ENGY ABDELKADER VS. AHMED ISLAME HOSNY (FM-13-0390-11, MONMOUTH COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1666-16T4
ENGY ABDELKADER,
Plaintiff-Appellant,
v.
AHMED ISLAME HOSNY,
Defendant-Respondent.
_____________________________________
Submitted February 26, 2018 – Decided July 26, 2018
Before Judges Messano, O'Connor, and Vernoia.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth
County, Docket No. FM-13-0390-11.
Einhorn, Harris, Ascher, Barbarito & Frost,
PC, attorneys for appellant (Matheu D. Nunn,
of counsel and on the briefs; Bonnie C. Frost,
on the briefs).
Laufer, Dalena, Cadicina, Jensen & Bradley,
LLC, attorneys for respondent (Michelle A.
Benedek, of counsel and on the brief).
PER CURIAM
Plaintiff Engy Abdelkader and defendant Ahmed Islame Hosny
were married in April 2009. Their son, A.H. (Alec), was born in
2010.1 Shortly thereafter, plaintiff left the marital home with
Alec and moved in with her parents; divorce proceedings ensued.
The dual final judgment of divorce (JOD) entered on June 13,
2011, incorporated a marital settlement agreement (MSA), which
provided the parties would share joint legal custody of Alec, with
plaintiff being designated the parent of primary residence (PPR).
Aside from largely equally shared holidays and school breaks, the
MSA provided defendant with parenting time every other weekend
from Friday through Sunday evening, and one additional overnight
visit with Alec per month on Thursdays. The MSA also permitted
the exercise of additional parenting time by defendant in other
circumstances upon notice.
The parties were required to consult with one another "on all
matters of importance" concerning Alec's health, education,
religious upbringing, and general welfare, and forbade either of
them from making unilateral decisions on such matters except in
the case of an emergency. Lastly, the MSA did not depart from the
general requirements of N.J.S.A. 9:2-2, and forbade either parent
from moving with Alec outside New Jersey without advanced written
consent of the other or a court order approving the relocation.
1
We use initials and a pseudonym to keep the child's identity
confidential.
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Plaintiff continued to live with Alec and her parents but,
in October 2015, having received an offer of employment at
Georgetown University (GU), plaintiff filed a motion seeking to
relocate with Alec to northern Virginia. Defendant opposed the
request and cross-moved for a change in custody. The Family Part
judge denied plaintiff's motion without prejudice and entered an
order requiring the parties to participate in a custody neutral
assessment by a court-appointed expert, permitting each to retain
his or her own independent expert, and setting a discovery schedule
in anticipation of a February 2016 plenary hearing. The judge
permitted plaintiff to move with Alec to Virginia pending the
hearing.
For reasons unnecessary to explain, delays ensued and the
hearing did not commence until August 2016 and did not finish
until September 20, 2016. The judge issued her written decision
in October, concluding that pursuant to the standard for relocation
motions announced in Baures v. Lewis, 167 N.J. 91 (2001), although
plaintiff had a good faith reason for the move to Virginia,
relocation would be inimical to Alec's interests. In her opinion
and conforming order of November 16, 2016 (the November 2016
order), the judge presented plaintiff with three options: (1)
return to New Jersey with Alec, in which case plaintiff would
remain the PPR and there would be no "custody hearing because
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there [was no] substantial change in circumstances"; (2) return
to New Jersey with Alec but commute to work at GU, which would
possibly require a limited custody hearing so the court might
determine if "there ha[d] been a substantial change in
circumstances"; or (3) remain in Virginia, but defendant would be
designated PPR. The order further provided a parenting time
schedule for plaintiff if she chose the third option.2
At a case management conference on December 19, 2016, the
parties executed a consent order (the consent order), in which
plaintiff memorialized her election to remain in Virginia. The
balance of the consent order reflects the parties' agreement on
other parenting time issues and other items affecting Alec's
welfare. Plaintiff then filed this appeal.
Before us, plaintiff contended the judge failed to make
sufficient findings based upon substantial credible evidence that
2
On September 1, 2017, after all briefs were filed, the judge
submitted a letter, ostensibly pursuant to Rule 2:5-1(b),
supplementing her lengthy written opinion. Plaintiff objected and
urged us not to consider the submission. We agree with plaintiff
that the purpose of the Rule is permit a judge to amplify "a prior
statement, opinion or memorandum made either in writing or orally
and recorded." Ibid. Its intent is not to permit the judge to
respond to arguments made by counsel on appeal. See also State
ex rel. N.P., 453 N.J. Super. 480, 489 n.4 (App. Div. 2018)
(recognizing impropriety of trial judge's opposition to motion for
leave to appeal filed under the rubric of somewhat analogous Rule
2:5-6(c)).
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relocation was inimical to Alec's interest and imposed a new burden
upon a relocating parent to demonstrate that the child's
relationship with the non-relocating parent would actually
improve. Plaintiff also argued the judge prejudicially relied
upon the opinion of defendant's expert rather than the neutral,
court-appointed evaluator who favored plaintiff's relocation.3
After the appellate briefs were filed, defendant moved to
supplement the record and dismiss the appeal. In particular,
defendant submitted evidence that plaintiff was no longer on the
3
After the parties filed their appellate briefs, the Supreme Court
issued its opinion in Bisbing v. Bisbing, 230 N.J. 309 (2017), in
which the Court "depart[ed] from the two-part test that Baures
prescribed for a relocation application brought by a parent of
primary residence," and held
[i]n all such disputes, the trial court should
decide whether there is "cause" under N.J.S.A.
9:2-2 to authorize a child's relocation out
of state by weighing the factors set forth in
N.J.S.A. 9:2-4, and other relevant
considerations, and determining whether the
relocation is in the child's best interests.
[Id. at 312-13.]
We requested the parties submit briefs addressing whether we should
apply Bisbing's new standard to our consideration of the points
raised on appeal. Plaintiff argued the new standard should apply;
defendant urged otherwise. In particular, defendant noted that
plaintiff specifically argued before the Family Part judge that
the Baures standard applied. The judge obviously agreed and
considered the hearing evidence in light of that standard. That
alone sufficiently convinces us that we should not address whether
Bisbing applies to matters tried and decided prior to the Court's
decision.
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faculty at GU and was listed as a member of the faculty at Rutgers
University. He argued the appeal was moot.
Although plaintiff opposed the motion, she filed a
certification acknowledging that she was no longer employed by GU
and was searching for other employment in the Washington, D.C.
area. Plaintiff acknowledged she was now living in New Jersey
with her parents and teaching as an adjunct professor at Rutgers.
She emphasized that because life in academia would likely require
her to pursue available job offers in other states, future
relocation "remain[ed] a very real issue." Plaintiff also argued
the appeal was not moot because the order denying relocation
effectively awarded defendant day-to-day custody of Alec. A panel
of our colleagues denied defendant's motion to supplement the
record and dismiss the appeal.
We face a quandary in the sense that although plaintiff's
notice of appeal seeks review of both the November 2016 order and
the consent order, the essence of the appeal — whether the judge
erroneously denied plaintiff's relocation motion — is undoubtedly
moot. Whether Alec may accompany plaintiff if she were to relocate
in the future to follow her academic career is entirely
speculative, and it is well recognized that appellate courts "will
not render advisory opinions or function in the abstract." In re
Camden County, 170 N.J. 439, 449 (2002).
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More importantly, while a consequence of the November 2016
order was that plaintiff undoubtedly faced a "Hobson's choice" and
lost her status as PPR by choosing to remain in Virginia, plaintiff
is no longer living outside New Jersey. Even if she were to
prevail on appeal, i.e., we reverse the judge's November 2016
order, plaintiff would not have the unilateral right to relocate
with Alec to another state.
In Holder v. Polanski, 111 N.J. 344, 347-48 (1988), a pre-
Baures decision, the plaintiff-mother who had physical custody of
the children, sought the court's approval pendente lite to relocate
with them to Connecticut over the defendant-father's objection.
The judge initially awarded plaintiff primary custody of the
children in the final judgment of divorce but denied her request
for relocation. Id. at 348. When she nonetheless moved to
Connecticut, and pursuant to her motion to grant the defendant
physical custody, the judge awarded the defendant "'residential
custody'" of the children and "visitation rights" to the plaintiff.
Id. at 348-49.
The Court concluded the trial court and Appellate Division
had applied the wrong standard to consideration of the plaintiff's
relocation request. Id. at 351-54. The Court determined that the
plaintiff should have been permitted to relocate with the children,
id. at 354, but said:
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We recognize, however, that in this as in many
custody cases, we are confronted with a living
record. Accordingly, a remand is necessary
to reconsider the best interests of the
children. In remanding, we acknowledge that
[the defendant] has had "residential custody"
of the children for the past two years.
Although [the plaintiff] should have been
permitted to move to Connecticut in 1986, the
issue on remand will not be, as it was then,
whether she should move to that state, but
what custodial arrangement is in the best
interests of the children at the present time.
[Ibid.]
In this case, the same result would inure even if we were to
conclude that the Family Part judge should have granted plaintiff's
relocation request first made in 2015. As a result, we dismiss
the appeal as moot.
Nonetheless, the whirlwind of changed circumstances that have
occurred in Alec's young life since 2015 force us to conclude that
a remand to the Family Part is necessary to determine what
custodial arrangement is currently in Alec's best interests. See
Faucett v. Vasquez, 411 N.J. Super. 108, 134 (App. Div. 2009)
(holding that remand for a plenary hearing on custody was necessary
based upon sufficient showing of changed circumstances solely
because of impending year-long military deployment of the parent
of primary residence).
Here, Alec was residing pendente lite with plaintiff in
Virginia for nearly one year before the November 2016 order. He
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has resided with defendant in New Jersey for eighteen months since,
although plaintiff has moved back to New Jersey for a portion of
that time, the consequences of which are undisclosed on this
record. In short, there are sufficient changes in the
circumstances of this child's life to warrant a plenary hearing
at which the judge shall determine what custodial arrangement now
serves Alec's best interests. N.J.S.A. 9:2-4.
The appeal is dismissed; the matter is remanded to the Family
Part. Although plaintiff sought transfer of the matter to a
different judge, that is unnecessary because the judge who
considered the evidence and entered the November 2016 and consent
order has been transferred to another division. Given the start
of another school year in a few months, the remand hearing shall
take place as quickly as possible.
We do not retain jurisdiction.
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