NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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

1 We will call the parties by their first names for ease of reference. No disrespect is intended.

2 A-5047-14T1 would have primary residential custody, with the condition that

she not relocate out of state.

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

3 A-5047-14T1 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, 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.

4 A-5047-14T1 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

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.

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 I

"Because of the family courts' special jurisdiction and

expertise in family matters, appellate courts should accord

deference to family court factfinding." Cesare v. Cesare,

(1998). Unlike findings of fact, "appellate

review of legal determinations is plenary." State v. Reece,

(2015) (quoting State v. Handy,

(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

3 Baures v. Lewis,

(2001).

6 A-5047-14T1 MSA in bad faith and Jamie proves a substantial unanticipated

change in circumstances occurred should she be accorded the

benefit of the Baures analysis.

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,

(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,

(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,

(App. Div. 2002). Although relocation was rarely permitted by

7 A-5047-14T1 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 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,

(alteration in original) (citations omitted) (quoting

).]

"[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,

. 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."

If one

parent serves as the primary caretaker, the custodial parent's

request to relocate a child is governed by the Baures two-part

8 A-5047-14T1 test.

. 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."

. To

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."

.

The initial burden on the movant "is not a particularly

onerous one."

. 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."

.

The Baures standard "accords particular respect to the

custodial parent's right to seek happiness and fulfillment."

MacKinnon v. MacKinnon,

(quoting

), stay denied,

,

,

(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

9 A-5047-14T1 physical situs of the children."

(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,

(App. Div.) (quoting Pfeiffer v. Ilson,

(App. Div. 1999)), certif. denied,

(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."

(Ch. Div. 2005). Four months later,

the defendant filed an application seeking permission to

relocate with the child.

. 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."

. 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."

In a published opinion, Judge

Millard determined that the parties were entitled to a plenary

hearing.

. Judge Millard opined:

10 A-5047-14T1 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 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

. 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

11 A-5047-14T1

. 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

.

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

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

. 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

12 A-5047-14T1 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.,

(2013) (quoting Konzelman v.

Konzelman,

(1999)). "The basic contractual

nature of matrimonial agreements has 'long been recognized.'"

Sachau v. Sachau,

(2011) (quoting Petersen v.

Petersen,

(1981); Harrington v. Harrington,

(App. Div.), certif. denied,

(1995); Massar v. Massar,

(App. Div.

1995)). Consensual settlement agreements are subject to the

"changed circumstances" doctrine. Lepis v. Lepis,

(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,

(App. Div.), certif. denied,

(2003);

see Walles v. Walles,

(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

13 A-5047-14T1 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,

(App. Div.) (requiring the court to

consider "the reasonable expectations" of the contracting

parties), certif. denied,

(2004).

Article 1.9 of the MSA requires the prior written consent

of the other party before relocation. The language of the MSA

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,

(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

(quoting

).

Two central reasons for moving are for new employment or

remarriage. See

("[R]elocation

for employment purposes is common. On a personal level, people

remarry and move away."); see, e.g.,

A-5047-14T1 56 (remarriage);

(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,

(2007) (permitting an evidentiary hearing to

determine the parties' intentions when entering into a property

settlement agreement).

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.

(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

15 A-5047-14T1 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

.

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