NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5047-14T1
JAIME TAORMINA BISBING, APPROVED FOR PUBLICATION Plaintiff-Respondent, April 6, 2016 v. APPELLATE DIVISION
GLENN R. BISBING, III,
Defendant-Appellant. __________________________
Argued March 2, 2016 — Decided April 6, 2016
Before Judges Fuentes, Koblitz, and Gilson.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-324-14.
Matheu D. Nunn argued the cause for appellant (Einhorn, Harris, Ascher, Barbarito & Frost, PC, attorneys; Mr. Nunn, of counsel; Mr. Nunn and Bonnie C. Frost, on the brief).
Paul H. Townsend argued the cause for respondent (Townsend, Tomaio & Newmark, LLC, attorneys; Mr. Townsend, of counsel; Mr. Townsend, Maria A. Giammona, and Valerie R. Wane, on the brief).
The opinion of the court was delivered by
KOBLITZ, J.A.D.
In this appeal, we examine the effect of a non-relocation
agreement on a subsequent request by the primary custodial parent to relocate to a distant state. Defendant Glenn R.
Bisbing, III1 appeals from the Family Part's April 24, 2015 and
July 14, 2015 orders allowing his former wife, plaintiff Jaime
Taormina Bisbing, to relocate with the parties' then eight-year-
old twin girls without first holding a plenary hearing. We
reverse and remand for a plenary hearing.
The parties were married in 2005 and the girls were born in
November 2006. Both parties were employed as highly-paid
professionals, with Jaime earning more money than Glenn.
In early 2013, Glenn investigated job opportunities in
Colorado and California. The parties separated in August, and
in November of that year, Jaime began a long-distance
relationship with a resident of Utah who had children from a
previous marriage. The Utah resident is the owner of a business
in Idaho and also has business interests that require him to
travel frequently to California and Louisiana.
On March 8, 2014, the parties entered into a marital
settlement agreement (MSA) following the parties' participation,
without counsel, in mediation with an attorney-mediator. The
parties agreed to joint legal custody. They agreed that Jaime
would have primary residential custody, with the condition that
she not relocate out of state.
1 We will call the parties by their first names for ease of reference. No disrespect is intended.
2 A-5047-14T1 Pursuant to Article 1.2 of the MSA, Jaime also agreed to
"broad, reasonable and liberal timesharing" of the children with
Glenn. Glenn was provided parenting time with his daughters on
Father's Day, Glenn's birthday, "every other weekend and on one
weeknight during the weeks when he does not have parenting
time." Glenn had parenting time on two continuous weeks during
the summer; and every other Thanksgiving, Christmas Eve,
Christmas Day, New Year's Eve, New Year's Day, and the
children's school breaks. Under Article 1.3, both parties were
also "entitled to attend all of the Children's sporting and
extracurricular activities no matter whose parenting day they
might fall on."
Article 1.9 Relocation provides the following terms
regarding a change of residence:
The parties agree that each shall inform the other with respect to any change of residence concerning himself or herself or the said minor Children for the period of time wherein any provision contained in this Agreement remains unfulfilled. The parties represent that they both will make every effort to remain in close proximity, within a fifteen (15) minute drive from the other. Neither party shall permanently relocate with the Children from the State of New Jersey without the prior written consent of the other. Neither parent shall relocate intrastate further than 20 miles from the other party. In the event either party relocates more than 20 miles from the other party, the parties agree to return to mediation to review the custody arrangement. In the event a job would necessitate a move,
3 A-5047-14T1 the parties agree to discuss this together and neither will make a unilateral decision. Neither party shall travel with the minor Children outside of the United States without the prior written consent of the other party.
The parties hereby acknowledge that the Children's quality of life and style of life are provided equally by Husband and Wife.
The parties hereby acknowledge a direct causal connection between the frequency and duration of the Children's contact with both parties and the quality of the relationship of the Children and each party.
The parties hereby acknowledge that any proposed move that relocates the Children any further away from either party may have a detrimental impact upon the frequency and duration of the contact between the Children and the non-moving party.
On April 16, 2014, a final judgment of divorce (JOD) was
entered incorporating the MSA. According to Glenn, after the
divorce, he was "intricately involved in all aspects of the
girls' lives." He coached their soccer team, took them to ski
club activities, and attended their school events.
One month after the divorce, Jaime sent an e-mail to Glenn
informing him that, although she received no alimony, she was
planning to leave her job on July 1, 2014, to become a full-time
stay-at-home parent, which she did.
On January 8, 2015, less than nine months after the
divorce, Jaime called Glenn to notify him of her intention to
get married to the Utah resident and relocate to Utah. Jaime
4 A-5047-14T1 asked for Glenn's permission to move with their daughters to
Utah. Glenn refused, stating, "You can move, just leave the
girls with me."
On March 16, eleven months after the divorce, Jaime filed a
motion seeking to relocate with the children to Utah without the
need for a plenary hearing. The court granted the motion
allowing relocation without holding a plenary hearing on the
condition that a visitation schedule be established through
mediation, signing the order on April 24, 2015. On July 14,
2015, after an unsuccessful mediation, with only Jaime
suggesting a parenting plan, the court issued a supplemental
order establishing a parenting time and communication schedule
using most of Jaime's suggestions.2
Eleven days later, Jaime and the children "left for a
vacation to Utah." Three days thereafter, Jaime permanently
relocated with the children in Utah.
I
"Because of the family courts' special jurisdiction and
expertise in family matters, appellate courts should accord
2 We have reviewed the court's May 18, 2015 letter supplementing the reasons placed on the record as well as its written statement of reasons attached to the July 14 order. See R. 2:5- 1(g) (permitting the trial judge to "supplement a filed opinion").
5 A-5047-14T1 deference to family court factfinding." Cesare v. Cesare, 154
N.J. 394, 413 (1998). Unlike findings of fact, "appellate
review of legal determinations is plenary." State v. Reece, 222
N.J. 154, 167 (2015) (quoting State v. Handy, 206 N.J. 39, 45
(2011)). Here, the family court did not hold a plenary hearing,
nor was it familiar with the parties through extensive motion
practice.
We reverse and remand for a plenary hearing to determine
first whether Jaime negotiated the MSA in bad faith. If so, a
"best interests of the child" analysis must be conducted.
Second, if bad faith is not demonstrated, the trial court must
then consider whether Jaime proved a substantial unanticipated
change in circumstances warranting avoidance of the agreed-upon
non-relocation provision and simultaneously necessitating a
Baures3 analysis. If the MSA was negotiated in good faith, yet
Jaime fails to satisfy her burden of proving a substantial
unanticipated change in circumstances, the court must apply the
same "best interests" analysis as required in the first step.
Only if Glenn is unable to demonstrate that Jamie negotiated the
MSA in bad faith and Jamie proves a substantial unanticipated
change in circumstances occurred should she be accorded the
benefit of the Baures analysis.
3 Baures v. Lewis, 167 N.J. 91, 116-18 (2001).
6 A-5047-14T1 II
The legal authority governing a custodial parent's request
for relocation is extensive and well-established. Pursuant to
Title Nine, the children of divorced parents shall not be
removed from the Superior Court's jurisdiction "without the
consent of both parents, unless the court, upon cause shown,
shall otherwise order." N.J.S.A. 9:2-2. One of the underlying
purposes of the statute involving removal is to preserve the
parent-child relationship of the non-custodial parent and the
child. See Cooper v. Cooper, 99 N.J. 42, 52-53, 55 (1984).
After a divorce, a custodial parent's request to relocate
with the parties' children presents our courts "with difficult
and often heart-wrenching decisions." Morgan v. Morgan, 205
N.J. 50, 54 (2011). "In circumstances where the [non-custodial]
parent has a healthy, meaningful relationship and bond with the
child[ren], there are few circumstances where the judicial
determination [of removal] will not adversely affect the parties
and the child." O'Connor v. O'Connor, 349 N.J. Super. 381, 384
(App. Div. 2002). Although relocation was rarely permitted by
our courts in the past, our Supreme Court recently discussed a
more modern view:
Over time, there has been a shift in relocation law across the country. That shift has resulted from several factors: the mobility of the population, advances in technology, the notion that what is good for
7 A-5047-14T1 the custodial parent is good for the children of the divorce, and a renewed recognition that "[t]he custodial parent who bears the burden and responsibility for the child is entitled, to the greatest possible extent, to the same freedom to seek a better life for herself or himself and the children as enjoyed by the noncustodial parent."
[Morgan, supra, 205 N.J. at 62 (alteration in original) (citations omitted) (quoting Cooper, supra, 99 N.J. at 55).]
"[I]n determining the standard to be applied to a parent's
removal application, the focus of the inquiry is whether the
physical custodial relationship among the parents is one in
which one parent is the 'primary caretaker' and the other parent
is the 'secondary caretaker.'" O'Connor, supra, 349 N.J. Super.
at 385. If the parents truly share both physical and legal
custody, "the 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." Ibid. If one
parent serves as the primary caretaker, the custodial parent's
request to relocate a child is governed by the Baures two-part
test. Baures, supra, 167 N.J. at 116-19, 122. Pursuant to
Baures's two-pronged inquiry, the moving party has the burden of
proving by a preponderance of the credible evidence "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." Id. at 118. To
8 A-5047-14T1 determine whether to order removal, a court must assess twelve
"factors relevant to the plaintiff's burden of proving good
faith and that the move will not be inimical to the child's
interest." Id. at 116-17.
The initial burden on the movant "is not a particularly
onerous one." Id. at 118. Once the moving party makes a prima
facie showing, the burden shifts to the non-moving party to
"produce evidence opposing the move as either not in good faith
or inimical to the child's interest." Id. at 119.
The Baures standard "accords particular respect to the
custodial parent's right to seek happiness and fulfillment."
MacKinnon v. MacKinnon, 191 N.J. 240, 257 (quoting Baures,
supra, 167 N.J. at 97), stay denied, 551 U.S. 1177, 128 S. Ct.
7, 168 L. Ed. 2d 784 (2007). We note, in the context of this
case, the late Justice Schreiber's concurrence, which stated
that "[s]ubstantial deference is to be accorded to parents'
mutually-agreed-upon decisions with respect to custody and
visitation," including "the parents' agreement regarding the
physical situs of the children." Cooper, supra, 99 N.J. at 66
(Schreiber, J., concurring).
A plenary hearing is necessary "where a prima facie showing
has been made that a genuine issue of fact exists bearing upon a
critical question." See Barblock v. Barblock, 383 N.J. Super.
114, 123 (App. Div.) (quoting Pfeiffer v. Ilson, 318 N.J. Super.
9 A-5047-14T1 13, 14 (App. Div. 1999)), certif. denied, 187 N.J. 81 (2006).
Here, Glenn raises the question of whether Jaime negotiated the
custody provisions in good faith. In Shea v. Shea, the parties
entered into an agreement establishing "joint legal custody,
with [the] defendant designated as parent of primary residence."
384 N.J. Super. 266, 270 (Ch. Div. 2005). Four months later,
the defendant filed an application seeking permission to
relocate with the child. Id. at 268-69. The plaintiff argued
that the defendant manipulated the Baures procedures "by first
settling the divorce, and immediately thereafter filing for
removal, effectively depriving [the plaintiff] of the
opportunity to contest custody." Id. at 268. He alleged that
he never would have agreed to the settlement "had he known that
[the] defendant was shortly thereafter going to seek an order
for out-of-state removal." Ibid. In a published opinion, Judge
Millard determined that the parties were entitled to a plenary
hearing. Id. at 273-74. Judge Millard opined:
It seems only fair and equitable, that where a request for removal comes shortly after the settlement of the Final Judgment of Divorce, and the material facts and circumstances forming the good faith reason for the removal request were known at the time of the entry of the final judgment, a party opposing the removal be entitled to contest custody under the best interests analysis, irrespective of whether the parties had a true shared parenting arrangement. In effect, the party opposing removal is restored to the position he or
10 A-5047-14T1 she held prior to the Final Judgment of Divorce. To rule otherwise could potentially encourage disingenuous settlements, encourage a party to use the Baures line of cases as a sword, or alternatively compel a cautious party to exhaustively litigate custody when not truly necessary. The moving party must, of course, initially make out a prima facie case for removal under Baures (good faith reason for removal and not inimical to interests of child) before the court would entertain such a custodial application.
[Id. at 271-72.]
Unlike in Shea, when Jaime entered into the agreement, she
may not have definitely known of "the material facts and
circumstances forming the good faith reason for the removal
request" — that she was going to marry the Utah resident. See
id. at 271. The parties here, however, agreed to a non-
relocation provision that did not exist in Shea. Thus, for
reasons as compelling as those in Shea, Glenn is entitled to a
plenary hearing to establish whether Jaime manipulated the
situation to obtain favorable Baures removal procedures. See
id. at 271-72. If Glenn proves the existence of manipulation,
"fundamental fairness" requires the trial court to apply the
"best interests of the child" standard rather than the Baures
standard. See id. at 273-74.
Because Jaime sought to relocate shortly after entering
into a non-relocation agreement, we adopt the procedures in Shea
and remand to hold a plenary hearing. The parties entered into
11 A-5047-14T1 an MSA in March 2014, which was incorporated into the parties'
JOD in April 2014. At the time of the agreement, Jaime had been
dating her current husband for approximately four months. She
left her well-paying job to stay home with her children three
months after her divorce, and informed Glenn of her impending
nuptials and desire to relocate six months after that. Similar
to the situation in Shea, the close proximity between the
parties' agreement and Jaime's plans to relocate provides
evidence of suspicious circumstances requiring a plenary
hearing. See id. at 269, 273. If, after holding a hearing, the
family court finds that Jaime negotiated in bad faith, it should
then analyze the relocation request under a "best interests"
analysis.
III
If the family court finds that Jaime negotiated in good
faith, without manipulative intent, the court must still
consider the impact of the carefully considered non-relocation
provision.
"New Jersey has long espoused a policy favoring the use of
consensual agreements to resolve marital controversies." J.B.
v. W.B., 215 N.J. 305, 326 (2013) (quoting Konzelman v.
Konzelman, 158 N.J. 185, 193 (1999)). "The basic contractual
nature of matrimonial agreements has 'long been recognized.'"
12 A-5047-14T1 Sachau v. Sachau, 206 N.J. 1, 5 (2011) (quoting Petersen v.
Petersen, 85 N.J. 638, 642 (1981); Harrington v. Harrington, 281
N.J. Super. 39, 46 (App. Div.), certif. denied, 142 N.J. 455
(1995); Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div.
1995)). Consensual settlement agreements are subject to the
"changed circumstances" doctrine. Lepis v. Lepis, 83 N.J. 139,
148 (1980). "A party seeking modification of a judgment
incorporating a [property settlement agreement] regarding
custody or visitation, must meet the burden of showing changed
circumstances and that the agreement is now not in the best
interests of a child." Abouzahr v. Matera-Abouzahr, 361 N.J.
Super. 135, 152 (App. Div.), certif. denied, 178 N.J. 34 (2003);
see Walles v. Walles, 295 N.J. Super. 498, 517 (App. Div. 1996)
(stating that "a party seeking modification of a judgment of
divorce must demonstrate a substantial change in
circumstances"). When conducting a change in circumstances
analysis, the court must address all relevant considerations,
"including the parties' understanding at the time of execution
of the [marital settlement agreement]." Glass v. Glass, 366
N.J. Super. 357, 376 (App. Div.) (requiring the court to
consider "the reasonable expectations" of the contracting
parties), certif. denied, 180 N.J. 354 (2004).
Article 1.9 of the MSA requires the prior written consent
of the other party before relocation. The language of the MSA
13 A-5047-14T1 and the parties' conduct evidence an intent for the children to
remain in New Jersey. Jaime acknowledged that the relocation
provision was negotiated between the parties. See Minkowitz v.
Israeli, 433 N.J. Super. 111, 138 (App. Div. 2013) (stating that
an agreement reached voluntarily "should be enforced"). Thus
Jaime, in a written and voluntarily agreed-upon contract,
specifically surrendered her "freedom to seek a better life" in
another state while obtaining primary custody of the children,
and was well aware of that agreement when she chose to remarry
and move far away. See Morgan, supra, 205 N.J. at 62 (quoting
Cooper, supra, 99 N.J. at 55).
Two central reasons for moving are for new employment or
remarriage. See Baures, supra, 167 N.J. at 96 ("[R]elocation
for employment purposes is common. On a personal level, people
remarry and move away."); see, e.g., Morgan, supra, 205 N.J. at
56 (remarriage); MacKinnon, supra, 191 N.J. at 244 (employment).
In their agreement, the parties discussed relocation on the
basis of new employment. Remarriage, however, was not mentioned
in the agreement. Perhaps testimony would reveal whether such
an eventuality was considered. See Pacifico v. Pacifico, 190
N.J. 258, 267 (2007) (permitting an evidentiary hearing to
determine the parties' intentions when entering into a property
settlement agreement).
14 A-5047-14T1 On remand, if Glenn is unable to demonstrate bad faith,
Jaime has the opportunity of proving a substantial unanticipated
change in circumstances to trigger the court's consideration of
the Baures factors. If the court determines that the Baures
procedure is appropriate, then it must gauge as one of the
factors, as it failed to do in its decision on the removal
motion, the effect on the children of moving away from both
parents' extended families. Baures, supra, 167 N.J. at 117
(identifying as one of the factors "the effect of the move on
extended family relationships").
If Jaime is unable to demonstrate an unanticipated
substantial change in circumstances, even if she negotiated the
MSA in good faith, the family court must apply the "best
interests" standard to determine removal. If Jaime's remarriage
was anticipated, or should have been anticipated, then Glenn
should be able to rely on the non-relocation provision.
Although Baures "accords particular respect to the custodial
parent's right to seek happiness and fulfillment," Jaime
bargained away this preference and the non-relocation provision
should be enforced to the limited extent of modifying the usual,
preferential treatment accorded the primary caretaker's good
faith desire to relocate. See id. at 97.
15 A-5047-14T1 Reversed and remanded to the Family Part for a plenary
hearing to be conducted in an expedited fashion within sixty
days. We do not retain jurisdiction.
16 A-5047-14T1