SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-3008-94T2
CARMINE CERMINARA,
Plaintiff-Appellant,
v.
TERESA CERMINARA,
Defendant-Respondent.
_________________________________________________________________
Argued December 5, 1995 - Decided January 17, 1996
Before Judges Michels, Baime and Villanueva.
On appeal from Superior Court of New
Jersey, Chancery Division, Family Part,
Somerset County.
Laura M. Le Winn argued the cause for
appellant.
Ann R. Bartlett argued the cause for
respondent (Alexander & Bartlett,
attorneys; Ms. Bartlett, of counsel
and on the brief).
The opinion of the court was delivered by
MICHELS, P.J.A.D.
Plaintiff Carmine Cerminara appeals from portions of a dual judgment of divorce of the Chancery Division, Family Part, that permitted defendant Teresa Cerminara to relocate permanently to Virginia with the two minor children born of their marriage and
directed him to pay defendant permanent alimony.See footnote 1 More
precisely, the provisions of the judgment challenged on this
appeal are the following:
ORDERED and ADJUDGED that the following
stipulations, having been entered into on the
record by counsel for the parties, be and the
same are hereby incorporated herein:
* * * *
D. Plaintiff shall pay to Defendant as
and for permanent alimony the sum of $200.
per month commencing when Defendant relocates
to the Commonwealth of Virginia, the amount
having been stipulated but not the permanency; and
* * * *
4. ORDERED and ADJUDGED that the Defendant shall be entitled to relocate the children of the parties and herself to the Commonwealth of Virginia as of August 1, 1995;
and it is further
* * * *
6. ORDERED and ADJUDGED that the visitation set forth in J-1 (attached hereto)
shall control for the period of time that the
parties remain living in the State of New
Jersey and the portion of J-1 addressing the
circumstance of Defendant and the children
living in the Commonwealth of Virginia shall
be controlling after Defendant and the children relocate there, with the revisions set
forth herein. After she was relocated to
Virginia, Defendant shall provide all transportation for the weekends specified in J-1
and for vacation visitation with Plaintiff,
except four times a year when the parties
shall meet at a half-way point. Defendant
shall give Plaintiff at least 14 days notice
of those weekends that she chooses to meet
Plaintiff at a half-way point. In addition
to the visitation in J-1, Plaintiff shall
have reasonable and liberal visitation in
Virginia which is expected by this Court to
occur monthly, it being the finding of this
Court that it is in the best interests of the
children of the parties for them to have
visitation with the Plaintiff every two
weeks.
Should Plaintiff acquire a residence at
a mid-way point between the Somerville area
and the place of Defendant's residence,
Defendant shall transport the children to the
mid-way point residence for Plaintiff's visitation when so requested by Plaintiff and
otherwise Defendant shall provide transportation to New Jersey as per the above paragraph; and it is further
7. ORDERED and ADJUDGED that for the
summer of 1995, Plaintiff shall have the
children with him from the last day of school
through July 16, 1995. The children shall
then go back to Defendant for the period from
July 17, 1995 through August 17, 1995. The
children shall go back to the Plaintiff for
the period of August 18, 1995 through August
27, 1995, at the end of which period Defendant shall pick them up to return to her
residence; and it is further
* * * *
14. ORDERED and ADJUDGED that the nature
of the alimony payable by Plaintiff to Defendant shall be permanent and it shall not be
affected by Defendant's employment full-time
as a teacher, a circumstance contemplated by
the court. The alimony would be subject to
modification, however, by Defendant's full-time employment as a certified public accountant or any other change in circumstance, or
circumstance not anticipated by this Court in
making this ruling, it being the finding of
this Court that Defendant's earning capacity
is lower than Plaintiff's earning capacity;
. . . .
Plaintiff seeks a reversal of the foregoing portions of the judgment, contending that (1) the judgment permitting defendant to relocate permanently to Virginia with the two children is based on findings of fact not supported by substantial credible
evidence in the record and on legal conclusions that are
incompatible with established controlling precedent, and (2) the
trial court erred in awarding defendant permanent alimony. We
disagree and affirm.
We have carefully considered the record and all of the
arguments presented and are satisfied that the portions of the
dual divorce judgment challenged on this appeal are based on
findings of fact which are adequately supported by the record.
R. 2:11-3(e)(1)(A). Moreover, we are convinced the trial court
did not mistakenly exercise its discretion in permitting
defendant to relocate permanently to Virginia with the children
born of the marriage and in awarding defendant permanent alimony;
and that all issues of law raised are clearly without merit.
R. 2:11-3(e)(1)(E).
In general, the removal of children from this State by a custodial parent is governed by N.J.S.A. 9:2-2, which, in pertinent part, provides:
When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are natives of this State, or have resided five years within its limits, they shall not be removed out of its jurisdiction . . . without the consent of both parents, unless the court, upon cause shown, shall otherwise order.
In Cooper v. Cooper, 99 N.J. 42 (1984), the Supreme Court clarified the standards to be followed in determining whether to permit the custodial parent to remove a child from the State of
New Jersey. The Court held that in order "to establish
sufficient cause for . . . removal" when an application therefor
is challenged, the custodial parent must make a threshold showing
that "there is a real advantage to that parent in the move and
that the move is not inimical to the best interests of the
children." Id. at 56. Although frivolous reasons will not
justify removal, the purported advantage need not be substantial.
Rather, it need only be based "on a sincere and genuine desire of
the custodial parent to move and a sensible good faith reason for
the move." Ibid. As long as the move will not result in any
detriment to the children, such as cutting them off from special
medical or educational care, it will not be deemed inimical to
their best interests. Moreover, whether the custodial parent has
made this threshold showing is to be determined independent of
visitation considerations.
If the custodial parent makes the requisite initial showing,
then a court must take into account other factors in deciding the
application for removal. "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." Id. at
56-57. Also instrumental to a court's decision are the bona
fides of "the custodial parent's motives in seeking to move" and
those of the noncustodial parent in objecting to the move. Id.
at 57. Lastly, a court must consider, in light of the facts of
each case, whether a "realistic and reasonable visitation
schedule can be reached if the move is allowed." Ibid. Evidence
of these factors may be used to rebut either the custodial
parent's threshold showing or "the arguments of the noncustodial
parent against removal." Ibid.
Providing additional guidance, the Court explained that "[a]
realistic and reasonable visitation schedule is one that will
provide an adequate basis for preserving and fostering a child's
relationship with the noncustodial parent if the removal is
allowed." Ibid. The Court cautioned against interfering with a
pattern of weekend visitation because such visitation evidences
the noncustodial parent's sincerity in maintaining a closeness
with the child. However, the burden of establishing that an
alternative visitation schedule is not feasible is upon the
noncustodial parent, who has all the necessary proofs at his or
her disposal. Id. at 57-58. "The more evidence there is that
the noncustodial parent's visitation with the children will be
adversely affected, the more of a showing of compelling reasons
to move must be made by the custodial parent." Id. at 58. Proof
of mere inconvenience is insufficient "to overcome [the]
custodial parent's right to remove the children after he or she
has met the threshold showing" that removal should be allowed.
Ibid.
However, the Cooper standard was subsequently modified in
Holder v. Polanski,
111 N.J. 344 (1988), by eliminating the
requirement that the custodial parent show a real advantage to
the move. Under the Holder test, "a custodial parent may move
with the children of the marriage to another state as long as the
move does not interfere with the best interests of the children
or the visitation rights of the non-custodial parent." Id. at
349. All the custodial parent need establish is that he or she
has a "good-faith reason" for making the move. Id. at 353. In
short, absent "an adverse effect on the noncustodial parent's
visitation rights or other aspects of a child's best interests,
the custodial parent should enjoy the same freedom of movement as
the noncustodial parent." Id. at 352. See Murnane v. Murnane,
229 N.J. Super. 520, 529 (App. Div. 1989) (stating that "[t]he
Holder Court modified the rule of Cooper by holding that `any
sincere, good faith reason will suffice, and that a custodial
parent need not establish a "real advantage" from the move.'").
With respect to this test, the Holder Court emphasized:
[P]roofs concerning the prospective advantages of the move, the integrity of the
motives of the party, and the development of
a reasonable visitation schedule remain
important. Cooper v. Cooper, supra, 99 N.J.
at 56-57. The emphasis, however, should not
be on whether the children of the custodial
parent will benefit from the move, but on
whether the children will suffer from it.
See ibid. Motives are relevant, but if the
custodial parent is acting in good faith and
not to frustrate the noncustodial parent's
visitation rights, that should suffice.
Maintenance of a reasonable visitation schedule by the noncustodial parent remains a
critical concern, but in our mobile society,
it may be possible to honor that schedule and
still recognize the right of a custodial
parent to move. In resolving the tension
between a custodial parent's right to move
and a noncustodial parent's visitation
rights, the beacon remains the best interests
of the children. [Holder, supra, 111 N.J. at
353-54.]
See also Rampolla v. Rampolla,
269 N.J. Super. 300, 307 (App.
Div. 1993); Winer v. Winer,
241 N.J. Super. 510, 520-21 (App.
Div. 1990). Cf. McMahon v. McMahon,
256 N.J. Super. 524, 529-37
(Ch. Div. 1991).
Analyzed in light of these principles, the trial court
properly granted defendant permission to relocate to Virginia
with the two children. Contrary to plaintiff's claim, the trial
court's decision does not lack either a factual or a legal basis.
The trial court found that under Holder, supra, plaintiff
had proven a good faith reason to move, specifically concluding
that defendant would be happier in Virginia. Contrary to
plaintiff's position, the mere fact that defendant was admittedly
capable of caring competently for her children, while at the same
time being personally unhappy with living in New Jersey, is not
sufficient reason to deny removal. Clearly, the personal
happiness of the custodial parent impacts on the relationship of
the parent with the children of the marriage and thereby serves
the best interests of the children. The trial court
appropriately considered this factor.
Additionally, there were facts before the trial court that
refuted plaintiff's and Dr. Greenberg's opinion that defendant
was not interested in maintaining plaintiff's role as a father.
For example, defendant agreed to a very generous visitation
schedule and even offered to drive the children to plaintiff's
home in New Jersey or half way there to allow him to have more
time to spend with them. While plaintiff and Dr. Greenberg
submit that defendant failed to consider the impact of a move on
plaintiff's relationship with his children, these facts speak
otherwise.
Nor is there any merit to plaintiff's assertion that the
trial court failed to consider the best interests of the children
because it disregarded some of Dr. Greenberg's recommendations.
In this regard, we emphasize that the trial court was not bound
by the findings and opinions of Dr. Greenberg, even though she
was the court-appointed expert. See Todd v. Sheridan,
268 N.J.
Super. 387, 400-01 (App. Div. 1993); see also McMahon, supra, 256
N.J. Super. at 537. The trial court was obligated to make its
own findings of fact and conclusions of law. There are several
factors relevant to the best interests of a child that a trial
court considers when weighing the competing interests of the
parents, including the cost of living, the benefit of having
family nearby and the quality of education and health care. If,
as here, the custodial parent has a good faith reason for the
move, absent infringement upon the child's best interests, the
move will be allowed. Holder, supra, 111 N.J. at 352.
The trial court based its findings that the move would be in
the children's best interests on several factors, including the
defendant's personal happiness and the greater economic and
professional opportunities for her in Virginia. Additionally,
the trial court found that defendant's family in Virginia would
be able to provide significant emotional and financial support.
The proofs concerning defendant's job with her father's
accounting firm, the invitation to live in her parents' home
until her new home is built, the gift of a lot next to her
parents' home and their offer to finance its construction,
support this conclusion.
The trial court also found that the move was not a bad faith
endeavor to spirit the children away from plaintiff or thwart his
visitation rights. While the trial court recognized that the
removal of the children to Virginia would affect plaintiff's
visitation rights, it found that so long as an appropriate and
reasonable visitation schedule was created, a sufficient basis
existed under prevailing law to justify the move.
While plaintiff's visitation schedule is a critical concern,
"in our mobile society, it may be possible to honor that schedule
and still recognize the right of a custodial parent to move."
Holder, supra, 111 N.J. at 353; see also Murnane, supra, 229 N.J.
Super. at 530; Winer, supra, 241 N.J. Super. at 520. Here the
trial court properly balanced the best interests of the children,
plaintiff's visitation rights, and the right of defendant to move
and, in so doing, ordered a reasonable visitation schedule. The
trial court awarded the parties joint custody of the children and
granted plaintiff more summer vacation time with the children
than even Dr. Greenberg recommended. The trial court also
encouraged plaintiff to visit his children anytime he was in
Virginia. Finally, the trial court ordered full telephone access
for the children to the other parent, equal sharing or
alternating the girls' birthdays, fostering continued love and
respect for the other parent and counselling.
Although defendant's move to Virginia will affect
plaintiff's visitation rights, there is nothing in the record
before us to show that plaintiff will not be able to maintain
substantial contact with his children. Moreover, the fact that
visitation may be made more difficult by such a move "standing
alone is insufficient" to deny defendant's relocation plan.
Winer, supra, 241 N.J. Super. at 520; Murnane, supra, 229 N.J.
Super. at 530-31. The best interests of the children remain the
central concern, Holder, supra, 111 N.J. at 353-54, and the trial
court properly considered the children's best interests in
allowing defendant to relocate to Virginia. Defendant is the
main caregiver for these children, and defendant's move to
Virginia with its economic advantages is clearly in the
children's best interests.
In sum, substantial credible evidence in the record as a
whole supported the findings and conclusions of the trial court
that permitted defendant to relocate from New Jersey to Virginia
with the two children and there is no sound reason or
justification for disturbing them. Leimgruber v. Claridge
Associates, Ltd.,
73 N.J. 450, 455-56 (1977); Rova Farms Resort,
Inc. v. Investors Ins. Co. of Am.,
65 N.J. 474, 483-84 (1974).
Finally, we are satisfied that the trial court properly ordered plaintiff to pay defendant permanent rather than
rehabilitative alimony. The law is clear that courts may award
alimony in divorce actions "as the circumstances of the parties
and the nature of the case shall render fit, reasonable and just
. . . ." Innes v. Innes,
117 N.J. 496, 503 (1990)(quoting
N.J.S.A. 2A:34-23). It is well settled that an alimony award
should be designed to continue the standard of living enjoyed by
a party prior to the separation. See Innes, supra, 117 N.J. at
503; Mahoney v. Mahoney,
91 N.J. 488, 501-02 (1982); Lepis v.
Lepis,
83 N.J. 139, 150 (1980); Khalaf v. Khalaf,
58 N.J. 63, 69
(1971); Guglielmo v. Guglielmo,
253 N.J. Super. 531, 543 (App.
Div. 1992); Aronson v. Aronson,
245 N.J. Super. 354, 364 (App.
Div. 1991).
The primary factors that the trial court must consider in
awarding alimony are the actual need of the dependent spouse, the
ability of the supporting spouse to pay and the duration of the
marriage. Mahoney, supra, 91 N.J. at 502. In 1988, the
Legislature amended N.J.S.A. 2A:34-23 to include additional
factors that should be considered by courts in awarding permanent
or rehabilitative alimony. These include:
(1) The actual need and ability of the
parties to pay;
(2) The duration of the marriage;
(3) The age, physical and emotional
health of the parties;
(4) The standard of living established
in the marriage and the likelihood that each
party can maintain a reasonably comparable
standard of living;
(5) The earning capacities, educational
levels, vocational skills, and employability
of the parties;
(6) The length of absence from the job
market and custodial responsibilities for
children of the party seeking maintenance;
(7) The time and expense necessary to
acquire sufficient education or training to
enable the party seeking maintenance to find
appropriate employment, the availability of
the training and employment, and the opportunity for future acquisitions of capital
assets and income;
(8) The history of the financial or non-financial contributions to the marriage by
each party including contributions to the
care and education of the children and interruption of personal careers or educational
opportunities;
(9) The equitable distribution of property ordered and any payouts on equitable
distribution, directly or indirectly, out of
current income, to the extent this consideration is reasonable, just and fair; and
(10) Any other factors which the court
may deem relevant. [N.J.S.A. 2A:34-23b.]
"In any case in which there is a request for an award of
rehabilitative or permanent alimony, the court shall consider and
make specific findings on the evidence about the above factors."
N.J.S.A. 2A:34-23b. This amendment also permits the award of
permanent or rehabilitative alimony or both. Finelli v. Finelli,
263 N.J. Super. 403, 405 (Ch. Div. 1992); Kulakowski v.
Kulakowski,
191 N.J. Super. 609, 612 (Ch. Div. 1982).
It is well settled that a "supporting spouse has a
continuing obligation to contribute to the maintenance of the
dependent spouse at the former standard of living." Guglielmo,
supra, 253 N.J. Super. at 543 (citing Lepis, supra, 83 N.J. at
152). In determining support, earning capacity as well as the
property and capital assets of the supporting spouse are to be
considered. See Bonanno v. Bonanno,
4 N.J. 268, 273-74 (1950);
Weitzman v. Weitzman,
228 N.J. Super. 346, 354 (App. Div. 1988),
certif. denied,
114 N.J. 505 (1989); see also Mowery v. Mowery,
38 N.J. Super. 92, 102 (App. Div. 1955), certif. denied,
20 N.J. 307 (1956). Additionally, assets that are equitably distributed
may also be used to satisfy an alimony obligation. Slayton v.
Slayton,
250 N.J. Super. 47, 50 (App. Div. 1991).
As to the duration of alimony, "[t]he extent of actual
economic dependency, not one's status as a wife, must determine
the duration of support as well as its amount." Lepis, supra, 83
N.J. at 155. Rehabilitative, rather than permanent alimony may
be awarded where circumstances indicate that alimony should
terminate in the future. See Weber v. Weber,
211 N.J. Super. 533, 537 (App. Div. 1986). In Shifman v. Shifman,
211 N.J.
Super. 189, 194-95 (App. Div. 1986), we explained:
The basic premise of an award of rehabili
tative rather than permanent alimony is an
expectation that the supported spouse will be
able to obtain employment, or more lucrative
employment, at some future date. See Hill v.
Hill,
91 N.J. 506, 509-510 (1982); Turner v.
Turner,
158 N.J. Super. 313 (Ch. Div. 1978).
Thus, rehabilitative alimony may be employed where one spouse has been out of the workplace, usually raising a family and maintaining the marital home, thereby allowing the other spouse to pursue career goals. Upon separation, the unemployed
spouse needs time and assistance to recover from their absence
from the workplace. Rehabilitative alimony has been approved by
the Supreme Court because "a party is entitled to continue at a
customary standard of living inclusive of costs necessary for
needed educational training." Mahoney v. Mahoney, supra, 91 N.J.
at 502 (emphasis supplied); see also Lepis, supra, 83 N.J. at 155
n.9; Smith v. Smith,
224 N.J. Super. 559, 561-62 (Ch. Div. 1988).
Additionally, "[r]ehabilitative alimony, since awarded for a
brief period of time, may well be for a sum greater than would
have been awarded as permanent alimony." Turner v. Turner,
158 N.J. Super. 313, 318 (Ch. Div. 1978). And, "the allowance of
rehabilitative alimony does not preclude an allowance of
permanent alimony where the woman's ability to earn is less than
her needs that will be necessary to maintain her same style of
living." Id. at 318-19.
In determining the appropriateness of awarding permanent or
rehabilitative alimony or both, the Chancery Division emphasized
in Finelli, supra, 263 N.J. Super. at 405-06, that:
While the Legislature codified certain
mandatory factors that the court must consider in all types of alimony determinations,
factor No. 7 is particularly applicable to
"rehabilitative" or "both".
"(7) The time and expense necessary to
acquire sufficient education or training to
enable the party seeking maintenance to find
appropriate employment, the availability of
the training and employment, and the opportunity for future acquisitions of capital
assets and income."
The rehabilitative alimony concept has been applied when it is abundantly clear that
it is not a "permanent" alimony case, but
rather a case where the marriage is
relatively short and where the recipient
spouse is capable of full employment, based
on experience, additional training or further
education. The combination of "permanent"
and "rehabilitative" alimony is relatively
new, and would appear to be applicable when
it is shown that the factors necessary for
"permanent" alimony have been proven, as well
as all factors to show ability to train or
educate for future gainful employment so as
to become more, though not completely, self-sufficient.
Regardless of definition, before this or
any other court, appellate or otherwise, can
even consider rehabilitative alimony, there
must be evidence presented which could form
the basis of such an award, and such factors
must be proven by the greater weight of the
evidence.
Applying these well-settled and fundamentally sound principles to this case, we are satisfied that the record establishes that defendant is entitled to permanent rather than rehabilitative alimony. First, plaintiff has, in light of his earning capacity and assets, the means by which to meet a modest alimony payment of $200 per month, a figure stipulated to by the parties. Second, as the trial court appropriately observed, defendant is 42 years old. In order to raise her children, she has not worked consistently during her 12 year marriage. To now expect defendant to find employment that will afford her a salary comparable to her ex-husband's is impractical and unfair. Although defendant may have earning potential because of her teaching and accounting background, there is no assurance that she will find suitable employment in either field upon her relocation absent her father's offer, and that if she does find
such employment, that she would earn enough to maintain her
present lifestyle and economic and social status. In sum, we are
satisfied that in these circumstances, the trial court did not
err in awarding defendant permanent rather than rehabilitative
alimony.
Accordingly, the judgment under review is affirmed substantially for the reasons expressed by Judge Dilts in his thorough and thoughtful oral opinion of November 30, 1994.
Footnote: 1At oral argument, plaintiff's counsel abandoned the appeal from Paragraph 15 of the order which declared the value of his architectural practice, fixed his interest therein for the purpose of equitable distribution and determined the responsibility for the tax consequences generated by the future disposition of his practice.