Opinion
DOCKET NO. A-4924-13T2
02-12-2016
KATHERINE MULHOLLAND, f/k/a KATHERINE WHEELER, Plaintiff-Respondent, v. MICAH KHAN, Defendant-Appellant.
Micah Khan, appellant, argued the cause pro se. D. Ryan Nussey argued the cause for respondent (Klineburger and Nussey, attorneys; Mr. Nussey and Carolyn G. Labin, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Carroll and Sumners. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FD-04-881-07. Micah Khan, appellant, argued the cause pro se. D. Ryan Nussey argued the cause for respondent (Klineburger and Nussey, attorneys; Mr. Nussey and Carolyn G. Labin, on the brief). PER CURIAM
Following a remand and a plenary hearing, the Family Part entered an order on May 15, 2014, permitting plaintiff Katherine Wheeler, now known as Katherine Mulholland, to relocate to Watervliet, New York with the parties' minor child. In an extensive oral opinion, Judge Kathleen Delaney analyzed the factors set forth in Baures v. Lewis, 167 N.J. 91 (2001), and found that plaintiff had a good faith reason for the move and that the move would not be inimical to the child's best interests. Defendant Micah Khan now appeals from the May 15, 2014 order. We affirm substantially for the reasons contained in Judge Delaney's thorough and well-reasoned decision.
The parties were never married. Their daughter, M.K., was born in May 2004. Defendant initially only had supervised visitation with M.K., as he was intermittently incarcerated during the first few years of her life. Thereafter, the parties agreed to share legal custody of M.K. Plaintiff resided with the child in New Jersey and was designated parent of primary residence. Plaintiff served as M.K.'s primary caregiver, took her to and from school and doctor's appointments, and generally cared for her everyday needs. Defendant had parenting time with M.K. on alternating weekends, and also one evening per week from 4:00 to 8:00 p.m.
Plaintiff met her current husband, Sean Mulholland (Sean), in January 2008. Sean met M.K. in June 2008, and by all accounts they have since enjoyed a close and loving relationship. In 2010, plaintiff, Sean, and M.K. moved into an apartment together in Merchantville, New Jersey. Plaintiff and Sean later married in July 2013.
Following a period of unemployment, Sean engaged the services of a headhunter as he was unable to find a new job in New Jersey. Sean was then offered a position as a sales consultant with a company in the Albany, New York area. His total annual earnings were projected to be approximately $93,000, triple the amount he previously earned as a copier salesman.
In May 2013, plaintiff filed a pro se motion to relocate with the minor child to the Albany area. Plaintiff explained the support that Sean had provided to her and M.K. over the past several years. Sean's new employment would allow the family to move from their small apartment to a nicer neighborhood with a better school system. Plaintiff would no longer need to work full-time, which would allow her to spend more time with M.K.
Defendant opposed the application, asserting that it was made in bad faith. He contended that the move, if allowed, would not be in M.K.'s best interests and would uproot her from various extended family members, friends, and classmates. Defendant also argued that it would be impracticable and unaffordable for him to drive from the Camden area to upstate New York to visit with the child.
Reviewing the Baures factors, the court initially found that plaintiff demonstrated a "good reason" for the move. However, because plaintiff had not included a written parenting plan with her moving papers, she failed to establish a prima facie case for relocation. Consequently, the burden did not shift to defendant to produce evidence opposing the move. On June 14, 2013, the court denied the motion.
Plaintiff promptly retained counsel and filed an Order to Show Cause and an Application to Relocate. This new application included additional documentation regarding Sean's new employment and the competing school systems, and a proposed schedule that plaintiff asserted would afford defendant parenting time with M.K. comparable to that which he enjoyed under the existing parenting time order. Defendant opposed the application, and also cross-moved for custody of M.K. On July 26, 2013, the court again denied plaintiff's request to relocate. The court treated plaintiff's request as a motion for reconsideration, and concluded that plaintiff failed to satisfy the controlling standards for reconsideration because the parenting plan that was presented could have been submitted with the initial motion. The court also denied defendant's custody request, finding that he failed to show a substantial change in circumstances.
Plaintiff appealed the June 14 and July 26, 2013 orders. In an unpublished decision we concluded:
We are [] satisfied that had plaintiff's visitation plan properly been considered, her proofs were sufficient to meet her initial burden to establish prima facie that she had a good faith reason for the move, and that it would not be inimical to the child's interests. Under Baures . . . the burden of going forward should have then shifted to defendant to demonstrate that plaintiff's application was not made in good faith, or that relocation would be inimical to the child's best interests.We therefore reversed the denial of plaintiff's removal application and remanded with instructions that the trial court "consider all relevant evidence anew." Ibid.
[Mulholland v. Khan, No. A-0214-13 (App. Div. Jan. 28, 2014) (slip op. at 13)].
On remand, after allowing a period of discovery, Judge Delaney conducted a plenary hearing spanning four non-consecutive days from April 30, 2014 to May 8, 2014. The facts adduced at the plenary hearing are set forth at length in Judge Delaney's May 15, 2014 opinion and need not be repeated in the same level of detail here. Summarizing, Sean testified that he views M.K. as his own child, that he taught her how to ride a bike, helped her get ready for school in the morning, and that they enjoyed many activities together as a family. Sean further explained that after graduating from Rowan University in 2009, he worked in advertising at the Courier Post for a few years but was eventually laid off. He then found work as a copier salesman at Keystone Imaging and earned about $30,000 per year. He was later laid off from Keystone, contacted a headhunter and, in 2013, accepted a position as a sales consultant with Synthes, a division of Johnson & Johnson, in the Albany region. The position is commission-based with an earning capacity of approximately $93,000 per year as well as a $500 monthly vehicle allowance.
Sean described the two-bedroom, two-bathroom luxury apartment he was presently renting in Watervliet, New York. The apartment has a yard and is located in a complex in a safe neighborhood with many children. Pending the court's decision on the relocation request, Sean also continued to maintain the lease on the Merchantville apartment where plaintiff and M.K. still resided. Additionally, he was assisting plaintiff financially with electric and grocery bills and M.K's soccer expenses.
Plaintiff described the school that M.K. was attending in Merchantville as a "low-funded" school. If plaintiff moved to New York, she would be able to enroll M.K. in Blue Creek, a better school with textbooks and a gifted student program. Plaintiff testified that she supports M.K.'s relationship with defendant and his extended family. Also, she would ensure that M.K. maintained contact with defendant if the court permitted her to move.
Defendant's expert witness, Alan S. Kagel, Ed. D., opined that it would be inimical to M.K.'s best interests to relocate to New York. Dr. Kagel testified that M.K. has a significant bond with defendant and enjoys a strong relationship with her half-sister and half-brother, as well as her paternal grandparents. Significant psychological and emotional risks existed should M.K. be removed from these familial bonds. In his opinion, plaintiff's proposed parenting plan did not provide defendant sufficient time with the child. Dr. Kagel was unable to present a parenting plan that would not be inimical to M.K.
Dr. Kagel conceded that plaintiff has a much better handle on M.K.'s needs than defendant and that defendant should be more involved in the child's academic life. He also credited plaintiff with playing a big part in M.K.'s overall success and acknowledged that Sean has played a positive role in her life as well. Dr. Kagel acknowledged that M.K. stated definitively that she wished to move to New York.
Defendant testified that he sees M.K. about twenty to twenty-five times a month and attends her various sporting events. He stated that he has an important bond with his daughter and that her relocation will be inimical to her best interests. He also testified that plaintiff is a good parent and that she has never taken M.K. from him during his parenting time with her nor has she ever tried to stop him from seeing M.K. at school or sporting events. As to his significant child support arrears, defendant testified that "time is more valuable than money."
On May 15, 2015, Judge Delaney entered an order granting plaintiff's request to relocate. In her comprehensive oral opinion, Judge Delaney carefully evaluated the credibility of each witness that testified. The judge expressly found plaintiff, Sean, Sean's brother, and the headhunter, to be credible witnesses. The judge also found the testimony of defendant's family members, including his mother, father, and sister-in-law, to be credible.
In contrast, Judge Delaney did not find defendant credible. She noted that defendant's "demeanor changed during the course of his testimony," "[h]e became combative," gave inconsistent testimony, and "did not and would not answer some specific questions asked of him." Also, while downplaying his own substantial child support arrears, defendant "simply cannot and will not accept the fact that [Sean] has and continues to provide financial support for [M.K.] and has shared in many father-like moments with [her]."
Judge Delaney also found Dr. Kagel's expert report and testimony unreliable. The judge noted that Dr. Kagel lacked experience in post-relocation matters and that his "inability to propose an alternative parenting plan also highlight[ed] his lack of knowledge and expertise in this specialized area." The judge found Dr. Kagel's "overall methods" "questionable." Of concern was the fact that "in preparing for this matter [Dr. Kagel] conducted a general search on Google for related articles, yet he did not read the article in its entirety that he cited to in his testimony." The judge was further troubled by Dr. Kagel's admission that "he intentionally left out certain observations and points from his expert report because he knew that he would be questioned during depositions and at trial as to those omitted observations and points."
Judge Delaney then conducted a detailed analysis of the various factors set forth in Baures, supra. She concluded that Sean's lucrative job opportunity in New York and plaintiff's desire to be with him constituted a good faith basis for the relocation request. The judge also determined that plaintiff met her burden to show that the move would not be inimical to M.K.'s best interests, and that defendant failed to demonstrate otherwise. Further, the judge found that the new parenting schedule would allow defendant to remain a consistent presence in M.K's life and that their "strong bond" would not be negatively affected by the move. This appeal followed.
On appeal, defendant argues that the judge failed to make adequate findings of fact and that her decision was contrary to the evidence adduced at the plenary hearing. He also challenges the judge's determination with respect to the adequacy of his parenting time. Additionally, defendant contends that the judge erred in not recusing herself, and that his attorney's malpractice warrants a new hearing. Conversely, plaintiff argues that the judge's findings and conclusions are supported by the evidence and should be affirmed, and that defendant's remaining contentions lack merit.
We first consider our standard of review. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact[-]finding." Id. at 413.
"[I]n reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the trial court's credibility determination[s] and the judge's feel of the case based upon his or her opportunity to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (citing Cesare, supra, 154 N.J. at 394, 411-13, certif. denied, 190 N.J. 257 (2007)) (internal quotation marks omitted); see N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). The trial court's "'feel of the case' [] can never be realized by a review of the cold record." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). "[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms, supra, 65 N.J. at 484. We may only "exercise [our] original fact[-]finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter." Ibid.
An application for relocation requires consideration of several principles. Relocation by the custodial parent was once looked upon with disfavor by our courts, but is no longer. As the Supreme Court has observed:
Over time, there has been a shift in relocation law across the country. That shift has resulted from several factors: the mobility of the population, advances in
technology, the notion that what is good for the custodial parent is good for the children of the divorce, and a renewed recognition that the custodial parent who bears the burden and responsibility for the child is entitled, to the greatest possible extent, to the same freedom to seek a better life for herself or himself and the children as enjoyed by the noncustodial parent.
[Morgan v. Morgan, 205 N.J. 50, 62 (2011) (internal quotation marks and citations omitted.)]
When the physical custodial relationship among parents is such that one parent serves as primary caretaker and the other parent as secondary caretaker, then the custodial parent's request to relocate is governed by the two-part test in Baures, supra, 167 N.J. at 122. Baures requires that removal be permitted where the preponderance of the credible evidence demonstrates the custodial parent has a good faith reason for the move and the move will not be inimical to the children's interests, i.e., the children will not suffer from it. Id. at 118. This standard
accords particular respect to the custodial parent's right to seek happiness and fulfillment, guarantees regular communication and contact between the non-custodial parent and the child of a nature and quality to sustain that relationship, and incorporates a variation on a best interests analysis by requiring proof that the child will not suffer from the move.
[MacKinnon v. MacKinnon, 191 N.J. 240, 257 (2007) (internal quotation marks and citations omitted).]
When the Baures analysis applies, the trial judge must evaluate whether the moving party has made a prima facie case by considering twelve factors, including:
(1) the reasons given for the move; (2) the reasons given for the opposition; (3) the past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move; (4) whether the child will receive educational, health and leisure opportunities at least equal to what is available here; (5) any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location; (6) whether a visitation and communication schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child; (7) the likelihood that the custodial parent will continue to foster the child's relationship with the noncustodial parent if the move is allowed; (8) the effect of the move on extended family relationships here and in the new location; (9) if the child is of age, his or her preference; (10) whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent; (11) whether the noncustodial parent has the ability to relocate; (12) any other factor bearing on the child's interest.The initial burden on the movant "is not a particularly onerous one." Id. at 118. Once the moving party makes a prima facie showing, the burden shifts to the non-moving party to "produce evidence opposing the move as either not in good faith or inimical to the child's interest." Id. at 119.
[Id. at 116-17.]
Here, Judge Delaney thoroughly analyzed the Baures factors and found that plaintiff established a prima facie case that the move was in good faith and would not be inimical to the child. The judge's finding that Sean's new employment significantly improved plaintiff's lifestyle and financial status and that of M.K. is supported by the record and entitled to deference. Defendant's own expert, Dr. Kagel, agreed that plaintiff advanced a good faith reason for the move. Moreover, despite defendant's contention to the contrary, a new parenting time schedule had been structured to give defendant sufficient time during holidays and the summer so that he has almost as many overnight visits as in the original schedule.
Despite defendant's discontent with the relocation, he failed to establish that the move was not in good faith or that it would actually be harmful to M.K. Nor did defendant rebut plaintiff's evidence. Other than Dr. Kagel's opinion testimony, which the judge discredited, defendant's case largely hinged on his contention that M.K. would suffer because she was farther away and would get to see him and his extended family less. To establish that relocation is not in the child's best interest, more than mere separation or change in parenting time must be shown. Morgan, supra, 205 N.J. at 64 (citing Baures, supra, 167 N.J. at 113, 117). Instead, the noncustodial parent must show that changed parenting time is detrimental to the child or that "for particular reasons, and in light of the unique facts surrounding his or her relationship with the child," the child will be unable to adapt to the relocation. Id. at 66. As the judge found, defendant produced no such credible or reliable evidence.
Judge Delaney was free to discount Dr. Kagel's expert testimony, and she appropriately explained her reasons for doing so here. A trial court is free to accept or reject the testimony of either side's expert, in full or in part. Brown v. Brown, 348 N.J. Super. 466, 478 (App. Div.), certif. denied, 174 N.J. 193 (2002). See also Model Jury Charge (Civil) 1.13 and 1.13(B).
We reject defendant's contention that the judge should have recused herself because she previously served as an assistant prosecutor at the time defendant was prosecuted for his criminal offenses. Defendant does not aver that the judge ever had any involvement in his prosecution. We conclude that vacating the judge's order is unwarranted, as the judge's former employment did not give rise to any conflict, real or apparent, nor did she demonstrate any hostility or bias against defendant. Suffice it to say, we find no abuse of discretion in the judge's decision to deny recusal. See Panitch v. Panitch, 339 N.J. Super. 63, 67, 71 (App. Div. 2001) (stating recusal rests in the sound discretion of the trial court, and will be reversed only upon an abuse of that discretion).
Finally, defendant's argument that the order should be reversed and the case remanded due to the alleged malpractice of his attorney lacks sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). In sum, we find no basis to vacate the removal order, as the record fully supports the judge's order permitting plaintiff to relocate with M.K.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION