   parenting
    
    arrangement warranting application of O'Connor.           Morgan, supra,
    
    205 N.J. at 67.
    
                                      15                               A-2353-15T2
         Lastly, defendant argues that we should remand this matter
    
    for findings of fact and conclusions of law consistent with
    
    N.J.S.A. 9:2-4, and direct the trial court to apply the best
    
    interests of the child standard as it would in any change of
    
    custody case.4      We decline to do so.
    
         N.J.S.A. 9:2-4 applies to an initial custody determination
    
    where the court must consider certain factors in making a custody
    
    award.     "A removal case is entirely different from an initial
    
    custody determination.       When initial custody is decided, either
    
    by judicial ruling or by settlement, the ultimate judgment is
    
    squarely dependent on what is in the child's best interests."
    
    Baures, supra, 167 N.J. at 115 (citation omitted).      In a removal
    
    case, the parents' interests take on importance, but the conflict
    
    in a removal case is not purely between the parents' needs and
    
    desires.    Ibid.    Rather, it is a conflict based on the extent to
    
    which the parents' needs and desires can be viewed as intertwined
    
    
    4  We decline to address defendant's additional arguments that
    plaintiff failed to show that she had re-married and had a place
    to live in Texas, and failed to produce competent, relevant
    evidence to prove where she and the children would actually live
    in Texas.    We also decline to address defendant's arguments
    relating to plaintiff's testimony. Defendant did not raise these
    arguments or object to plaintiff's testimony before the trial
    court, and these issues do not go to the court's jurisdiction or
    concern a matter of public importance. R. 2:5-4; Zaman v. Felton,
    
    219 N.J. 199
    , 226-27 (2014) (citation omitted). More importantly,
    defendant does not articulate any error by the court in assessing
    plaintiff's testimony or the evidence.
    
                                       16                        A-2353-15T2
    with the child's interests.    Ibid.   Differences between these two
    
    standards exist because the "pure best-interests standard" "would
    
    always, or nearly always, break in favor of keeping the child in
    
    proximity to two fit parents, thus chaining the custodial parent,
    
    who bears the laboring oar of child rearing, to New Jersey, while
    
    permitting the noncustodial parent free movement."    Morgan, supra,
    
    205 N.J. at 65.
    
         This is a removal case, not an initial or change in custody
    
    case.   Accordingly, N.J.S.A. 9:2-4 and the best interests of the
    
    child standard do not apply.   Baures applies, and plaintiff proved
    
    that she had a good faith reason for the move and the move would
    
    not be inimical to the children's best interests.
    
         Affirmed.
    
    
    
    
                                     17                          A-2353-15T2