Cooper v. Cooper

• Decision Date: 14 November 1984
• Citation: Cooper v. Cooper, 99 N.J. 42, 491 A.2d 606 (N.J. 1984)
• Parties: Karen W. COOPER, Plaintiff-Appellant, v. Norton J. COOPER, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 42

99 N.J. 42

491 A.2d 606

Karen W. COOPER, Plaintiff-Appellant, v. Norton J. COOPER, Defendant-Respondent.

Supreme Court of New Jersey.

Argued April 3, 1984.

Decided Nov. 14, 1984.

Louise M. Samaroo (now Robchaud) Princeton, for plaintiff-appellant (Smith, Lambert, Hicks & Miller, Princeton, attorneys).

Lawrence E. Popp, Trenton, for defendant-respondent (McLaughlin & Cooper, Trenton, attorneys).

The opinion of the Court was delivered by

GARIBALDI, J.

This appeal concerns N.J.S.A. 9:2-2, which provides in pertinent part that the custodial parent shall not remove minor children from this jurisdiction "without the consent of both parents, unless the court, upon cause shown shall otherwise order." (emphasis added). Specifically, the issue is what constitutes an adequate showing of "cause" for a court to allow the custodial parent to remove the children from New Jersey over the noncustodial parent's objection.

I

The parties, Karen W. Cooper (Karen) and Norton J. Cooper (Norton), were married in 1970, separated in 1977, and divorced in 1980. Two children were born of their marriage, Toby Cooper, born December 8, 1974, and Robert James Cooper, born August 3, 1976. Karen was granted custody of the children. An agreement between the parties, incorporated in the divorce judgment, provides, "HUSBAND shall have reasonable visitation with said children" and "[i]n the event that she wishes to change her residence, she agrees to obtain the consent of HUSBAND or a court of competent jurisdiction to said move and to make arrangements to assure that HUSBAND has appropriate visitation of the children."

In accordance with the terms of the Settlement Agreement, Karen in 1982 filed a Notice of Motion for modification of the Final Judgment of Divorce, seeking the court's permission to remove the children from New Jersey and take them to the San Diego area of California. Norton cross-moved for an order enjoining Karen from removing the children from New Jersey. A hearing was held on Karen's motion as well as Norton's cross-motion.

The first reason Karen gave for her desire to move concerns her belief that since the children were prone to colds, ear infections, and other respiratory problems, southern California would be a healthier climate for the children than New Jersey. Although she presented no evidence that the boys suffer from any significant respiratory problems, she was convinced that California would provide a healthier environment. Karen also presented evidence that the quality of life for the children would be at least equal to and perhaps better than that offered in Princeton since their housing, schooling, and activities would be comparable, and possibly enhanced by an improved climate.

Both children indicated to the trial court that they have friends in the Princeton area and at school, but did not indicate any great enthusiasm for either, nor did they indicate a preference for Princeton over California. Both parents agreed that the children were doing well in school and were well adjusted. Norton agreed that Karen and her mother were doing a splendid job in raising the children. Karen's mother, who has resided with her for approximately four-and-one-half years, would continue to live with her and the children in California.

The second reason Karen gave for wanting to move concerns a business opportunity in California. Karen has been offered a job working for a distributor of Mountain Valley Spring Water. The job is based on a trial period. If Karen successfully completes the trial period, she will enter into a partnership with the present San Diego distributor. This partnership would eventually result in her own distributorship and a good income.

In her affidavit in support of her motion for modification of the Divorce Decree, Karen also claimed that she was dating a man in the La Jolla, California area who wished to marry her. However, she wanted to know him better to be certain that she wished to marry him. Despite the reliance on this point by our concurring colleague, this issue was not pursued by either party nor considered by either of the courts below as a factor to be weighed in determining whether Karen should be allowed to move to California with the children.

Karen is 45 years old, has a fine arts degree from the University of Iowa, and last worked outside the home in 1973. Karen had made minimal and unsuccessful efforts to find employment and business opportunities in the Princeton area. Given her lack of business skills and experience, Karen found the franchise business an attractive employment opportunity because she could pursue it indefinitely and it was a relatively simple enterprise for which she did not need any specialized skills except selling.

Further, Karen testified that the children's relationship with their father would not be adversely affected by the move but might be improved because the children would be available to visit him 128 days per year, which compared favorably with the current visitation schedule. Karen calculated these days from the children's summer, spring, and Christmas vacations, and argued that extended periods of visitation might be better for the children than the present pattern of weekend visitation.

Norton presented no evidence contradicting Karen's claims as to the quality of life in California and her business opportunity. Instead, Norton opposed Karen's motion on the grounds that her reasons for moving were frivolous and that his Philadelphia-based business would not permit him to spend enough time in San Diego to carry on his previously close relationship with his sons.

Norton is a highly mobile businessman. He is president and majority stockholder of a liquor company with annual sales of approximately $80 million. Although his company's home office is in Philadelphia, he lives in an apartment in New York City, and his residence for voting and for "tax purposes" is Florida, where he has a hotel room. His company car is registered in Pennsylvania and he has a Florida driver's license. He travels constantly from Monday through Friday all year round, but visits his children on most weekends. ¹ He travels to the west coast about three times a year, spending two or three days at a time there but not in the San Diego area.

Norton testified that he could not alter his business schedule, to make blocks of time available to accommodate his children, without making a significant financial sacrifice, adversely affecting the alimony and support that he would be able to pay Karen and the children. Finally, Norton claimed that he has a large, close-knit family in the Philadelphia area and that the boys benefit from contact with this family, especially their aunts and cousins.

The trial court ruled that Karen would be permitted to remove the children from Princeton, New Jersey to San Diego, California. The Appellate Division reversed the trial court and imposed the further restriction that Karen be prohibited from relocating or from removing the children beyond a 100-mile radius of New York City.

We granted Karen's petition for certification. 96 N.J. 294, 475 A.2d 588 (1984). We now reverse the judgment of the Appellate Division and remand to the trial court for a rehearing of the motion and a determination consistent with this opinion.

II

N.J.S.A. 9:2-2 provides that children of divorced parents should not be removed from this jurisdiction without the consent of the noncustodial parent "unless the court, upon cause shown, shall otherwise order." N.J.S.A. 9:2-2; ² see Helentjaris v. Sudano, 194 N.J.Super. 220, 476 A.2d 828 (App.Div.1984); Middlekauff v. Middlekauff, 161 N.J.Super. 84, 390 A.2d 1202 (App.Div.1978); D'Onofrio v. D'Onofrio, 144 N.J.Super. 200, 365 A.2d 27 (Ch.Div.), aff'd o.b., 144 N.J.Super. 352, 365 A.2d 716 (App.Div.1976).

The predecessor of the present statute was enacted in 1902 as part of general reform legislation dealing with the custody of children. ³ Although there is no specific legislative history concerning the purpose of the statute, the cases decided under the 1902 statute support the conclusion that its purpose was to preserve the right of visitation between the noncustodial parent and the child after the custody award. In Dixon v. Dixon, 72 N.J. Eq. 588, 56 A. 597 (Ch.1907), for example, the mother had been awarded custody of the children in New Jersey but the father had weekly visitation rights of which he regularly availed himself. The mother moved the children to Maine without securing court approval. The court held under the predecessor to N.J.S.A. 9:2-2 that:

It does not appear that it would be for the welfare of the children that he [the father] should not continue to see and interest himself in them. The strong presumption is that he should. I think the mother ought not to deprive the father of the opportunity of seeing them at short intervals, as she would do if she could keep them permanently in Maine. [Id. at 594, 56 A. 597]

Since it was unclear whether the mother had moved to Maine permanently, the court ordered a new hearing on that point. See also Francisco v. Francisco, 73 N.J.Eq. 313, 317, 67 A. 687 (Ch.1907) (recognizing father's right to visit his children in this state).

The statutory language affirms that the purpose of the statute is to preserve the rights of the noncustodial parent and the child to maintain and develop their familial relationship. This mutual right of the child and the noncustodial parent to develop and maintain their familial relationship is usually achieved by means of visitation between them. Because the removal of the child from the state may seriously affect the visitation rights of the noncustodial parent, the statute requires the custodial parent to show cause why the move should be permitted. Because the legislation and the cases are silent as to what kind of and how much cause must be shown, we must decide that issue today.

The courts of other states have...