Voit v. Voit

• Decision Date: 10 June 1998
• Citation: 317 N.J. Super. 103,721 A.2d 317
• Parties: Gregory VOIT, Plaintiff, v. Lisa VOIT, Defendant.
• Court: New Jersey Superior Court

721 A.2d 317

317 N.J. Super. 103

Gregory VOIT, Plaintiff, v. Lisa VOIT, Defendant.

Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County.

Decided June 10, 1998.

Michele Siekerka, Trenton, for plaintiff (Needell, Siekerka & Castellani, attorneys).

Darrlyn Mann, Vineland, for defendant (Mann & Moore, attorneys).

MICHAEL BROOKE FISHER, J.S.C.

This case concerns the always troublesome issue of whether a parent may permanently remove a child from New Jersey against the objection of the other parent. Such cases are generally analyzed under the rules and reasoning set forth in two New Jersey Supreme Court cases, Cooper v. Cooper, 99 N.J. 42, 491 A.2d 606 (1984), and Holder v. Polanski, 111 N.J. 344, 544 A.2d 852 (1988). However, under the unique facts of the instant case, where both legal and physical custody is truly shared, the Cooper/Holder analysis, with its concomitant burden on the parent resisting the move out of state to come forward with evidence that a proposed alternative visitation schedule would be impossible or unreasonably burdensome, is inappropriate. While much of the reasoning of those cases applies, the placing of such a burden of proof on the parent resisting the move would be unfair given the totally shared-parenting arrangement that has to date been engaged successfully by the parties herein. However, before analyzing the law of removal articulated in Cooper and Holder, the facts of this case must first be set forth.

In this matter, Dr. Gregory Voit, an orthopedic surgeon in Vineland, New Jersey, seeks permission of the court to relocate with his son, Garet, from New Jersey to Arizona. His former wife, Mrs. Lisa Voit, who also resides in the Vineland area, objects to the move. The Voits have resided in New Jersey since September 1996.

Dr. Voit met Mrs. Voit in the mid-1980's, while both were undergraduates at the University of Rochester, in Rochester, New York. Mrs. Voit was a native of the Rochester area while Dr. Voit had grown up in New Jersey. They began dating during their undergraduate years. After Dr. Voit attained his undergraduate degree, he stayed at the University of Rochester to attend medical school. The parties dated throughout Dr. Voit's medical school training and were married on June 5, 1987. They remained in Rochester throughout Dr. Voit's internship, which he also completed at the University of Rochester. During Dr. Voit's medical training, Mrs. Voit worked as a soccer coach, and as a paralegal at a law firm in the Rochester area.

In June 1991, the parties moved to Portland, Oregon, where the doctor had secured a surgical residency in general orthopedics. He obtained the residency through a competitive matching process used to place applicants with residency programs. Despite the cross-country move required by the placement, both parties agreed that moving was appropriate, given the scarcity of available residency placements. Both agreed, however, that they would return to the East Coast upon Dr. Voit's completion of the residency. The Voits' only child, Garet, was born in Oregon on February 25, 1993.

During the time the parties lived in Oregon, Mrs. Voit obtained a job with Nike at its corporate headquarters. She particularly enjoyed her job with Nike because it allowed her to pursue her keen interest in sports. While at the University of Rochester, in addition to obtaining her bachelor's degree in political science, Mrs. Voit was also an All-American in women's soccer. After her graduation, she remained with the team as an assistant coach. Her interest in soccer, and sports generally, remained strong thereafter. Thus, Nike, with its obvious connection to sports, was a very desirous employer for her. Mrs. Voit received promotions and salary increases during her tenure at the company. She worked there from September 1991 until the time that the parties left Oregon.

In June 1995 the Voits left Oregon for Albuquerque, New Mexico so that Dr. Voit could pursue a one-year fellowship in hand and micro-vascular surgery. He obtained the fellowship through a matching process similar to the one he participated in to secure his residency. Despite Mrs. Voit's career at Nike, she willingly left her job and accompanied Dr. Voit to New Mexico. Both parties continued to assume, however, that they would move back to the East Coast. Their return to the East was in effect postponed an additional year in order to accommodate Dr. Voit's desire to pursue the hand surgery fellowship.

Unfortunately, by the time the parties moved to New Mexico, their marriage was unraveling. According to Dr. Voit, the marriage was troubled for a long time. He testified that, even before they left Rochester for Oregon, he had told his wife he was unhappy in the marriage. Mrs. Voit denied that she was aware of any problems in the marriage at the time they moved from Rochester to Oregon. On the contrary, she testified that she believed they were happily married when they left Rochester. She also testified that, given the distance from her family and home, she would not have left for Oregon had she known that Dr. Voit had misgivings about the relationship.

Mrs. Voit acknowledged, however, that the marriage was troubled by the time they left Oregon for New Mexico. The testimony established that Dr. Voit had been engaged in a longstanding extra-marital relationship while in Oregon that began prior to the birth of the parties' son in 1993. Mrs. Voit denied that she knew, before moving to New Mexico, that the doctor had been engaged in such an affair. Instead, she attributed the problems in the marriage to his "awful hours" and the "slave labor" of the residency program. She hoped that the parties could work out their differences under the less stressful conditions of New Mexico. Once in New Mexico, however, Mrs. Voit soon became aware of the affair. She then obtained a separate apartment near the home that Dr. Voit continued to share with their son, Garet.

Since the separation, Garet has spent considerable and regular time with both parties. During testimony, both parties stressed how, from the beginning of their separation, they have attempted to "maximize" the time the child spent with the parties as opposed to third-party caretakers. For example, while in New Mexico, instead of arranging for a third party to be with the child while the doctor worked, Mrs. Voit would care for Garet at Dr. Voit's residence.

Despite their ability to parent cooperatively, the parties did not resolve their marital differences. Mrs. Voit testified that between April and August of 1996, the parties worked out the terms of a divorce agreement with the assistance of a mediator. Care and custody of Garet was the primary issue during the negotiations. The mediation agreement was incorporated into a stipulated final decree of dissolution of marriage. The parties filed this final decree in New Mexico on October 15, 1996, by which time the parties had already relocated together to New Jersey. In part that agreement provided for "joint legal and physical custody" of Garet and said as to future issues that "the parties will mutually consult and agree on major matters including living arrangements."

More specifically, the agreement provided that Dr. Voit would have Garet in his care each week from Thursday evening at 6:00 p.m. through Monday morning at 9:00 a.m., with Mrs. Voit having care of Garet for the rest of the week. Mrs. Voit testified that from the beginning of their separation until December 1997 or January 1998, the parties consistently deviated from any set schedule so as to maximize Garet's time with each party. She referred to the mediator's breakdown of time as "boilerplate language," intended to provide a fall-back schedule in case the parties could not agree on a more flexible arrangement. Dr. Voit also indicated in his testimony that the letter of the mediated schedule was not always adhered to. Mrs. Voit maintained that, particularly after the parties relocated to New Jersey, she had Garet even more than the formal schedule indicated. Nevertheless, she conceded that the parties have always maintained a close parity in the time that they spend with Garet.

Both parties concurred that at some point in late 1997, after the parties came to New Jersey, Dr. Voit finally requested that they adhere to the specific times in the agreement. He said that request was made in November 1997. She indicated that the request occurred in December 1997 or January 1998, when the doctor retained an attorney to help him with his removal application. Mrs. Voit asked the court to infer that the motivation for the doctor's insistence on strict compliance with the agreement was his concern that she might be viewed by the court as the de facto residential parent in a removal proceeding.

As has been noted, the parties have resided in New Jersey since September 1996. By the conclusion of his fellowship in New Mexico the doctor had narrowed his job search to three positions—one in Texas, one in Maryland, and the one that he ultimately chose in Vineland. Even though the parties were finalizing their divorce, they cooperated with each other and, consistent with their long avowed plans, selected a site on the East Coast. Mrs. Voit visited New Jersey before the move and helped to select the parties' respective residences. The parties even followed each other in vehicles to New Jersey so as to share in moving expenses and child care.

On September 24, 1996 the doctor commenced employment with a private orthopedic practice in Vineland. From the inception of his employment he was unhappy, although not with his salary. The salary called for by his contract is $135,000 a year, plus an incentive bonus, which in 1997 was an additional $17,000. Were he to stay in Vineland, Dr. Voit would stand to become a shareholder in the practice at the beginning of 1999, and thus potentially to earn more money than he does currently. Despite...