Cerminara v. Cerminara

• Decision Date: 17 January 1996
• Citation: 669 A.2d 837,286 N.J.Super. 448
• Parties: Carmine CERMINARA, Plaintiff-Appellant, v. Teresa CERMINARA, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 448

286 N.J.Super. 448

669 A.2d 837

Carmine CERMINARA, Plaintiff-Appellant, v. Teresa CERMINARA, Defendant-Respondent.

Superior Court of New Jersey,

Appellate Division.

Argued Dec. 5, 1995.

Decided Jan. 17, 1996.

Laura M. Le Winn, Princeton, for appellant.

Ann R. Bartlett, Clinton, for respondent (Alexander & Bartlett, attorneys; Ms. Bartlett, of counsel and on the brief).

Before Judges MICHELS, BAIME and VILLANUEVA.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Plaintiff Carmine Cerminara appeals from portions of a dual judgment of divorce of the Chancery Division, Family Part, that permitted defendant Teresa Cerminara to relocate permanently to Virginia with the two minor children born of their marriage and directed him to pay defendant permanent alimony. ¹ More precisely, the provisions of the judgment challenged on this appeal are the following:

ORDERED and ADJUDGED that the following stipulations, having been entered into on the record by counsel for the parties, be and the same are hereby incorporated herein:

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D. Plaintiff shall pay to Defendant as and for permanent alimony the sum of $200. per month commencing when Defendant relocates to the Commonwealth of Virginia, the amount having been stipulated but not the permanency; and

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4. ORDERED and ADJUDGED that the Defendant shall be entitled to relocate the children of the parties and herself to the Commonwealth of Virginia as of August 1, 1995; and it is further

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6. ORDERED and ADJUDGED that the visitation set forth in J-1 (attached hereto) shall control for the period of time that the parties remain living in the State of New Jersey and the portion of J-1 addressing the circumstance of Defendant and the children living in the Commonwealth of Virginia shall be controlling after Defendant and the children relocate there, with the revisions set forth herein. After she was relocated to Virginia, Defendant shall provide all transportation for the weekends specified in J-1 and for vacation visitation with Plaintiff, except four times a year when the parties shall meet at a half-way point. Defendant shall give Plaintiff at least 14 days notice of those weekends that she chooses to meet Plaintiff at a half-way point. In addition to the visitation in J-1, Plaintiff shall have reasonable and liberal visitation in Virginia which is expected by this Court to occur monthly, it being the finding of this Court that it is in the best interests of the children of the parties for them to have visitation with the Plaintiff every two weeks.

Should Plaintiff acquire a residence at a mid-way point between the Somerville area and the place of Defendant's residence, Defendant shall transport the children to the mid-way point residence for Plaintiff's visitation when so requested by Plaintiff and otherwise Defendant shall provide transportation to New Jersey as per the above paragraph; and it is further

7. ORDERED and ADJUDGED that for the summer of 1995, Plaintiff shall have the children with him from the last day of school through July 16, 1995. The children shall then go back to Defendant for the period from July 17, 1995 through August 17, 1995. The children shall go back to the Plaintiff for the period of August 18, 1995 through August 27, 1995, at the end of which period Defendant shall pick them up to return to her residence; and it is further

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14. ORDERED and ADJUDGED that the nature of the alimony payable by Plaintiff to Defendant shall be permanent and it shall not be affected by Defendant's employment full-time as a teacher, a circumstance contemplated by the court. The alimony would be subject to modification, however, by Defendant's full-time employment as a certified public accountant or any other change in circumstance, or circumstance not anticipated by this Court in making this ruling, it being the finding of this Court that Defendant's earning capacity is lower than Plaintiff's earning capacity; ....

Plaintiff seeks a reversal of the foregoing portions of the judgment, contending that (1) the judgment permitting defendant to relocate permanently to Virginia with the two children is based on findings of fact not supported by substantial credible evidence in the record and on legal conclusions that are incompatible with established controlling precedent, and (2) the trial court erred in awarding defendant permanent alimony. We disagree and affirm.

We have carefully considered the record and all of the arguments presented and are satisfied that the portions of the dual divorce judgment challenged on this appeal are based on findings of fact which are adequately supported by the record. R. 2:11-3(e)(1)(A). Moreover, we are convinced the trial court did not mistakenly exercise its discretion in permitting defendant to relocate permanently to Virginia with the children born of the marriage and in awarding defendant permanent alimony; and that all issues of law raised are clearly without merit. R. 2:11-3(e)(1)(E).

I.

In general, the removal of children from this State by a custodial parent is governed by N.J.S.A. 9:2-2, which, in pertinent part, provides:

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 ... without the consent of both parents, unless the court, upon cause shown, shall otherwise order.

In Cooper v. Cooper, 99 N.J. 42, 491 A.2d 606 (1984), the Supreme Court clarified the standards to be followed in determining whether to permit the custodial parent to remove a child from the State of New Jersey. The Court held that in order "to establish sufficient cause for ... removal" when an application therefor is challenged, the custodial parent must make a threshold showing that "there is a real advantage to that parent in the move and that the move is not inimical to the best interests of the children." Id. at 56, 491 A.2d 606. Although frivolous reasons will not justify removal, the purported advantage need not be substantial. Rather, it need only be based "on a sincere and genuine desire of the custodial parent to move and a sensible good faith reason for the move." Ibid. As long as the move will not result in any detriment to the children, such as cutting them off from special medical or educational care, it will not be deemed inimical to their best interests. Moreover, whether the custodial parent has made this threshold showing is to be determined independent of visitation considerations.

If the custodial parent makes the requisite initial showing, then a court must take into account other factors in deciding the application for removal. "The first factor to be considered is the prospective advantages of the move in terms of its likely capacity for either maintaining or improving the general quality of life of both the custodial parent and the children." Id. at 56-57, 491 A.2d 606. Also instrumental to a court's decision are the bona fides of "the custodial parent's motives in seeking to move" and those of the noncustodial parent in objecting to the move. Id. at 57, 491 A.2d 606. Lastly, a court must consider, in light of the facts of each case, whether a "realistic and reasonable visitation schedule can be reached if the move is allowed." Ibid. Evidence of these factors may be used to rebut either the custodial parent's threshold showing or "the arguments of the noncustodial parent against removal." Ibid.

Providing additional guidance, the Court explained that "[a] realistic and reasonable visitation schedule is one that will provide an adequate basis for preserving and fostering a child's relationship with the noncustodial parent if the removal is allowed." Ibid. The Court cautioned against interfering with a pattern of weekend visitation because such visitation evidences the noncustodial parent's sincerity in maintaining a closeness with the child. However, the burden of establishing that an alternative visitation schedule is not feasible is upon the noncustodial parent, who has all the necessary proofs at his or her disposal. Id. at 57-58, 491 A.2d 606. "The more evidence there is that the noncustodial parent's visitation with the children will be adversely affected, the more of a showing of compelling reasons to move must be made by the custodial parent." Id. at 58, 491 A.2d 606. Proof of mere inconvenience is insufficient "to overcome [the] custodial parent's right to remove the children after he or she has met the threshold showing" that removal should be allowed. Ibid.

However, the Cooper standard was subsequently modified in Holder v. Polanski, 111 N.J. 344, 544 A.2d 852 (1988), by eliminating the requirement that the custodial parent show a real advantage to the move. Under the Holder test, "a custodial parent may move with the children of the marriage to another state as long as the move does not interfere with the best interests of the children or the visitation rights of the non-custodial parent." Id. at 349, 544 A.2d 852. All the custodial parent need establish is that he or she has a "good-faith reason" for making the move. Id. at 353, 544 A.2d 852. In short, absent "an adverse effect on the noncustodial parent's visitation rights or other aspects of a child's best interests, the custodial parent should enjoy the same freedom of movement as the noncustodial parent." Id. at 352, 544 A.2d 852. See Murnane v. Murnane, 229 N.J.Super. 520, 529, 552 A.2d 194 (App.Div.1989) (stating that "[t]he Holder Court modified the rule of Cooper by holding that 'any sincere, good faith reason will suffice, and that a custodial parent need not establish a "real advantage" from the move.' ").

With respect to this test, the Holder Court emphasized:

[P]roofs concerning the prospective advantages of the move, the integrity of the...