MICHAEL MCHUGH VS. HEATHER MURPHY(FD-16-1923-09, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4981-15T3

MICHAEL MCHUGH,

Plaintiff-Respondent,

v.

HEATHER MURPHY,

Defendant-Appellant.
______________________________

Submitted May 3, 2017 – Decided July 14, 2017

Before Judges Manahan and Lisa.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Passaic
County, Docket No. FD-16-1923-09.

Cores & Associates, L.L.C., attorneys for
appellant (Amy Sara Cores, on the briefs).

Weinberger Law Group, L.L.C., attorneys for
respondent (Jessica Ragno Sprague, on the
brief).

PER CURIAM

Defendant Heather Murphy appeals from a June 14, 2016 custody

modification order allowing plaintiff Michael McHugh to relocate

to the State of Florida with the parties' minor child. We affirm.
 By way of background, the parties had a dating relationship

that began in 2005. A child was born in 2007. At the time of the

birth, the parties were living with plaintiff's parents.

Eventually, the relationship deteriorated, and on August 26, 2009,

the parties entered into a consent order to share joint legal and

physical custody of the child. Pursuant to the order, the child

would stay with defendant three nights a week, and with plaintiff

the other four nights.

Initially, plaintiff and defendant agreed that they, together

with the child and paternal grandparents, would move to Florida.

After defendant became involved in a romantic relationship, she

changed her position regarding the relocation plan and objected

to the child's removal to Florida.

Given defendant's objection, plaintiff moved for removal of

the parties' child. In response, defendant filed opposition and

a cross-motion. Plaintiff then filed a reply certification.

A plenary hearing was held over six non-contiguous days. The

hearing included the testimony of the parties, two experts, and

both paternal grandparents. Both plaintiff and defendant

testified relative to the nature of the custodial relationship.

While plaintiff contended he was the parent of primary residence,

defendant countered that the parties had a residential custody

arrangement where each parent shared equally in parenting time and

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parenting decisions. Finding both parties credible, the judge

determined that both parties assumed parental responsibilities and

shared quality time with their child. Accordingly, the judge

found the parties' parenting arrangement to be a "true shared"

custodial relationship. As such, the applicable standard was the

best interests of the child.

Plaintiff's expert psychologist, Dr. Lee Monday, opined that

the parties did not share a true joint parenting relationship,

that plaintiff was the parent of primary residence, and that the

child would not suffer from the relocation. The court appointed

expert psychologist, Dr. Erik Dranoff, testified that it would be

in the child's best interest to remain in New Jersey and continue

the joint custodial residential relationship. Dranoff

acknowledged however that his opinion would have differed had he

been aware that defendant initially agreed to the relocation, and

that the child was advised that the family, including the

grandparents, were moving to Florida.

Both Monday and Dranoff testified that plaintiff had a

stronger bond with the child, but the child would benefit from

continued contact with both parents on a regular basis. They also

testified that the child had a close relationship with his paternal

grandparents.

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 The paternal grandparents each testified regarding the

family’s plan to move to Florida. Plaintiff's father noted that

he altered his original retirement plan to relocate to North

Carolina after being advised by plaintiff and defendant that they

were interested in moving to Florida.

At the conclusion of the hearing, the judge issued an oral

decision granting custody to plaintiff, which was memorialized in

an accompanying order. The judge denied defendant's motion for a

stay pending appeal. Defendant filed a notice of appeal. Upon

motion, we denied defendant's request for a stay.1

Defendant raises the following arguments on appeal:

POINT I

THE TRIAL COURT FAILED TO GIVE APPROPRIATE
WEIGHT TO THE COURT APPOINTED EXPERT'S OPINION
REGARDING THE BEST INTEREST OF THE CHILD AND
INAPPROPRIATELY HELD THAT THE EXPERT'S
OPINIONS WERE PREDICATED ON INACCURATE FACT
FINDING.

POINT II

THE TRIAL COURT ERRED AS A MATTER OF LAW IN
FAILING TO MAKE A FINDING THAT PRIMARY CUSTODY
OF THE PARTIES' CHILD SHOULD BE PLACED WITH

1
During the pendency of the appeal, plaintiff filed a motion to
strike defendant's appendix for failure to comply with the court
rules and a motion to require defendant to "submit an appendix in
compliance with the court rules" and to require defendant "to
remove any reference to the impermissible appendix portions within
her brief." We reserved decision. (Motion No. M-3353-16).

4 A-4981-15T3
 THE DEFENDANT-MOTHER OR THAT PHYSICAL CUSTODY
SHOULD REMAIN EQUAL.

POINT III

THE TRIAL COURT FAILED TO PROPERLY APPLY THE
STANDARD SET FORTH IN O'CONNOR2 AND MORGAN3 AND
BASE RELOCATION ON THE BEST INTEREST OF THE
CHILD.

POINT IV

THE TRIAL COURT MISAPPLIED ITS DISCRETION BY
ALLOWING THE MOVE TO PROCEED UNDER THE BAURES4
STANDARD, WHERE THE COURT FOUND THAT THE
PLAINTIFF AND HIS FAMILY WERE HOSTILE TO THE
DEFENDANT AND THERE WAS EXPERT TESTIMONY THAT
IT WAS NOT IN THE CHILD'S BEST INTEREST TO
MOVE BASED ON THE CONCLUSION THAT THE
PLAINTIFF-FATHER WOULD ALIENATE CHILD.

POINT V

THE TRIAL COURT FAILED TO SET FORTH IN ITS
ORDER FULLY AND SPECIFICALLY ALL TERMS AND
CONDITIONS RELATING TO THE AWARD OF CUSTODY
AND PROPER SUPPORT FOR THE CHILD IN VIOLATION
OF RULE 5:8-5(B). (NOT RAISED BELOW)

We have considered these arguments in light of the record and

applicable legal standards. We affirm substantially for the

reasons articulated by Judge Justine A. Niccollai in her

comprehensive and thoughtful oral opinion. We add only the

following.

2
O'Connor v. O'Connor, 349 N.J. Super. 381 (App. Div. 2002).
3
Morgan v. Morgan, 205 N.J. 50 (2011).
4
Baures v. Lewis, 167 N.J. 91 (2001).

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 "The scope of appellate review of a trial court's fact-finding

function is limited. 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. of Am., 65 N.J. 474, 484 (1974)). Deference is particularly

appropriate with respect to credibility determinations based on

witness testimony, since the court had the ability to see and hear

the witnesses, and with respect to family court fact-finding, due

to "the family courts' special jurisdiction and expertise in family

matters." Id. at 412-13. "Consequently, we 'should not disturb

the factual findings and legal conclusions of the trial judge

unless . . . 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' or . . .

determine the court has palpably abused its discretion." Parish

v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010) (quoting Cesare,

supra, 154 N.J. at 412).

Preliminarily, the judge found, based on the parents' equal

assumption of parental responsibilities, that the application was

one for custody modification as opposed to one for removal.

Morgan, supra, 205 N.J. at 64. In reaching this determination,

the judge thoroughly analyzed the parenting arrangement and

6 A-4981-15T3
assessed the involvement of each parent. We are satisfied that

the judge’s finding that the parties shared jointly both legal and

physical custody of their child was supported by substantial,

credible evidence in the record. As such, notwithstanding

plaintiff's removal application, the judge was required to apply

the standard employed for determining a change in custody. Id.

at 65.

"[T]he party seeking the change in the joint custodial

relationship must demonstrate that the best interests of the child

would be better served by residential custody being primarily

vested with the relocation parent." O'Connor, supra, 349 N.J.

Super. at 385. "The touchstone for all custody determinations has

always been 'the best interest[s] of the child.'" Faucett v.

Vasquez, 411 N.J. Super. 108, 118 (App. Div. 2009) (quoting

Kinsella v. Kinsella, 150 N.J. 276, 317 (1997), certif. denied,

203 N.J. 435 (2010)). "Custody issues are resolved using a best

interests analysis that gives weight to the factors set forth in

N.J.S.A. 9:2-4(c)." Hand v. Hand, 391 N.J. Super. 102, 105 (App.

Div. 2007). The statute requires that

[i]n making an award of custody, the court
shall consider but not be limited to the
following factors: 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

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 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.

[N.J.S.A. 9:2-4(c).]

When "the parents cannot agree to a custody arrangement, the

court may require each parent to submit a custody plan which the

court shall consider in awarding custody." N.J.S.A. 9:2-4(e).

Lastly, when making "any custody arrangement not agreed to by both

parents," the "court shall specifically place on the record the

factors which justify" its order. N.J.S.A. 9:2-4(f).

"[T]he decision concerning the type of custody arrangement

[is left] to the sound discretion of the trial court[.]" Nufrio

v. Nufrio, 341 N.J. Super. 548, 555 (App. Div. 2001) (second and

third alteration in original) (quoting Pascale v. Pascale, 140

N.J. 583, 611 (1995)). Therefore, on appeal "the opinion of the

trial judge in child custody matters is given great weight[.]"

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Terry v. Terry, 270 N.J. Super. 105, 118 (App. Div. 1994)

(citations omitted).

Initially, the judge found plaintiff's decision to move to

Florida constituted a substantial change in circumstances

warranting modification as "the parties will be unable to continue

with the true shared parenting arrangement." In arriving at the

custodial determination, the judge then analyzed the relevant

statutory factors.5 Pursuant to that analysis, the judge focused

on the "quality, not necessarily the quantity of factors" weighing

in favor of each party.

Relying upon the testimony of the experts, the judge

determined that plaintiff had a stronger bond with the child.

Notwithstanding, the judge recognized the child would benefit from

continued contact with both parents on a regular basis. Though

noting the limited weight afforded to this factor, the judge also

considered the child's desire to move to Florida. In reaching her

decision, the judge found significant to her determination the

issues with school tardiness and absenteeism during defendant's

5
Although the judge acknowledged it was unnecessary to address
the Baures factors, the judge found that in application of those
factors, removal of the child to Florida would be appropriate.
The Baures standard is only applicable in instances where the
relocating parent is the parent of primary residence. See
O'Connor, supra, 349 N.J. Super. at 398.

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parenting time. The judge also found the testimony of both parties

credible that, when involving the issue of education, the child

was responsive to plaintiff's parenting techniques.

In sum, having considered the record as well as the weight

we afford to custodial decisions made by Family Part judges, we

discern no basis to disturb the decision to modify custody and to

permit the relocation of plaintiff with the parties’ child to

Florida.

We next address plaintiff's motion. Defendant acknowledges

that the disputed items in her appendix were not part of the trial

record. We ordinarily do not consider evidentiary material not

part of "the record developed before the trial court." Davis v.

Devereux Found., 209 N.J. 269, 296 n.8 (2012); see R. 2:5-4(a).

As such, finding no basis to deviate from the ordinary scope of

our review, we grant plaintiff’s motion to strike those items from

the appendix. Consistent therewith, we have not considered those

items in reaching our decision on the merits.

Finally, to the extent not specifically addressed herein, we

conclude defendant's remaining arguments lack sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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