On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-144-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2010
Before Judges Fisher, Simonelli and Fasciale.
This appeal concerns that part of the December 8, 2009 Family Part order, which permitted plaintiff Karen Bento to move with the parties' children from Newburgh, New York, to Marlborough, Massachusetts (the December 8 order). We conclude that the trial judge correctly determined this is a removal case governed by Baures v. Lewis, 167 N.J. 91 (2001), not a change in circumstances/best interests case governed by Todd v. Sheridan, 268 N.J. Super. 387 (App. Div. 1993), and properly considered the Baures factors in permitting the removal.
Plaintiff and defendant Todd Jobson were married in August 1993 and divorced in August 2002. They have two children, born in 1997 and 1999, respectively. Pursuant to their Property Settlement Agreement (PSA), they have joint legal custody of the children, and plaintiff has primary residential custody. The PSA permitted plaintiff to relocate with the children to Orange County, New York, and set defendant's parenting time at thirty-four weekends each year from Friday evening until Sunday evening, alternate holidays, and one-half of the children's summer vacations.
In September 2007, plaintiff married Joaquim Bento, who resides in Marlborough, Massachusetts. Bento cannot relocate to the Newburgh, New York area because (1) he is a senior principal mechanical engineer for a large corporation in Marlborough and supervisor of fifteen specialty engineers who design components for a naval radar system; (2) his position is highly specialized and there are no comparable positions in the Newburgh area; and (3) he has joint legal and physical custody of his two children, ages eleven and six, who live in Marlborough and spend alternate weekends and one night per week with him.
Prior to marrying Bento, plaintiff obtained a Massachusetts teaching license and sought a teaching position in Marlborough. After the marriage, she filed a motion, seeking permission to move with the children from Newburgh, New York, to Marlborough, Massachusetts, and other relief. Defendant, who lives in Glen Gardner, New Jersey, filed a cross-motion for a change in primary residential custody, claiming plaintiff's relocation to Massachusetts constitutes changed circumstances.*fn1 Prior to the resolution of the motions, plaintiff advised Judge Bartlett she had been offered a teaching position in Marlborough, Massachusetts, and intended to accept it.
After a lengthy plenary hearing, which included expert testimony on custody and removal of the children and interviews with the children, Judge Bartlett entered the December 8 order along with a written decision. The judge found that the best interests test did not apply because this is not a change in custody case. The judge reasoned that plaintiff did not seek to modify the physical custody arrangement but sought to maintain it from Massachusetts, and defendant's cross-motion did not convert this to a change in custody case because the change in circumstances was plaintiff's desire to relocate to Massachusetts.
Judge Bartlett concluded that this matter constitutes a removal case. The judge reasoned that although this case does not fall squarely within the ambit of N.J.S.A. 9:2-2 (addressing removal of children from New Jersey), the issues are the same where a party moves from the original destination state to a third state, and the parties did not share joint physical custody of the children. Thus, the judge determined that the Baures relocation test applied. We concur with this determination. See Morgan v. Morgan, ___ N.J. ___, ___ (2011) (slip op. at 20-24). Judge Bartlett's decision is consistent with Morgan.
The judge then analyzed the twelve Baures factors in light of the evidence presented and concluded that plaintiff had a good faith reason to move to Massachusetts and the move would not be inimical to the children's best interests. The judge also set defendant's parenting time schedule, which permits him to have a full and continuous relationship with his children, and required plaintiff to transport the children to New York for defendant's parenting time, among other things. This appeal followed.
On appeal, defendant argues that Judge Bartlett erred in failing to apply the changed circumstances/best interests test set forth in Todd, supra, or alternatively, incorrectly applied the Baures factors in permitting relocation. We have considered these arguments in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for ...