ALEJANDRO MENDOZA VS. SI-NAE SHIM (FM-02-2351-09, BERGEN COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-0917-18T1
ALEJANDRO MENDOZA,
Plaintiff-Respondent,
v.
SI-NAE SHIM,
Defendant-Appellant.
__________________________
Argued October 3, 2019 – Decided October 23, 2019
Before Judges Koblitz, Whipple, and Mawla.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-2351-09.
Robert W. Avery argued the cause for appellant (Avery
& Avery, attorneys; Bonnie C. Frost and Matheu D.
Nunn, on the briefs).
Alejandro Mendoza, respondent, argued the cause pro
se.
PER CURIAM
Defendant Si-Nae Shim appeals from an August 1, 2018 order granting
plaintiff Alejandro Mendoza the ability to remove the parties' children to
Florida, and a September 14, 2018 order, denying reconsideration. We affirm.
This matter has a lengthy history occasioned by defendant's refusal to
return the children from South Korea, where the family had a short-lived
residence due to the parties' work obligations as music instructors. We need not
explain the details surrounding defendant's actions, except to note the ordeal
concluded when defendant was arrested in Guam, extradited to New Jersey, and
the Bergen County Prosecutor's Office required defendant to return the children
to the United States as a condition of the dismissal of the criminal charges
against her.
Following the children's return, a sixteen-day divorce trial occurred and
the court entered a judgment of divorce on June 28, 2013. The trial judge
concluded plaintiff testified credibly and defendant did not. The judge granted
plaintiff sole legal custody of the children and defendant supervised parenting
time because he concluded she posed "a substantial flight risk."
In June 2018, plaintiff filed a motion to remove the children to Florida.
He certified he received an employment offer in Naples, where he would be
earning approximately double his current income. He also certified he had two
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sisters and a niece in Florida, with whom the children were very close. Plaintiff
also requested the court terminate defendant's supervised visitations with the
children, which were one hour per week.
Defendant filed a cross-motion opposing the removal and sought
unsupervised visitation. Her certification questioned the good faith reasons for
the removal. She claimed plaintiff could earn more income in his current
position in New York and operated without debt, due to a bankruptcy action a
few years earlier. Defendant also cited several written summaries of the
supervised visitation sessions and a letter from a former visitation supervisor,
touting the success of visitation.
At oral argument of the motions, the judge issued a tentative decision
summarizing the reasons plaintiff articulated for the removal. The judge added
the following:
[Plaintiff's] position is rather straight forward.
He correctly states that he has sole legal custody over
the children and believes that it is his prerogative to
make decisions for the children, based on what he
believes is in their best interest.
....
He notes that the children are doing exceptionally
well in his care. Particularly musically and
academically he acknowledges that moving to Florida
would effectively terminate [defendant's] weekly in[-]
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person supervised visitation with the children. But he
argues that he is willing to work with [defendant] to
make visitations happen in Florida.
He's also willing to expand the electronic
communications so that [defendant] can communicate
with the children regardless of where they are located.
[Defendant] strongly opposed [plaintiff's]
request for relocation. She argues that [plaintiff] is
effectively trying to terminate her in[-]person parenting
time. In fairness, this is a practical implication of
[plaintiff's] moving to Florida. [Defendant] attaches
notes . . . of her supervised visitations with the
children[.] . . .
Those notes span from 2014 through 2016. There
is no dispute in any of those papers that [defendant]
exercises her supervised parenting time with the
children on a regular basis and that the time is enjoyed
by all parties.
Those documents make it appear that the children
love their mother and their mother loves the children.
....
The allegations of [defendant] are also given
reinforcement from . . . previous Bergen Family Center
supervisors. . . . Both supervisors note that [defendant]
and the children have a loving relationship. [One
supervisor] goes so far as recommending that
[defendant] should be permitted an opportunity to
exercise unsupervised parenting time. That of course
would not be permitted absent a battery of
psychological examinations and[/]or other professional
examinations and professional opinions, to determine
whether or not there is a risk to the children in
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remaining in the presence of [defendant] in an
unsupervised capacity.
Because of that, I do intend to sign an order
granting [plaintiff] the right to relocate to the state of
Florida. There has been no showing made by
[defendant] that there's a change of circumstances . . .
to readdress the custody aspect of this case.
Custody after trial has been vested in [plaintiff].
He has sole legal custody of the children. He has sole
decision making for the children. He has sole
residential custody of the children and . . . there is no
need to have a plenary hearing because there's nothing
to decide.
It is not a question of custody. As that has not
been raised. . . . [T]his is not a joint legal custody case.
And I don't need to address that.
So I do intend to sign an order permitting dad to
relocate with the children to Florida.
The lengthy oral argument that followed failed to convince the judge to
change his tentative decision and he entered the August 1, 2018 order granting
the removal. The order modified visitation and allowed defendant to travel to
Florida once per month to enjoy five hours of supervised visitation. The judge
ordered plaintiff to pay for defendant's flights, and defendant was required to
pay for her accommodations in Florida and for the cost of the supervisor.
Defendant was also entitled to have supervised communication with the children
via Skype, Facetime, telephone, or similar platforms, once daily. The judge
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denied defendant's request for unsupervised parenting time and a custody
evaluation.
Defendant filed a motion for reconsideration. She argued the judge
misapplied the law, she obtained newly-discovered evidence regarding
plaintiff's concealment of information related to his reasons to move to Florida,
and she was unable to afford the costs associated with the monthly visits to
Florida. On September 14, 2018, the judge denied defendant's motion.
Defendant appealed from the September order and we remanded to the
motion judge for the limited purpose of providing defendant an opportunity to
present the new information she claimed to possess related to the removal. The
motion judge conducted a plenary hearing in July 2019. Defendant testified
plaintiff gave false reasons for the move to Florida because he remained
employed in New York; defendant observed him at work, was aware he
continued to teach six students in New York, and saw his car parked near a
Bergen County residence. Defendant also testified plaintiff misrepresented that
he was relocating to Naples when he in fact moved to Sarasota. The judge made
the following detailed findings:
The opinion that I had come to was . . . I was
permitting [plaintiff] to relocate to Florida. Not a
particular location within the State of Florida.
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....
. . . I don't know what the fraud is that would be
committed. I don't find that there was any intentional
act that was uttered or written by him in that regard.
But the bottom line is that [plaintiff] . . . testified
that the car that [defendant] speaks of is not his. He
owns a minivan in Florida. It's registered in Florida,
and he did attach a copy of a document to demonstrate
that. . . .
[Plaintiff] says my job is working for a violin
shop that has various stores in Florida, and I teach
violin to students in the area, and I perform in concerts
in Florida, and in other places throughout the world. He
is a concert violinist. It takes him all over the country.
It takes him to many places outside of the country. But
he is employed in Florida. His family is in Florida.
They live in Florida. And they have roots in Florida.
They have a rental house in Florida.
He testified that the children are attending school
in Florida, and submits a document that one of the
children . . . gained entry into the junior honor society.
He testified that he has a driver's license issued by the
State of Florida. . . . He's employed in Florida. He's
got the letter to prove that he's employed in Florida. In
his [c]ertification he says that everybody, the four —
the children and he and his wife have health insurance
in Florida. He says, what I did in Dumont, I . . . rented
the house. It was not rented out until 2019. On those
occasions [when] he was in New Jersey. What's his
explanation? That [he] had not moved out of New
Jersey, but that he had to get . . . [his possessions] out
of the house, because it's a rental property. . . . He
testified that the moving company came, and they
[came] over the weekends he was here. And during the
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week there were times when he was boxing the stuff up
. . . [n]ot because he was still a resident of New Jersey,
but the stuff had to be packed up into a moving van, and
he was doing it by himself.
I don't find that to be fraudulent, the fact that he's
here in New Jersey. The fact that he's working in New
York, did he disclose it? . . . He was still going to be
working in New York. But what he said was credible.
Yes, I had to give them one semester's notice that I was
not going to be continuing at the Manhattan School, but
I had these students there that I've had since a very
young age. I am their instructor, I want to continue to
be their instructor. They're going there with the
understanding that I would be their instructor. So what
does he do? He comes up here fifteen times in the Fall,
and fifteen times in the Spring. He comes up, he flies
in on a Friday night, he flies out Sunday. He has
students on Saturday, three students from New York,
three students from New Jersey. But that does not show
an intention that he was not going to relocate from New
Jersey. It shows the dedication of . . . a person who is
[in] an honorable profession being a teacher. . . .
....
He explains that he was first offered a position
with the violin shop in Tampa. The training occurred
in Tampa. The intention was that they were going to
expand the shops into Naples, but after the move it
didn't pan out. . . . Instead he's a general manager and
a violin specialist at their established Sarasota location.
That's part of life. Business[es] plan to expand, they
change their mind, and they don't expand as they had
thought, or they make business decisions. But I didn't
see anything . . . [that] the results of the [m]otion were
to say that he was limited to go to Naples. He was going
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to Florida with the children. He's got family in both
Naples and in Sarasota.
....
With regard to allegations that are made by
[defendant] that . . . she doesn't have the funds to visit
the children once a month, as I ordered, since I directed
that he pay for her flights. . . . I remember I expanded
[defendant's] ability to have [a] relationship with the
children by giving her more time in Florida, than she
was getting in New Jersey because of that.
....
The new information, the new evidence that
[defendant] uses, they're real minor details. It would
not have affected my decision in allowing him to
relocate to Florida. Especially in this day and age when
people travel from [s]tate to [s]tate and cross[-]country.
It is not unheard of. . . .
He's a domiciliary of Florida. He's amply
demonstrated that. He has sole custody of the children.
He [h]as demonstrated that this was a move that was
justified. I was satisfied granting that move. There is
nothing new here that I would consider to change that
particular ruling. I do not intend to order that the
children be relocated to the State of New Jersey. Their
roots are now in Florida. Their family is in Florida.
[Defendant] is in New Jersey. [Defendant] is permitted
to visit with the children.
I.
An appellate court's scope of review of the Family Part's factfinding
function is limited. See N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J.
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Super. 451, 476 (App. Div. 2012). The Family Part's factual findings "are
binding on appeal when supported by adequate, substantial, credible evidence."
O'Connor v. O'Connor, 349 N.J. Super. 381, 400-01 (App. Div. 2012) (quoting
Cesare v. Cesare, 154 N.J. at 411-12 (1998)). This traditional standard of review
is expanded when the court committed an alleged error in evaluating the
underlying facts. MacKinnon v. MacKinnon, 191 N.J. 240, 254 (2007).
Nevertheless, a reviewing court should accord deference to the Family
Part's "findings unless they 'went so wide of the mark that a mistake must have
been made.'" Ibid. (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189
N.J. 261, 279 (2007)). "Because of the family courts' special jurisdiction and
expertise in family matters, appellate courts should accord deference to fa mily
court factfinding[,]" and the conclusions that flow logically from those findings
of fact. Cesare, 154 N.J. at 413. "Although we defer to the trial court's findings
of fact, especially when credibility determinations are involved, we do not defer
on questions of law." N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J.
Super. 320, 330 (App. Div. 2011) (citing N.J. Div. of Youth & Family Servs. v.
R.L., 388 N.J. Super. 81, 88-89 (App. Div. 2006)).
On appeal, defendant argues the motion judge misapplied the law when
he permitted the removal because he failed to apply the best interests factors.
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She argues the judge did not address the proper removal standard for "matters
where one parent has sole legal custody and the other parent has weekly
parenting time[.]" Defendant contends the judge created a new legal standard
for non-custodial parents in removal cases by shifting the burden to the non-
custodial parent to demonstrate a change in circumstances to defeat the removal
application. She argues the trial court should have held a plenary hearing to
determine whether relocation of the children to Florida was in their best
interests. Defendant also argues the judge failed to consider the evidence
presented at the plenary hearing on her motion for reconsideration, namely,
evidence plaintiff was still working in New York and driving a car in the New
York/New Jersey area. She also raises objections to the content and format of
plaintiff's appellate brief.
We are unpersuaded that the motion judge committed reversible error or
misapplied the law. N.J.S.A. 9:2-2 states a parent who seeks to remove a child
from the state when the other parent does not consent must demonstrate "cause"
for the removal. As we recently stated, "under N.J.S.A. 9:2-2, '"cause" should
be determined by a best interests analysis in which the court will consider all
relevant factors set forth in N.J.S.A. 9:2-4(c), supplemented by other factors as
appropriate.'" Dever v. Howell, 456 N.J. Super. 300, 313 (App. Div. 2018)
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(quoting Bisbing v. Bisbing, 230 N.J. 309, 338 (2017)). The statutory best
interests factors require the judge adjudicating custody and parenting time
disputes to consider the following:
the parents' ability to agree, communicate and
cooperate in matters relating to the child; the parents'
willingness to accept custody and any history of
unwillingness to allow parenting time not based on
substantiated abuse; the interaction and relationship of
the child with its parents and siblings; the history of
domestic violence, if any; the safety of the child and the
safety of either parent from physical abuse by the other
parent; the preference of the child when of sufficient
age and capacity to reason so as to form an intelligent
decision; the needs of the child; the stability of the
home environment offered; the quality and continuity
of the child's education; the fitness of the parents; the
geographical proximity of the parents' homes; the
extent and quality of the time spent with the child prior
to or subsequent to the separation; the parents'
employment responsibilities; and the age and number
of the children. A parent shall not be deemed unfit
unless the parents' conduct has a substantial adverse
effect on the child.
[N.J.S.A. 9:2–4(c).]
A parent possessed with sole legal custody has the sole authority to make
the major decisions on behalf of the children. See Pascale v. Pascale, 140 N.J.
583, 596 (1995). To be certain, this does not absolve a sole legal custodian of
demonstrating that an out-of-state removal is in the children's best interests, but
defendant concedes custody was not an issue here. The only consideration here
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was the effect of the removal on the children's best interests as related to the
frequency and in-person nature of the visitation.
We are satisfied the motion judge addressed whether the removal was in
the best interests of the children as it related to defendant's visitation. Indeed,
when pressed at oral argument before us to identify what N.J.S.A. 9:2-4 factor
was overlooked by the motion judge, defendant could only identify the
following factors: "the safety of the child and the safety of either parent from
physical abuse by the other parent" and "the quality and continuity of the child's
education[.]" There is no evidence plaintiff posed a danger to the children and
despite defendant's recent history of positive contacts with the children at
visitation, this did not undo the sordid history of her having withheld the
children from plaintiff until she was arrested and threatened with a criminal
prosecution.
Additionally, the evidence in the record demonstrated the removal did not
disrupt the children's educations, and they were thriving in their Florida school.
The N.J.S.A. 9:2-4 factors did not preponderate in defendant's favor. We are
satisfied the motion judge did not overlook the children's best interests.
Indeed, not only did the judge expand and facilitate defendant's visitation,
he took into consideration the fact she would be losing weekly in-person contact
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by requiring personal contact via online video platforms. See McCoy v. McCoy,
336 N.J. Super. 172, 182 (App. Div. 2001) (concluding a parent's "suggested use
of the [i]nternet to enhance visitation was both creative and innovative" and
reversing the judge's dismissal of daily internet video contact between the
children and the parent remaining in New Jersey).
The judge's decision to permit the removal was supported by the
substantial, credible evidence in the record, and was neither an abuse of
discretion, nor a misapplication of law. We have not addressed the other
arguments raised in defendant's brief because they are without sufficient merit
to warrant discussion. Rule 2:11-3(e)(1)(E).
Affirmed.
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