Levine v. Bacon

• Decision Date: 06 February 1997
• Citation: 687 A.2d 1057,297 N.J.Super. 224
• Parties: Andrew LEVINE, Plaintiff-Appellant, v. Rosemary Levine BACON, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 224

297 N.J.Super. 224

687 A.2d 1057

Andrew LEVINE, Plaintiff-Appellant, v. Rosemary Levine BACON, Defendant-Respondent.

Superior Court of New Jersey,

Appellate Division.

Argued Dec. 10, 1996.

Decided Feb. 6, 1997.

Drew M. Hurley, Somerville, for Plaintiff-Appellant.

Jennifer Weisberg Millner, Lawrenceville, Defendant-Respondent (Szaferman, Lakind, Blumstein, Watter & Blader, attorneys, Lawrenceville; Ms. Millner and Stacey M. Geurds, Trenton, of counsel and on the brief).

Before Judges MICHELS, KLEINER and COBURN.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Plaintiff Andrew Levine appeals from an order of the Chancery Division, Family Part, that denied his motion for permission to permanently remove Jessica Levine, the minor child born of his marriage to defendant Rosemary Levine Bacon, from New Jersey to Florida.

Plaintiff and defendant were married on March 17, 1988. Jessica, the parties' only child, was born to the couple on October 6, 1988. The parties separated in or about May 1990, with plaintiff taking custody of Jessica. Plaintiff filed for divorce in June 1990. A pendente lite custody order was filed August 23, 1991, designating plaintiff as primary residential parent. This order set defendant's visitation schedule and required her to pay child support. Following a settlement of the matter, a Final Judgment of Divorce was entered on January 13, 1992, which, in pertinent part, provided:

1. That the plaintiff and defendant shall have joint legal custody of Jessica Lyn, the minor child of the marriage. The plaintiff shall be the primary residential parent.

2. The defendant shall have visitation with the minor child on two consecutive weekends from Friday at 5 p.m. until Sunday at 5 p.m. After two consecutive weekends the defendant shall have visitation with the child on Wednesday from 5 p.m. until 12 noon the next Thursday. The defendant shall then have no visitation on the third weekend. The defendant shall have visitation on the Wednesday following the third weekend when she has no visitation from Wednesday at 5 p.m. until the next Thursday at 12 noon. Thereafter the defendant shall recommence this visitation schedule on the next weekend. The defendant shall be responsible for picking up and dropping off the child on the aforesaid days and times except that the plaintiff shall pick up the child at 12 noon on Thursdays as aforesaid at the home of the defendant.

3. Each party shall have the right to two weeks summer visitation with the child (which may or may not be consecutive) during which time the other parent will have no custodial time or visitation. Each party shall give the other party 60 days notice of when they intend to exercise their summer visitation.

The judgment also set forth the holiday visitation schedule and required defendant to pay $40 per week in child support. According to plaintiff, when Jessica started school in 1993, the schedule was revised and the Wednesday overnights were eliminated. Visitation now occurs on Thursdays from 3:30 p.m. to 8:00 p.m. Nevertheless, with this schedule, defendant usually spends two days per week with Jessica in addition to the vacation period.

In August 1992, plaintiff married Valerie Levine (Valerie), a Hillsboro psychologist, with whom he now lives in Princeton. In December 1994, defendant married Dylan Bacon (Dylan), with whom she now lives in Princeton. They have a child named Savannah, who was born on August 3, 1993.

For the past thirteen years, plaintiff managed Bond Cleaners, a Trenton dry cleaning plant with about twenty-five employees which his father owned. Bond Cleaners' clientele included large hotel accounts, as well as wholesale accounts, and a very good walk-up retail trade. As manager, plaintiff handled the hotels' complaints and was responsible for managing everything except the money. He scheduled employees; trained new help; watched the distributions, the drop stores, and the hotels; ran the drycleaning and laundry departments; and looked over sales. His responsibilities included quality control, employee problems, occasional payroll problems, and special requests by customers on their garments.

Plaintiff's father sold Bond Cleaners in November of 1994. As a condition of sale, plaintiff signed a restrictive covenant/covenant not to compete for which he was paid consideration. This agreement prevented plaintiff and his father from opening or working with the same or similar business within a twenty-five mile radius of the New Jersey counties of Camden, Burlington, Mercer, Middlesex and Somerset, as well as Bucks County, Pennsylvania, for a period of ten years.

Pursuant to an employment agreement, dated November 14, 1994, plaintiff received $900 per week plus benefits to remain at Bond Cleaners until July 14, 1995 and teach the new owner the business. Plaintiff claimed that there was no possibility for an extension of this contract. He also stated that he looked for but could not find a drycleaning plant manager position in those New Jersey counties not implicated by the restrictive covenant and looked at numerous issues of American Drycleaner, a national publication that lists employment opportunities in the industry, but found no New Jersey listings.

In light of his claim of a lack of employment opportunities in this State, plaintiff now wishes to move to Florida. According to plaintiff, the owner of Clean-Pro, a business in Florida, has offered him a "ground floor" position selling software systems, used by the dry cleaning industry, on Florida's west coast. Plaintiff claims that he will need additional training regarding computers before he is able to sell the product effectively. Further according to plaintiff, his sales will initially target the Sarasota area but, based on discussions with the owner of the business, he anticipates eventually moving into a sales management position. Plaintiff claims that if he could find a job in New Jersey similar to his Florida offer, he would consider staying.

If he moves to Florida, plaintiff anticipates that he will initially be working out of his home for two full days, not including weekends. He expects to spend the other three weekdays on the road for at least five hours a day. Plaintiff admitted, however, that he is unsure exactly where his sales territory will be and, thus, the time he would spend outside of his home office might vary. If he had to go to Naples, Florida for business, he admits he would spend at least four total hours traveling to and from the city. Plaintiff further acknowledges that he might have to travel as far as Tallahassee, which is about six hours from Sarasota and would require an overnight trip.

In regard to remuneration, plaintiff was offered $750 a week to start and a commission of 5% on a software only sale and 10% on a combined software and hardware sale. Additionally, plaintiff would receive medical benefits and three weeks vacation. Based upon his discussions with the owner, plaintiff anticipates earning an additional $2,000 per month, which represents a total salary of approximately $50,000 plus benefits.

Plaintiff and Valerie wish to sell their New Jersey home and buy a single-family home near Sarasota, which they describe as a culturally rich area located twenty minutes from his parents' home and defendant's parents' home. He anticipates getting a bigger house for less money in Florida because building costs, as well as all costs, are generally lower there. Plaintiff does not believe that moving Jessica to Florida would be harmful to her in any way. He and Valerie researched the Sarasota area schools and found them to be "very good." Plaintiff testified that Jessica would attend public school, but if "she wasn't challenged in public school, then we would consider private school."

Plaintiff admitted that Princeton has an excellent school system and is also a culturally rich area. In comparing schools in Princeton and Sarasota, plaintiff admitted that he knows the Sarasota schools are "not as good as [those in] Princeton." However, plaintiff claimed that even if the court denied his application and he stayed in New Jersey, he would not be able to remain in Princeton because of the covenant. Thus, he anticipates he would need to either move to another county where he can work or possibly go back to school.

Plaintiff believes that his work schedule in the Florida job would enable him to spend more time with Jessica than he currently does, allowing him to put Jessica on the bus in the morning and to be there when she gets home from school every day. Plaintiff also claims that if allowed to move to Florida, he "would promote visitation and a healthy relationship with both sets of [Jessica's] grandparents." While he hopes to "mend our fences," plaintiff acknowledged that the grandparents are no longer speaking to one another and that he is also currently not speaking with defendant's parents.

Plaintiff claims that health concerns for Jessica, who has had a chronic cough every winter since she was born, and for Valerie, who suffers from "chronic cold weather induced asthma," have contributed to his desire to move to Florida. Plaintiff asserts that a warmer climate would be healthier for Jessica and would substantially help Valerie's condition.

A great deal of testimony was directed to the parties' respective parenting skills, their communication with one another, and descriptions of the alternative environments to which Jessica would be exposed. A recitation of this evidence is not essential except to point out that plaintiff claimed that when defendant has visitation with Jessica, she restricts Jessica from contacting him. Defendant claims she only prevented Jessica from calling plaintiff on one occasion and explained that she had just picked Jessica up and walked into the house when Jessica said that she wanted to call her dad. Defendant explained her reaction at the time: "We had just gotten [home...