Zwernemann v. Kenny

• Decision Date: 15 September 1988
• Citation: 236 N.J.Super. 37,563 A.2d 1158
• Parties: Andrew G. ZWERNEMANN, Plaintiff, v. Janice KENNY, Defendant.
• Court: New Jersey Superior Court

Page 37

236 N.J.Super. 37

563 A.2d 1158

Andrew G. ZWERNEMANN, Plaintiff, v. Janice KENNY, Defendant.

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

Decided Sept. 15, 1988.

Joseph Skripek, for plaintiff (Barbaris & Skripek), Wayne.

Melinda Lowell, Fort Lee, for defendant.

KAHN, J.S.C., (temporarily assigned).

This matter involves a complaint by plaintiff ex-husband Andy Zwernemann (hereinafter referred to as Andy) against defendant ex-wife Janice Kenny (hereinafter referred to as Janice) to enjoin the removal of the infant child of the marriage, Andrew, from the State of New Jersey and for custody of said child. Janice cross-moves for permission to remove Andrew to the State of Florida. Both sides presented testimony and documentary evidence claiming that they have satisfied the standards set forth in Cooper v. Cooper, 99 N.J. 42, 491 A.2d 606 (1984), so as to prevail.

BACKGROUND

These parties were married January 1979 and had one child, Andrew, born July 29, 1979. They separated in May 1983, and became divorced August 1984. The parties resided in Nanuet, New York at the time of the separation. Subsequently, Andy moved to Wyckoff and Janice remained with the child in Nanuet. At the time of the divorce, the parties agreed to sell the Nanuet house. Both parties, Janice using her half of the proceeds of the sale and Andy using his half of the proceeds, jointly purchased a two-family house in Northvale. I believe this unusual arrangement between ex-spouses was based upon both of the parties' desire for a suitable residence for Andrew's benefit. The divorce decree is silent as to these matters.

The parties made their own arrangement regarding equitable distribution, support, custody and visitation. No postjudgment litigation has taken place until these applications.

Andy and his present wife now reside in a one-family home of ample size and character, located in Ramsey, New Jersey, Bergen County. Janice has been remarried for approximately 18 months (Matthew Kenny) and she and her current husband continue to reside in the aforementioned Northvale home. Both parties' second marriages are presently intact and neither party has borne any children.

Andy claims a status of joint custody because Andrew lives with him 50% of the time and because Andy participated in all his activities. Andy states that in a given two-week period, Andrew resides with him one weekend (Friday, Saturday and Sunday), in addition to two nights each week, totaling 7 nights per 14 days. Andy further states that this arrangement existed since the divorce, except when he has had to leave on business trips. Herein lies one of the few conflicts in testimony. Janice contends that immediately after the divorce Andrew was on a schedule similar to that which was stated by Andy except that Andrew became confused with the varying days, not knowing where he was supposed to be. Janice said that the schedule changed for a two-year period so that Andy would have the child Friday, Saturday and Sunday of every other weekend as aforesaid, but the mid-week visitation was limited to one day a week with no overnight visitation during the week. Andy disputes this.

Janice also states that only after the filing of the complaint in the fall, did Andy demand a return to more time with Andrew. Both parties acknowledge, however, that for the entire period of time subsequent to the divorce, Andy maintained a close relationship with the child through frequent personal and telephone contact. Both parties agree that Andy was involved in cub scouts, sports and other activities with Andrew. Janice, however, was the parent to contact for the school, handled Andrew's finances, and arranged for all medical and dental treatment. Overall, Andy played no part in this aspect of Andrew's life. By arrangement, Andy also paid periodic child support to Janice.

For purposes of relating undisputed facts, Andy works for BASF Corp., in a white collar capacity, earning $55,000 per year. His present wife is employed by Cignet Corp., earning $50,000 per year. Both parties acknowledge that Andy has family in the area with whom Andrew has a fine relationship. Facts relating to Janice's employment will be hereinafter detailed.

FACTS SURROUNDING REASONS FOR THE REQUESTED MOVE

Janice testified that prior to this application, in the fall of 1987, she notified Andy that she intended to move to Florida. She contends that Andy voiced no objection, although I have no testimony that such notification included removal of the child. She testified, as did Matthew, that their quarters were cramped and they were pressured by Andy to sell the house and divide the proceeds. She stated that after considering the possibility of receiving $70,000 from the sale of the house, she could not purchase a suitable residence based on income earned by herself and Matthew. She testified that she and Matthew already purchased a home in Kissimmee, Florida for $80,000. They describe the new home as at least equal to, if not better, than Andy'shome in Ramsey and much better than they could afford in Bergen County. She and Matthew also testified that they have job commitments wherein she will have a job from 9 a.m. to 2 p.m. in nearby Orlando. Janice testified that she will begin as a secretary and advance into purchasing, an area in which she professes experience. She states that she will earn $300 per week on a gross basis. Matthew states that he has been offered a job in the Westin Hotel chain as a bar manager for $35,000 per year plus tips and a benefit package. There is testimony, however, that the hotel is still far from completion. Matthew testified that if the job with Westin does not work out, he has a comparable job offer with another hotel. Both offers, he contends, offer major career improvement. In support of this, the parties have produced letters from these employers which generally corroborate the testimony. The Kennys plan to move to Florida on August 22, 1988, so Andrew can be timely enrolled in school.

Matthew and Janice contend that this situation in Florida will provide a significantly better life-style for them, which will have a positive effect upon Andrew's quality of life. Janice cites that the area in which they will live has newly constructed schools as well as a young community with plenty of children. She states that the cost of living is far less than that in Bergen County. Both she and her husband testified that they searched for comparable employment and housing in Bergen County and were unable to find same. Janice acknowledges that she considered that such a move would preclude the current visitation plan; but she volunteers large blocks of visitation for Andrew with his father during school vacations as well as periodic visits by Andy, if possible, during the school year. She feels that this type of plan will not be detrimental to the relationship between Andrew and his father which she acknowledges is excellent. Janice also states her mother also lives in the area, which provides an advantage to Andrew. Janice and Matthew state that Janice is currently employed as a service bar waitress earning approximately $12,000 per year based primarily on a small salary and tips. Matthew is employed as a restaurant bar manager and he alleges earning $15,000 per year.

Andy feels that the relationship that he has with Andrew is so strong that the requested move would be a severe and irreparable detriment to their relationship. He argues that his present schedule is based upon quality as well as quantity of time. In seeking custody, or at the very least, in seeking to restrain the move, Andy indicates that the Ramsey school system is much better than Oceola County, Florida, and cites some literature which appears to indicate a much higher graduation rate. Neither party produced any experts as to these factors and generalized brochures may be unreliable. He offers no testimony or evidence to counter the economic reasons for the requested move but argues that in reality, the purported jobs do not demonstrate as significant an improvement as contended by Janice.

This controversy (the custodial parent's right to permanently remove an infant child from the State of New Jersey) is commonly referred to as a "Cooper Hearing" derived from the Supreme Court case of Cooper v. Cooper, 99 N.J. 42, 491 A.2d 606 (1984). No court order or judgment exists declaring either parent as the custodial parent of Andrew. I find that as based upon facts that have transpired since the Judgment of Divorce, both parties have actually shared joint custody. Janice, however, has been the residential custodial parent because (a) Andrew attends public school in Janice's municipality wherein she has had total contact with the school, and (b) Janice has been totally responsible for arranging all necessary medical care and paying for same. This determination is only necessary because the cases to be hereinafter discussed involve the rights of the "custodial parent." The Supreme Court in Cooper analyzed previous decisional law in this State as well as in other jurisdictions and set forth standards for the purpose of determining such controversy. The Court set forth the factors to be considered:

7. 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. The second factor is the integrity of both the custodial parent's motives in seeking to move and the noncustodial parent's motives to restrain such a move (e.g., whether the custodial parent is motivated by a desire to defeat and frustrate the noncustodial parent's visitation rights and remove himself or herself from future visitation orders or whether the noncustodial parent is contesting the move mainly to impede the custodial parent's plans or to secure a financial advantage with...