Jaime Taormina Bisbing v. Glenn R. Bisbing, Iii ( 2016 )

  •                    NOT FOR PUBLICATION WITHOUT THE
                                           SUPERIOR COURT OF NEW JERSEY
                                           APPELLATE DIVISION
                                           DOCKET NO. A-5047-14T1
                                                APPROVED FOR PUBLICATION
                                                       April 6, 2016
    v.                                               APPELLATE DIVISION
                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
         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
      We will call the parties by their first names for ease of
    reference. No disrespect is intended.
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    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.
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           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.
      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
                                                 5                                        A-5047-14T1
           "Because       of    the    family      courts'   special     jurisdiction      and
    expertise      in     family      matters,      appellate      courts   should    accord
    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
           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
        Baures v. Lewis, 
    167 N.J. 91
    , 116-18 (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.
        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
                                                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, 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
                                           8                                A-5047-14T1
    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
    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
                                                 9                                      A-5047-14T1
    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. 13
    , 14 (App. Div. 1999)), certif. denied, 
    187 N.J. 81
    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:
                                              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
    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
                                              11                                 A-5047-14T1
    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
    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"
          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
          "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.
    158 N.J. 185
    , 193 (1999)).                  "The basic contractual
    nature of matrimonial agreements has 'long been recognized.'"
    Sachau v. Sachau, 
    206 N.J. 1
    , 5 (2011) (quoting Petersen v.
    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
    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
                                            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, 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
           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.
    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
                                              14                             A-5047-14T1
    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).
           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
                                                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 id. at 97.
        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.
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