On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County.
Lora, Seidman and Milmed. The opinion of the court was delivered by Milmed, J.A.D.
[161 NJSuper Page 86] The central issue in this matrimonial suit involves the defendant-wife's proposed removal from Wyckoff to Manhattan of the two children of the marriage, boys now of the ages of about 15 and 9 years respectively,*fn1
for a limited period while she pursues graduate study there at the New School for Social Research leading to a master's degree in health services administration.
The record before us discloses that the parties were married in 1960, separated in 1975, and divorced in 1977 on "no-fault" grounds. In accord with their "Settlement Agreement," custody of the children was awarded to the wife, and the terms of the agreement were incorporated by reference in the judgment of divorce. Other pertinent provisions of the agreement include: the grant of visitation rights to plaintiff-husband; provision for the support and maintenance of the wife*fn2 and children, recognizing therein the possibility that the wife might be accepted in the New School graduate program in public health administration; and allowing the wife to continue to reside in the marital residence in Wyckoff. The wife was to pay all costs and charges in connection with the upkeep of the premises. Three provisions of the agreement relating to the marital premises became the subject of dispute in conjunction with the wife's intended temporary relocation in Manhattan while she pursued her graduate study. The relevant text reads:
The Husband and Wife are owners, as tenants by the entirety, of residential premises known as 350 Monroe Avenue, Wyckoff, New Jersey. The Wife may continue to reside in said premises until the parties may mutually agree, in writing, which agreement shall not be unreasonably withheld; or until the youngest child of the marriage
then living reaches the age of 18 years, or the Wife remarries, whichever shall first occur. At said time, the parties agree that they will cooperate to effect a sale of the property at a reasonable price, and shall execute all such deeds or other instruments as are necessary to effect such sale. * * * [Par. 4.2]
The Husband and Wife are hereby given, at any time, the first option to purchase the other's interest in the marital premises, at a price to be determined by an independent appraisal of the premises, less the parties' joint responsibilities in the mortgages, indentures and closing costs then secured against the marital premises. [Par. 4.3]
The Wife represents that she will maintain the marital premises and not allow waste during the period of joint ownership with the Husband, and she shall have all right, title and interest in and to any rents received from said marital premises during her period of occupancy. [Par. 4.6]
Subsequently, Mrs. Middlekauff was accepted into the New School graduate program. To help finance her studies and enable her "to keep closer track of what the boys are doing" she began making arrangements to rent out the Wyckoff residence for a term of two years and move with the children into an apartment in a housing complex in Manhattan on Second Avenue between 26th and 29th Streets. The older son was accepted at Stuyvesant High School, which is within walking distance of the apartment, and the younger son was to attend a neighborhood elementary school. However, on plaintiff's motion, and after a hearing, the trial judge found that although the children "could be supervised * * * while [defendant is] in school" and "the area that she contends [ sic ] to move into is a fine area," to allow her to rent out the Wyckoff residence and temporarily move to Manhattan with the children would frustrate the intent of the parties as expressed in their settlement agreement "where they agreed that she should reside in * * * the residence * * * with the children, until one of the contingencies in [paragraph] 4.6 materializes." By an order of July 18, 1977 he, accordingly, enjoined defendant "from removing herself from the jurisdiction" of the court "under any
circumstances," without the court's approval or order, and restrained her "from renting the marital premises." He also denied her cross-motion "for payment of her counsel fees on account of plaintiff's motion," as well as plaintiff's application for temporary custody of the children.
Mrs. Middlekauff appealed from the provisions of the order that were adverse to her and applied to this court for emergent relief "dissolving the restraint" against removing herself from the court's jurisdiction. On August 12, 1977 this court disposed of that application by, in effect, lifting the restraint against her leaving New Jersey, but providing that the children could not be removed from the State without an order of the trial court.
Defendant thereupon obtained an order for a plenary hearing on the issues of: (1) allowing her temporarily to remove the children from the jurisdiction; (2) allowing her to rent or sell the Wyckoff residence "or purchase same from Plaintiff as provided in the Settlement Agreement," and (3) allowing her counsel fees and costs "for litigating these issues." After hearing both parties and a probation officer, another trial judge, although expressing admiration for Mrs. Middlekauff and her ambitions, found that "it was the general intention of the parties that [she] should remain in Wyckoff with the children," and concluded that it would not be "as conducive to the welfare of the children" for them to live in Manhattan as it would be for them to remain where they were. He announced that he would "sign an order directing Mrs. Middlekauff to remain in Wyckoff." He subsequently ordered that (1) "the August 12, 1977 Order of the Appellate Division shall remain in force until further order of the Court"; (2) in addition to the sums paid by plaintiff to defendant pursuant to the settlement agreement "Plaintiff shall ...