RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1168-18T4
A.J.,
Plaintiff-Appellant, APPROVED FOR PUBLICATION
v. October 7, 2019
APPELLATE DIVISION R.J.,1
Defendant-Respondent. ______________________________
Submitted September 11, 2019 – Decided October 7, 2019
Before Judges Koblitz, Whipple, and Mawla.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-0954-13.
Ross & Calandrillo, LLC, attorneys for appellant (Elizabeth Calandrillo, of counsel and on the briefs).
Andrew M. Wolfenson, attorney for respondent.
The opinion of the court was delivered by
MAWLA, J.A.D.
1 We use initials to protect the privacy of the parties and their children. Plaintiff A.J. appeals from a September 28, 2018 order sanctioning her
by transferring custody of the parties' children to defendant R.J., for failure to
comply with a prior order related to her unilateral intra-state relocation. We
hold in cases where a court exercises its authority pursuant to Rules 1:10-3 and
5:3-7(a)(6), it must make findings under N.J.S.A. 9:2-4 that the sanction
imposed is in the best interests of the children. We further hold the factors in
Baures v. Lewis, 167 N.J. 91 (2001) no longer apply when a court is
addressing an intra-state relocation, and instead, pursuant to Bisbing v.
Bisbing, 230 N.J. 309 (2017), the court must apply N.J.S.A. 9:2-4. Because
the trial judge applied the wrong law related to the intra-state relocation and
did not apply N.J.S.A. 9:2-4 when he sanctioned plaintiff, we reverse and
remand for further proceedings consistent with this opinion.
We take the following facts from the record. The parties married in
2008, and divorced in 2013. Two children were born of the marriage who are
presently ten and eight years of age. The judgment of divorce incorporated a
marital settlement agreement (MSA), which designated plaintiff as the parent
of primary residence, and granted defendant parenting time every other
weekend from Friday to Saturday and one midweek overnight. The parties
also agreed to share the holidays and each enjoyed one week of summer
vacation with the children.
A-1168-18T4 2 Post-judgment, plaintiff remarried and had a third child. She, her
husband, and the three children resided in a two bedroom apartment in
Elizabeth. Plaintiff was employed as a tenured school teacher in Elizabeth.
Defendant was employed in New York City and lived in Union.
This dispute began in March 2018, when plaintiff unilaterally moved
with the children from Elizabeth to Mount Holly. Prior to the move, the
parties only had one text conversation in July 2017, in which defendant stated
the children informed him plaintiff was contemplating a move. During the
exchange, plaintiff confirmed she wished to move and was searching locally
and as far as Mount Laurel. Defendant asked her to remain local because it
would be unfair to him and the children to move far away.
Plaintiff moved in March 2018, because her landlord increased the rent
and would not give her additional time to search for another residence before
doing so. She searched without success for a suitable residence in Elizabeth,
Somerset, and Florence. Ultimately, plaintiff moved 62.3 miles away from
defendant to Mount Holly, where she had family. Defendant learned of the
move several days later by text message. He filed an order to show cause to
bar the relocation and modify custody. The trial judge entered an order on
May 14, 2018, granting defendant temporary parenting time three weekends
each month, ordering mediation, and scheduling a plenary hearing to determine
A-1168-18T4 3 whether plaintiff would be permitted to remain in Mount Holly. The judge
ordered the children to continue attending school in Elizabeth.
Mediation was unsuccessful. The judge conducted a plenary hearing
resulting in the entry of a July 16, 2018 order. He concluded in his written
decision that before the start of the 2018-19 school year, plaintiff had to return
with the children and reside within fifteen miles of Union. Pending plaintiff's
return, the judge directed the parties to abide by the temporary parenting time
established under the May order. Once plaintiff returned, defendant's
parenting time would revert to the schedule in the MSA.
Significantly, although the judge's decision recognized "Baures . . . has
since been overruled by Bisbing," his reasoning relied upon our decision in
Schulze v. Morris, 361 N.J. Super. 419 (App. Div. 2003), which applied the
Baures factors to determine whether a parent could relocate intra-state.
Applying a preponderance of the Baures factors, the trial judge explained
"[p]laintiff's decision may not have been solely driven by a desire to alienate
the children from their father, but was certainly done in wanton disregard of
his rights, with the result being that his relationship with them will clearly
suffer." The judge concluded the distance between the parties' residences
increased the travel time from "minutes away" to "slightly over an hour[.]"
The judge noted if the children resided in Mount Holly defendant could no
A-1168-18T4 4 longer leave work early to tend to a sick child, enjoy additional parenting time,
or attend extracurricular activities as he had in the past. The judge found the
surreptitious nature of the move belied plaintiff's explanation that she did not
inform defendant because she did not have time.
The judge concluded it was not in the best interests of the children to
relocate because the move would be "deleterious to the relationship with
[defendant.]" He noted, because plaintiff remained employed in the Elizabeth
school district, neither parent would be near the children during the school
day. The judge found plaintiff "offered little or no testimony" as to whether
the Mount Holly schools were better for the children than the magnet schools
they attended in Elizabeth, where the children had excelled academically. The
judge also noted the parties' eldest child experienced behavioral issues and the
relocation away from defendant would harm the child because defendant could
not "be there for his son as he goes through these issues[.]"
Plaintiff did not return. Defendant filed an order to show cause seeking
enforcement of the July order. Specifically, he sought the court to compel
plaintiff and the children to return, a transfer of residential custody pending a
final determination of custody, and termination of his child support obligation.
The trial judge heard oral argument on September 28, 2018.
A-1168-18T4 5 Plaintiff's counsel argued it was impossible for plaintiff to comply with
the July order because she signed a lease for the residence in Mount Holly
through April 2019, and could not afford both a lease in Mount Holly and a
second residence within the court-ordered radius. The judge rejected
plaintiff's argument in his oral findings, noting her improper relocation to
Mount Holly created the difficult situation from which she sought relief.
Pertinent to the issues raised in this appeal, the judge found defendant
met his burden pursuant to Crowe v. De Gioia, 90 N.J. 126 (1982), and granted
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RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1168-18T4
A.J.,
Plaintiff-Appellant, APPROVED FOR PUBLICATION
v. October 7, 2019
APPELLATE DIVISION R.J.,1
Defendant-Respondent. ______________________________
Submitted September 11, 2019 – Decided October 7, 2019
Before Judges Koblitz, Whipple, and Mawla.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-0954-13.
Ross & Calandrillo, LLC, attorneys for appellant (Elizabeth Calandrillo, of counsel and on the briefs).
Andrew M. Wolfenson, attorney for respondent.
The opinion of the court was delivered by
MAWLA, J.A.D.
1 We use initials to protect the privacy of the parties and their children. Plaintiff A.J. appeals from a September 28, 2018 order sanctioning her
by transferring custody of the parties' children to defendant R.J., for failure to
comply with a prior order related to her unilateral intra-state relocation. We
hold in cases where a court exercises its authority pursuant to Rules 1:10-3 and
5:3-7(a)(6), it must make findings under N.J.S.A. 9:2-4 that the sanction
imposed is in the best interests of the children. We further hold the factors in
Baures v. Lewis, 167 N.J. 91 (2001) no longer apply when a court is
addressing an intra-state relocation, and instead, pursuant to Bisbing v.
Bisbing, 230 N.J. 309 (2017), the court must apply N.J.S.A. 9:2-4. Because
the trial judge applied the wrong law related to the intra-state relocation and
did not apply N.J.S.A. 9:2-4 when he sanctioned plaintiff, we reverse and
remand for further proceedings consistent with this opinion.
We take the following facts from the record. The parties married in
2008, and divorced in 2013. Two children were born of the marriage who are
presently ten and eight years of age. The judgment of divorce incorporated a
marital settlement agreement (MSA), which designated plaintiff as the parent
of primary residence, and granted defendant parenting time every other
weekend from Friday to Saturday and one midweek overnight. The parties
also agreed to share the holidays and each enjoyed one week of summer
vacation with the children.
A-1168-18T4 2 Post-judgment, plaintiff remarried and had a third child. She, her
husband, and the three children resided in a two bedroom apartment in
Elizabeth. Plaintiff was employed as a tenured school teacher in Elizabeth.
Defendant was employed in New York City and lived in Union.
This dispute began in March 2018, when plaintiff unilaterally moved
with the children from Elizabeth to Mount Holly. Prior to the move, the
parties only had one text conversation in July 2017, in which defendant stated
the children informed him plaintiff was contemplating a move. During the
exchange, plaintiff confirmed she wished to move and was searching locally
and as far as Mount Laurel. Defendant asked her to remain local because it
would be unfair to him and the children to move far away.
Plaintiff moved in March 2018, because her landlord increased the rent
and would not give her additional time to search for another residence before
doing so. She searched without success for a suitable residence in Elizabeth,
Somerset, and Florence. Ultimately, plaintiff moved 62.3 miles away from
defendant to Mount Holly, where she had family. Defendant learned of the
move several days later by text message. He filed an order to show cause to
bar the relocation and modify custody. The trial judge entered an order on
May 14, 2018, granting defendant temporary parenting time three weekends
each month, ordering mediation, and scheduling a plenary hearing to determine
A-1168-18T4 3 whether plaintiff would be permitted to remain in Mount Holly. The judge
ordered the children to continue attending school in Elizabeth.
Mediation was unsuccessful. The judge conducted a plenary hearing
resulting in the entry of a July 16, 2018 order. He concluded in his written
decision that before the start of the 2018-19 school year, plaintiff had to return
with the children and reside within fifteen miles of Union. Pending plaintiff's
return, the judge directed the parties to abide by the temporary parenting time
established under the May order. Once plaintiff returned, defendant's
parenting time would revert to the schedule in the MSA.
Significantly, although the judge's decision recognized "Baures . . . has
since been overruled by Bisbing," his reasoning relied upon our decision in
Schulze v. Morris, 361 N.J. Super. 419 (App. Div. 2003), which applied the
Baures factors to determine whether a parent could relocate intra-state.
Applying a preponderance of the Baures factors, the trial judge explained
"[p]laintiff's decision may not have been solely driven by a desire to alienate
the children from their father, but was certainly done in wanton disregard of
his rights, with the result being that his relationship with them will clearly
suffer." The judge concluded the distance between the parties' residences
increased the travel time from "minutes away" to "slightly over an hour[.]"
The judge noted if the children resided in Mount Holly defendant could no
A-1168-18T4 4 longer leave work early to tend to a sick child, enjoy additional parenting time,
or attend extracurricular activities as he had in the past. The judge found the
surreptitious nature of the move belied plaintiff's explanation that she did not
inform defendant because she did not have time.
The judge concluded it was not in the best interests of the children to
relocate because the move would be "deleterious to the relationship with
[defendant.]" He noted, because plaintiff remained employed in the Elizabeth
school district, neither parent would be near the children during the school
day. The judge found plaintiff "offered little or no testimony" as to whether
the Mount Holly schools were better for the children than the magnet schools
they attended in Elizabeth, where the children had excelled academically. The
judge also noted the parties' eldest child experienced behavioral issues and the
relocation away from defendant would harm the child because defendant could
not "be there for his son as he goes through these issues[.]"
Plaintiff did not return. Defendant filed an order to show cause seeking
enforcement of the July order. Specifically, he sought the court to compel
plaintiff and the children to return, a transfer of residential custody pending a
final determination of custody, and termination of his child support obligation.
The trial judge heard oral argument on September 28, 2018.
A-1168-18T4 5 Plaintiff's counsel argued it was impossible for plaintiff to comply with
the July order because she signed a lease for the residence in Mount Holly
through April 2019, and could not afford both a lease in Mount Holly and a
second residence within the court-ordered radius. The judge rejected
plaintiff's argument in his oral findings, noting her improper relocation to
Mount Holly created the difficult situation from which she sought relief.
Pertinent to the issues raised in this appeal, the judge found defendant
met his burden pursuant to Crowe v. De Gioia, 90 N.J. 126 (1982), and granted
defendant's order to show cause. The judge stated "the issue is the best interest
of the children." He further stated:
So we have an order of the [c]ourt that has clearly been violated.
[Plaintiff's counsel] makes a point, of course, that the [c]ourt at the last hearing didn't necessarily make a best-interest determination as to changing custody of the children. And I did so because [defendant] came across as a very credible witness. He was very honest about saying the fact that he really wasn't seeking that. I think as my decision reflects from the earlier hearing, I was satisfied that we have a good mother and a good father and that the children would be . . . benefitted if they stayed within a certain radius. . . .
....
Although I didn't make a best-interest finding at the time, quite frankly, the [c]ourt would have no . . . hesitancy in doing so since I found that both parents
A-1168-18T4 6 were fit, both of them have well-bonded relationships with the children, and that the children needed both of them in their lives.
When plaintiff's counsel reiterated her client could not comply with the
order due to the economic hardship it would cause, the judge concluded as
follows:
[Defendant] is entitled under Rule 1:10-3 to seek redress from this [c]ourt. The [c]ourt can employ [Rule] 1:10-3. In addition, Rule 5:3-7 provides this [c]ourt with a panoply of relief, including transferring the children.
I do find it's in the best interest of the children to continue to be near their father and have visitation with their mother.
The judge entered the September 28, 2018 order. This appeal followed. 2
I.
"The general rule is that findings by the trial court are binding on appeal
when supported by adequate, substantial, credible evidence. Deference is
especially appropriate 'when the evidence is largely testimonial and involves
questions of credibility.'" Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)
(internal citation omitted) (quoting In re Return of Weapons to J.W.D., 149
2 Following the filing of plaintiff's notice of appeal, the trial judge issued an amplification of his decision pursuant to Rule 2:5-1(b).
A-1168-18T4 7 N.J. 108, 117 (1997)). "On the other hand, where our review addresses
questions of law, a 'trial judge's findings are not entitled to that same degree of
deference if they are based upon a misunderstanding of the applicable legal
principles.'" N.T.B. v. D.D.B., 442 N.J. Super. 205, 215 (App. Div. 2015)
(quoting N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427,
434 (App. Div. 2002)). The standard of review for conclusions of law is de
novo. S.D. v. M.J.R., 415 N.J. Super. 417, 430 (App. Div. 2010) (citing
Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378
(1995)).
On appeal, plaintiff argues the trial judge changed custody without
holding a best interests hearing and without warning plaintiff custody would
modify if she did not return. She argues there was no change in circumstances
since entry of the July order warranting a modification of custody and the
judge did not consider alternative remedies.
Plaintiff also argues the judge applied the wrong standard in adjudicating
the intra-state relocation issue. She argues the judge rewrote the MSA by
imposing a fifteen-mile radius where the parties had not previously agreed to
one. She asserts the judge acted arbitrarily and capriciously and the matter
should be remanded to a different fact-finder.
A-1168-18T4 8 A.
"Notwithstanding that an act or omission may also constitute a contempt
of court, a litigant in any action may seek relief by an application in the
action. . . . In family actions, the court may also grant additional remedies as
provided by [Rule] 5:3-7." R. 1:10-3. "Relief under R[ule] 1:10-3, whether it
be the imposition of incarceration or a sanction, is not for the purpose of
punishment, but as a coercive measure to facilitate the enforcement of the
court order." Ridley v. Dennison, 298 N.J. Super. 373, 381 (App. Div. 1997).
In pertinent part, Rule 5:3-7(a) states:
On finding that a party has violated an order respecting custody or parenting time, the court may order, in addition to the remedies provided by R[ule] 1:10-3, any of the following remedies, either singly or in combination: . . . (6) temporary or permanent modification of the custodial arrangement provided such relief is in the best interest of the children[.]
[(emphasis added)].
Moreover,
[i]n custody cases, it is well settled that the court's primary consideration is the best interests of the children. . . . The court must focus on the "safety, happiness, physical, mental and moral welfare" of the children. Fantony v. Fantony, 21 N.J. 525, 536 (1956). See also P.T. v. M.S., 325 N.J. Super. 193, 215 (App. Div. 1999) ("In issues of custody and visitation '[t]he question is always what is in the best interests of the children, no matter what the parties have agreed to.'") . . . Custody issues are resolved
A-1168-18T4 9 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) (citations omitted)].
Pursuant to Rule 5:3-7(a)(6), there is no question the trial judge had
authority to transfer custody to defendant as a sanction for plaintiff's failure to
comply with the July order mandating she return the children. Contrary to
plaintiff's argument, the plain language of Rule 5:3-7(a) does not require the
court select a less severe sanction before it can order a modification of
custody. However, we hold Rule 5:3-7(a)(6) requires a separate adjudication,
which considers the children's best interests and findings pursuant to N.J.S.A.
9:2-4, before the sanction is ordered. Additionally, because the relief granted
under Rule 5:3-7(a) is coercive in nature and derived from Rule 1:10-3, the
sanctioned parent may seek termination of the sanction when the parent
complies with the court's order. The court should be solicitous of such
applications.
This is because custody matters directly impact the welfare of children.
The designation of a parent of primary residence is a consequential decision
because "the primary caretaker has the greater physical and emotional role" in
a child's life. Pascale v. Pascale, 140 N.J. 583, 598 (1995). Where there is
already a judgment or an agreement affecting custody in place, it is presumed
A-1168-18T4 10 it "embodies a best interests determination" and should be modified only
where there is a "showing [of] changed circumstances which would affect the
welfare of the children." Todd v. Sheridan, 268 N.J. Super. 387, 398 (App.
Div. 1993). In the context of a transfer of child custody as a sanction,
affording both parents the ability to address whether a transfer of custody is i n
the best interests of the children and requiring the court to make the necessary
statutory findings provides the necessary process and a reviewable record.
Therefore, a best-interest hearing and findings pursuant to N.J.S.A. 9:2-4 is
required where a court transfers custody as a sanction.
Here, the trial judge did not consider the N.J.S.A. 9:2-4 best-interest
factors before transferring custody to defendant. The judge noted defendant
did not "really" seek custody of the children. Notwithstanding defend ant's
exercise of parenting time under the MSA and good relationship with the
children, the parties agreed plaintiff would serve as the parent of primary
residence when they divorced and plaintiff fulfilled the role without incident
for five years following the divorce. In this context, the best interests of the
children required more thoughtful investigation before the judge ordered a
custody transfer. For these reasons, we reverse the September order and
remand the matter to the trial judge to hold a hearing and make the necessary
best-interest findings.
A-1168-18T4 11 B.
We also reverse the July order because the trial judge applied the wrong
law. The trial judge applied our holding in Schulze, which requires the
application of the Baures factors to address whether a parent may proceed with
an intra-state relocation. Schulze, 361 N.J. Super. at 427. However, at the
time the judge rendered his decision, our Supreme Court already spoke in
Bisbing, overturned the Baures standard, and held the best-interest standard
embodied in N.J.S.A. 9:2-4 governs interstate removal of children. Bisbing,
230 N.J. 309, 312-13.
In overturning Baures, our Supreme Court stated:
In short, social scientists who have studied the impact of relocation on children following divorce have not reached a consensus. Instead, the vigorous scholarly debate reveals that relocation may affect children in many different ways. The Court's conclusion in Baures . . . that in general, "what is good for the custodial parent is good for the child" is no doubt correct with regard to some families following a divorce. . . . As the social science literature reflects, however, that statement is not universally true; a relocation far away from a parent may have a significant adverse effect on a child. . . .
Moreover, the progression in the law toward recognition of a parent of primary residence's presumptive right to relocate with children, anticipated by this Court in Baures, has not materialized.
[Bisbing v. Bisbing, 230 N.J. 309, 330 (2017).]
A-1168-18T4 12 Because the science and anticipated outcomes undergirding the Baures
factors have not borne out as the Court anticipated and no longer apply to
interstate removals, they should not apply to the intra-state relocations
discussed in Schulze. Although, as the trial judge noted, the July order was
not appealed, its application of the wrong law produced the unsound
foundation upon which the later transfer of custody rests. See N. Jersey
Neurosurgical Assocs., PA v. Clarendon Nat'l Ins. Co., 401 N.J. Super. 186,
196 (App. Div. 2008) (addressing an order not on appeal because the order on
appeal was "premised on" a mistake of law in the earlier order).
For these reasons, we reverse the July order and direct the trial judge to
reconsider his decision by applying the best interests factors under N.J.S.A.
9:2-4.3 We further hold where a parent of primary residence seeks an intra -
state relocation and the parent of alternate residence opposes it, the parent of
alternate residence must convince the court the move constitutes a change in
3 Because we reversed the July order as a whole, we do not reach plaintiff's claim the judge rewrote the MSA by imposing a fifteen-mile radius of defendant's home in which she could reside. However, if the judge determines to re-impose such a restriction, he should make findings explaining his decision, as he did not do so in the July order.
A-1168-18T4 13 circumstance affecting the best interests of the children. 4 If a prima facie case
is established, the trial court must assess custody and parenting time, by
applying the N.J.S.A. 9:2-4 factors to determine whether the best interests of
the children requires a modification of one or both.
C.
Finally, we decline to remand this matter to a different judge because we
do not share the view the judge acted arbitrarily and capriciously. Indeed, the
transfer of custody is a remedy expressly permitted by Rule 5:3-7(a)(6). Our
review of the record does not convince us the mistaken application of law is
grounds for remand to a different judge.
Reversed and remanded. We do not retain jurisdiction.
4 We do not opine which parent must make the application to the court. However, in order to avoid a situation similar to this case, the obligation of each parent to keep the other apprised of a change in residence should be memorialized in writing regardless whether custody and parenting time are settled or adjudicated. This type of communication is not only common sense, but is the sort of communication envisioned by the Legislature as consonant with a child's best interests when it enacted N.J.S.A. 9:2-4, requiring the court to consider "the parents' ability to agree, communicate and cooperate in matters relating to the child[.]"
A-1168-18T4 14