On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, FM-16-2016-03.
The opinion of the court was delivered by: Sabatino, J.S.C., (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman*fn1, Axelrad and Sabatino.
Defendant Joseph Barblock appeals the Family Part's order allowing his ex-wife, plaintiff Paula Barblock, to remove the parties' two minor children from New Jersey to the vicinity of Buffalo, New York. Defendant's main contention is that the trial court erred in failing to conduct a plenary hearing before granting plaintiff's removal application. Although we agree with defendant that a plenary hearing is usually required in contested removal cases, we find no reversible error due to the absence of such a hearing here. We also find unpersuasive the remaining points raised by defendant, and thus affirm the order entered below.
The parties met in Buffalo and were married in New York State on April 23, 1992. In 1993, the couple relocated to Wayne, New Jersey, where they lived for eleven years until their divorce.
The parties have two children from the marriage: a daughter born December 10, 1995, and a son born June 2, 1998. At the time of the proceedings below, the daughter was nine years of age and her brother was age seven.
It is undisputed that during their marriage the parties and their children frequently visited plaintiff's extended family in the Buffalo area. The family maintained a close relationship with the children's maternal aunts, uncles, cousins and grandparents who live in that region. Also, the parties and the children traveled yearly to Florida to visit the maternal grandparents who spent the winter there.
Eventually, the marriage deteriorated and plaintiff filed a complaint for divorce in Passaic County. The matter settled before trial, and an Amended Final Judgment of Divorce was entered on July 12, 2004. The judgment incorporated the terms of a Property Settlement Agreement ("PSA"). The PSA provided that the parties would share joint legal custody of the children, with the mother designated as the parent of primary residence. The father would have parenting time with the children "on a reasonable and liberal basis as the parties may agree[,] with [defendant] being entitled to at least every other weekend from Friday evening through Sunday evening, Tuesday and Thursday evenings and alternating holidays."
The PSA also provided that the marital home in Wayne, New Jersey, in which the plaintiff and children continued to reside when the final judgment of divorce was entered, would be listed for sale "on or before May 1, 2006."
The record is clear that the parties contemplated at the time of the divorce a potential relocation of plaintiff with the children. The parties had several discussions during the pendency of the divorce about plaintiff's desire to move back to the greater Buffalo area, and to bring along the children. The PSA acknowledged that the parties had been unable to reach agreement concerning such relocation, but did specify that "in the event plaintiff relocates . . . alimony and child support paid by defendant shall be subject to reconsideration."
Following the divorce, plaintiff enrolled in night classes at William Paterson College to obtain a master's degree in education and a certification to teach science. Plaintiff anticipated that she would pursue a teaching position upon the completion of her degree.
At the time of his appeal, defendant resided in Lyndhurst, New Jersey in a three bedroom home. Defendant is employed by a pharmaceutical company. The record indicates that he had regularly exercised his parenting time with the children following the divorce.
Evidently anxious to pursue her long-term goal of relocation, plaintiff applied to and was accepted for the fall 2005 term to D'Youville College in Buffalo, New York, where she would be able to complete her master's degree. This prompted plaintiff, with the assistance of counsel, to file a post-judgment motion in January ...