STATE OF NEW JERSEY VS. ERIC GROETHING(3-15, HUDSON COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-2353-15T2
DANIELLE DELORENZO-TAGLIA,
n/k/a DANIELLE FLORES,
Plaintiff-Respondent,
v.
ERIC TAGLIA,
Defendant-Appellant.
__________________________
Submitted January 19, 2017 – Decided April 28, 2017
Before Judges Simonelli and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Bergen
County, Docket No. FM-02-0207-10.
Porro Law Group LLC, attorneys for appellant
(Janet L. Porro, Kristen M. Porro and Janet
S. Del Gaizo, on the brief).
Respondent has not filed a brief.
PER CURIAM
In this post-judgment matrimonial matter, defendant Eric
Taglia appeals from the January 22, 2016 Family Part order, which
permitted plaintiff Danielle DeLorenzo-Taglia to relocate with the
parties' two children to Texas. We affirm.
We derive the following facts from the record. The parties
have two daughters, A.T. and M.T.,1 who were ages thirteen and
nine, respectively, when plaintiff sought to relocate. Pursuant
to an April 8, 2010 consent order, which was incorporated into the
parties' final judgment of divorce, the parties have joint legal
custody of the children, with plaintiff as the parent of primary
residence and defendant as the parent of alternate residence. The
consent order also set defendant's parenting-time, as well as the
parties' holiday, winter and spring recess, and summer vacation
parenting time. The consent order contemplated plaintiff's
relocation to Texas with the children, as it provided for
defendant's parenting time in that event.
In June 2014, plaintiff sought the court's permission to
relocate with the children to Texas. The court appointed Bergen
Family Center (BFC) to conduct a diagnostic evaluation. At the
time, defendant had parenting time on alternate weekends from
Saturday at 10:00 a.m. to Sunday at 6:00 p.m., and Tuesdays from
3:00 p.m. to 7:15 p.m.
In his October 16, 2014 report, John Schmerler, Ph.D., from
BFC, found that because plaintiff was the primary custodial parent,
the factors in Baures v. Lewis, 167 N.J. 91 (2001) governed the
1 We use initials to identify the children to protect their
privacy.
2 A-2353-15T2
evaluation. The doctor determined that plaintiff had a good faith
reason for the move, as her new husband and his children resided
in Texas and her husband's business was there. The doctor also
found that plaintiff had proposed contact extensive enough to
sustain the children's relationship with defendant after the move,
and the move was not inimical to the children's best interests,
since they would receive educational, health, and leisure
opportunities in Texas comparable to what they were presently
receiving. The doctor also noted that other than leaving their
father, the major contraindication for the move was the presence
of an extended family on both sides in New Jersey, but this factor
was somewhat mitigated by the degree to which the children had
been incorporated into the new husband's large extended family.
The doctor recommended that plaintiff be permitted to move to
Texas with the children because the factors supporting such a move
outweighed the contraindications.
Defendant retained Ravinder Bhalla, M.D., who conducted a
best interests evaluation and rendered a report on March 15, 2015.
Dr. Bhalla did not consider the Baures criteria. Rather, he
conducted a best interests analysis, and opined it was in the
children's best interests to remain in New Jersey with plaintiff.
In his May 18, 2015 response to Dr. Bhalla's report, Dr.
Schmerler agreed that under the best interests standard it was in
3 A-2353-15T2
the children's best interests to remain in New Jersey; however,
there were insufficient contraindications to prevent plaintiff
from relocating with the children based on the Baures criteria.
Drs. Schmerler's and Bhalla's reports were admitted into evidence,
but not specifically mentioned by the court in its decision to
permit plaintiff's relocation to Texas with the children.
Plaintiff testified that in Texas, the children would be
sharing a room in a property that she and her husband were renting,
and she would be working in a day care center. Justifying her
relocation to Texas, plaintiff testified as follows:
I truly just wish to provide a semi-normal
life for my children. I know that their
happiness matters and I believe that they will
be happy in a settled situation with a normal
two-parent home, whether that's a blended
family or not. And they are very happy with
the thought of having brothers and their step-
father.
They are close with their step-father. He
taught [A.T.] how to tie her shoes and ride a
bicycle. He has spent time teaching [M.T.]
how to play the guitar. They do have a special
bond. It's been seven years. I seek to have
a normal life with my children and my husband
and to move forward just as [defendant] has
done. That is the reason why.
Defendant testified he had an extremely close relationship
with the children and was actively involved in their
extracurricular activities including dance, soccer, basketball,
and girl scouts, as well as school events, concerts, back to school
4 A-2353-15T2
nights, and projects, and he financially contributed to these
expenses as necessary. He briefly mentioned having done other
activities with the children such as nature walks, roller skating,
shopping, and going down to the shore.
Defendant testified that in the past year, he had overnight
parenting time approximately thirty times, and approximately
sixty-five to seventy-five times in a single year in past years.
Not counting overnights but simply seeing his children, he saw
them 166 days in 2015; 181 days in 2014; 139 days in 2013; 129
days in 2012; and 142 days in 2010. Defendant also testified that
in New Jersey, the children had the benefit of seeing members of
their extended family, including cousins, grandparents, aunts, and
uncles. Defendant said he could not relocate to Texas because his
family business and licenses are in New Jersey. He testified as
to the difficulty the parties had co-parenting their children,
such as agreeing to parenting times or scheduling events or
appointments during parenting time. His main concern with
relocating the children to Texas was losing touch with them, by
virtue of the distance and plaintiff "poisoning" the children.2
2 Regarding jurisdictional concerns, the parties consented to New
Jersey retaining jurisdiction in the event the court permitted
relocation.
5 A-2353-15T2
Finding that the plaintiff was the children's primary
caretaker, the court concluded that Baures controlled, not
O'Connor v. O'Connor, 349 N.J. Super. 381 (App. Div. 2002), which
governs relocation in shared parenting situations. The court then
analyzed the Baures factors, and made the following findings:
(1) The reasons given for the move:
[Plaintiff] desires to relocate to Texas with
her new husband where his step-children live.
Unlike in the past couple of years when this
matter has come to the court before, we now
have a secured living situation where a home
has been rented with adequate room for all of
the children. She has a job lined up. Based
upon the testimony before this [c]ourt, that
job is still available. So, she is remarried.
They have a place to live. She has a job
lined up. Her husband is employed.
(2) The reasons given for the opposition:
[Defendant is] a good guy. He works hard. He
loves his daughters. He tries to make the
best of a difficult situation where mother and
father are not together anymore. He spends
time with his daughters. He makes sure that
he has a nice home for his daughters when they
come over. He encourages and fosters his
daughters' relationship with their mother
despite the conflict between the parties.
There's an extended family here, aunts,
uncles, cousins. There are valid reasons
given for the opposition.
[T]here are significant, valid 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: There is a history of at
least alleged domestic violence between the
6 A-2353-15T2
parties notwithstanding the fact that any
previous temporary restraining orders have
been dismissed. There's a history of conflict
between the parties, a lack of cooperation,
agreement with respect to the children's
health and welfare as in some ways respects
the parents personal preferences because as I
will continue to say and repeat despite the
circumstances, they have two wonderful,
intelligent, bright . . . children who appear
to be thriving . . . . Mother had her reasons
for leaving. Father has his valid reasons for
them to stay.
(4) Whether the child will receive
educational, health and leisure opportunities
at least equal to what is available here:
There is not much in the parties' submissions
with respect to information that the [c]ourt
can for inference take judicial notice of with
regard to the demographics between New Jersey
and the area that [plaintiff] intends on
moving to in Texas, but I give credibility to
. . . plaintiff's position in this case
certainly with a stable home life. The most
important factor is in the children's
education which is the involvement with the
parents and their encouragement. I am
satisfied that the children will receive
educational, health and leisure opportunity at
least equal to what is available to them 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: There is no particular
special need that has been submitted by either
of the parties. Thankfully, what we have here
are two children that appear can absolutely
thrive, achieve and accomplish in any
situation.
(6) Whether a visitation and communication
schedule can be developed that will allow then
noncustodial parent to maintain a full and
7 A-2353-15T2
continuous relationship with the child: I give
weight and credibility to . . . plaintiff's
position that there will be additional time
afforded to [defendant] if the [c]ourt permits
the move. I am concerned about [defendant]'s
stated reluctance to travel to Texas if I
allow the move because of a past, . . . history
of alleged threats against him by
[plaintiff]'s new husband. [Defendant] should
be undeterred by that. If I allow the move
nothing should deter him from spending time
with his children. And if the [c]ourt allows
the move, the [c]ourt will enter an order that
requires [plaintiff] to bring the children to
New Jersey, . . . the circumstances under
which that will occur. And certainly if the
move is allowed, that [defendant] is given
financial consideration here, if he so
chooses, when he wants to with reasonable
notice should be allowed access to and contact
with the children any time he wants.
(7) The likelihood that the custodial parent
will continue to foster the child's
relationship with the noncustodial parent if
the move is allowed:3
(8) The effect of the move on extended family
relationships here and in the new location:
With respect to the [e]ffect of the move on
extended family and relationships here, I have
heard testimony from [M.T.] in particular with
regard to relationships with [defendant] and
his family. And of course I have extended
family and I can see from the expressions on
their faces, I can infer they're not just here
as window dressing, they're here because they
care about the children and they are
supportive of [defendant].
(9) If the child is of age, his or her
preference: We are dealing with a very
bright, very vibrant 13-year-old young lady
3 The judge made no separate findings on factor 7.
8 A-2353-15T2
who is moving on with her teenage years and a
9-year-old in the fourth grade. I do give
weight, I do give weight to their preferences.
[M.T.] is somewhat more excited at the
prospect of going to Texas. She is of course
four years older than [A.T.], more mature. I
have some added concern with [A.T.]. She's
very attached to her father but at the same
time, she also likes to visit with her step-
brothers, had enjoyed going down to Texas. I
think it's understandable that [M.T.] at her
age might be more reluctant, might be more
unsure, might be a little bit more nervous and
certainly wonders about what it will be like
being a substantial distance away from her
father.
(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: We
don't have to deal with that right now.
There's going to come a point though, and I
want to remind [defendant], your children are
13 and 9 . . . . Any order of the [c]ourt
here . . . [is] subject to modification after
a period [of] time given changed circumstances
and as the children grow older, their needs
change, their preferences change.
(11) Whether the noncustodial parent has the
ability to relocate: [Defendant] probably
could if he wanted to, but that would simply
devastate him both personally and financially
and rip him apart from his extended family and
the life that he has built here, the home that
he has built for the children. Does he have
the ability? I believe that he has the
financial ability to do so if he wanted to.
This [c]ourt understands the reluctance.
The [c]ourt understands what that would take.
But with respect to a determination as to
whether the non-custodial parent has the
ability, I don't know if he has the ability
9 A-2353-15T2
to make the move. His business is here. Is
he going to close up the business and his
livelihood to move to Texas, that would be in
the children's best interest? Next thing you
know[, plaintiff] is going to be on him to pay
more money in child support or for failing to
pay. I'm not going to do that to him. So I'm
not going to make a finding that he has the
ability to make the move. Certainly if he
wanted to, well I encourage that.
(12) Any other factor bearing on the child's
interest: The decision of the [c]ourt today
is not reflective of any personal feelings
about this case. The[re] are these enumerated
factors. This case based upon the facts
clearly falls within the standard under
Baures, clearly, without question.
The court concluded that plaintiff established a good faith reason
for the move under Baures, and the move would not be inimical to
the children's best interests. The court entered an order on
January 22, 2016, permitting plaintiff to relocate to Texas with
the children, and setting defendant's parenting time schedule.
This appeal followed.
Our review of a trial judge's factual findings, following a
non-jury trial, is limited. Elrom v. Elrom, 439 N.J. Super. 424,
433 (App. Div. 2015). "Generally, 'findings by the trial court
are binding on appeal when supported by adequate, substantial,
credible evidence.'" Ibid. (quoting Cesare v. Cesare, 154 N.J.
394, 411-12 (1998)). In matrimonial matters, this "[d]eference
is especially appropriate when the evidence is largely testimonial
10 A-2353-15T2
and involves questions of credibility." Cesare, supra, 154 N.J.
at 412 (citation omitted). "Reversal is warranted only when a
mistake must have been made because the trial court's factual
findings are 'so manifestly unsupported by or inconsistent with
the competent, relevant and reasonably credible evidence as to
offend the interests of justice[.]'" Elrom, supra, 439 N.J. Super.
at 433 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of
Am., 65 N.J. 474, 484 (1974)). "Consequently, when a reviewing
court concludes there is satisfactory evidentiary support for the
trial court's findings, 'its task is complete and it should not
disturb the result[.]'" Ibid. (quoting Beck v. Beck, 86 N.J. 480,
496 (1981)). "Deference is appropriately accorded to factfinding;
however, the trial judge's legal conclusions, and the application
of those conclusions to the facts, are subject to our plenary
review." Ibid. (quoting Reese v. Weis, 430 N.J. Super. 552, 568
(App. Div. 2013)). "Finally, legal conclusions are always reviewed
de novo." Id. at 433-34 (citing Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
Defendant first argues that plaintiff failed to show she had
a good faith reason for relocating to Texas and that the children
will nor suffer harm as a result of the move. We disagree.
"[T]he party seeking to move, who has had an opportunity to
contemplate the issues, should initially produce evidence to
11 A-2353-15T2
establish prima facie that (1) there is a good faith reason for
the move and (2) that the move will not be inimical to the child's
interests." Baures, supra, 167 N.J. at 118. "[T]he burden of
production rests initially on the movant to make out a prima facie
showing on the good faith and harm to the child prongs[.]" Morgan
v. Morgan, 205 N.J. 50, 65 (2011) (citing ibid.). Such a showing
is established with evidence that, if unrebutted, would sustain a
judgment in the proponent's favor. As the Court has stated:
The initial burden of the moving party is not
a particularly onerous one. It will be met,
for example, by a custodial parent who shows
that he is seeking to move closer to a large
extended family that can help him raise his
child; that the child will have educational,
health and leisure opportunities at least
equal to that which is available here, and
that he has thought out a visitation schedule
that will allow the child to maintain his or
her relationship with the noncustodial parent.
[Baures, supra, 167 N.J. at 118.]
"Should the moving party meet the burden of production, the
noncustodial parent must then 'produce evidence opposing the move
as either not in good faith or inimical to the child[ren]'s
interest.'" Morgan, supra, 205 N.J. at 66 (quoting Baures, supra,
167 N.J. at 119).
The court did not err in determining that plaintiff
established a good faith reason to relocate with the children to
Texas and that the move would not be inimical to the children's
12 A-2353-15T2
interests. Baures applies in this case, and the court's factual
findings and conclusion that plaintiff met her burden of proof are
amply supported by the record. Cesare, supra, 154 N.J. at 412.
Defendant next argues that even if plaintiff had a good faith
reason to relocate, the Baures factors fall in his favor. However,
except to restate those factors, defendant makes no cognizable
argument about any error by the court or factual contradiction.
In many instances, he makes conclusory statements and does not
cite to the record. Nevertheless, we are satisfied the court's
Baures analysis was sound, and the Baures factors fell in
plaintiff's favor.
Defendant next argues that the court should have applied the
best interests of the child standard under O'Connor, and found
that it is in the children's best interests to remain in New
Jersey. This argument is without merit.
N.J.S.A. 9:2-2 provides as follows, in pertinent part:
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 against their own
consent, if of suitable age to signify the
same, nor while under that age without the
consent of both parents, unless the court,
upon cause shown, shall otherwise order.
13 A-2353-15T2
Upon finding that this statute applies, the court must then
determine the extant status of custody of the parties' children.
Barblock v. Barblock, 383 N.J. Super. 114, 121 (App. Div.), certif.
denied, 187 N.J. 81 (2006). If the evidence shows that one parent
serves as the primary caretaker, then Baures governs the custodial
parent's request to relocate the children. Ibid.
"If, conversely, the situation is a rare de facto 'shared
parenting' arrangement, one in which each parent essentially
performs an equal caretaking role, then the removal application
must be analyzed under the stricter change-of-custody test of"
O'Connor. Id. at 122. "The O'Connor standard hinges solely upon
an analysis of the best interests of the children, regardless of
the applicant's good faith motivation to relocate." Ibid. "In
such instances, 'the party seeking the change in the custodial
relationship must demonstrate that the best interests of the
child[ren] would be better served by residential custody being
vested primarily with the relocating parent.'" Ibid. (alteration
in original) (citing O'Connor, supra, 349 N.J. Super. at 398; Chen
v. Heller, 334 N.J. Super. 361, 380-82 (App. Div. 2000)).
As we have stated,
[i]n determining the applicable standard to
apply to plaintiff's removal application, the
primary inquiry is whether the physical
custodial relationship between plaintiff and
defendant is one where plaintiff is the
14 A-2353-15T2
"primary caretaker" and defendant is the
"secondary caretaker," or, whether these
parties truly share both legal and physical
custody.
In discussing the criteria or factors to
be used in determining that question, the
Court stated:
Although both [primary caretaker
and secondary caretaker] roles
create responsibility over children
of divorce, the primary caretaker
has the greater physical and
emotional role. Because the role of
"primary caretaker" can be filled by
men or women, the concept has gained
widespread acceptance in custody
determinations.
. . . .
Although "time" is a critical factor to
consider in determining the presence of a
joint physical custodial relationship, we
emphasize the importance of analyzing the
division of time in the context of each
party's responsibility for the custodial
functions, responsibilities and duties
normally reposed in the primary caretaker[.]
[O'Connor, supra, 349 N.J. Super. at 398-400
(quoting Pascale v. Pascale, 140 N.J. 583,
598-99 (1995)).]
Here, plaintiff was the children's physical custodian and
primary caretaker. Defendant's overnight parenting time every
other weekend and his involvement in the children's schooling and
activities did not establish a de facto shared parenting
arrangement warranting application of O'Connor. Morgan, supra,
205 N.J. at 67.
15 A-2353-15T2
Lastly, defendant argues that we should remand this matter
for findings of fact and conclusions of law consistent with
N.J.S.A. 9:2-4, and direct the trial court to apply the best
interests of the child standard as it would in any change of
custody case.4 We decline to do so.
N.J.S.A. 9:2-4 applies to an initial custody determination
where the court must consider certain factors in making a custody
award. "A removal case is entirely different from an initial
custody determination. When initial custody is decided, either
by judicial ruling or by settlement, the ultimate judgment is
squarely dependent on what is in the child's best interests."
Baures, supra, 167 N.J. at 115 (citation omitted). In a removal
case, the parents' interests take on importance, but the conflict
in a removal case is not purely between the parents' needs and
desires. Ibid. Rather, it is a conflict based on the extent to
which the parents' needs and desires can be viewed as intertwined
4 We decline to address defendant's additional arguments that
plaintiff failed to show that she had re-married and had a place
to live in Texas, and failed to produce competent, relevant
evidence to prove where she and the children would actually live
in Texas. We also decline to address defendant's arguments
relating to plaintiff's testimony. Defendant did not raise these
arguments or object to plaintiff's testimony before the trial
court, and these issues do not go to the court's jurisdiction or
concern a matter of public importance. R. 2:5-4; Zaman v. Felton,
219 N.J. 199, 226-27 (2014) (citation omitted). More importantly,
defendant does not articulate any error by the court in assessing
plaintiff's testimony or the evidence.
16 A-2353-15T2
with the child's interests. Ibid. Differences between these two
standards exist because the "pure best-interests standard" "would
always, or nearly always, break in favor of keeping the child in
proximity to two fit parents, thus chaining the custodial parent,
who bears the laboring oar of child rearing, to New Jersey, while
permitting the noncustodial parent free movement." Morgan, supra,
205 N.J. at 65.
This is a removal case, not an initial or change in custody
case. Accordingly, N.J.S.A. 9:2-4 and the best interests of the
child standard do not apply. Baures applies, and plaintiff proved
that she had a good faith reason for the move and the move would
not be inimical to the children's best interests.
Affirmed.
17 A-2353-15T2