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A.J. v. R.J.

Superior Court of New Jersey, Appellate Division

October 7, 2019

A.J., Plaintiff-Appellant,
R.J., [1] Defendant-Respondent.

          Submitted September 11, 2019.

          On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-0954-13.

          Ross & Calandrillo, LLC, attorneys for appellant (Elizabeth Calandrillo, of counsel and on the briefs).

          Andrew M. Wolfenson, attorney for respondent.

          Before Judges Koblitz, Whipple, and Mawla.


          MAWLA, J.A.D.

          Plaintiff A.J. appeals from a September 28, 2018 order sanctioning her by transferring custody of the parties' children to defendant R.J., for failure to comply with a prior order related to her unilateral intra-state relocation. We hold in cases where a court exercises its authority pursuant to Rules 1:10-3 and 5:3-7(a)(6), it must make findings under N.J.S.A. 9:2-4 that the sanction imposed is in the best interests of the children. We further hold the factors in Baures v. Lewis, 167 N.J. 91 (2001) no longer apply when a court is addressing an intra-state relocation, and instead, pursuant to Bisbing v. Bisbing, 230 N.J. 309 (2017), the court must apply N.J.S.A. 9:2-4. Because the trial judge applied the wrong law related to the intra-state relocation and did not apply N.J.S.A. 9:2-4 when he sanctioned plaintiff, we reverse and remand for further proceedings consistent with this opinion.

         We take the following facts from the record. The parties married in 2008, and divorced in 2013. Two children were born of the marriage who are presently ten and eight years of age. The judgment of divorce incorporated a marital settlement agreement (MSA), which designated plaintiff as the parent of primary residence, and granted defendant parenting time every other weekend from Friday to Saturday and one midweek overnight. The parties also agreed to share the holidays and each enjoyed one week of summer vacation with the children.

          Post-judgment, plaintiff remarried and had a third child. She, her husband, and the three children resided in a two bedroom apartment in Elizabeth. Plaintiff was employed as a tenured school teacher in Elizabeth. Defendant was employed in New York City and lived in Union.

         This dispute began in March 2018, when plaintiff unilaterally moved with the children from Elizabeth to Mount Holly. Prior to the move, the parties only had one text conversation in July 2017, in which defendant stated the children informed him plaintiff was contemplating a move. During the exchange, plaintiff confirmed she wished to move and was searching locally and as far as Mount Laurel. Defendant asked her to remain local because it would be unfair to him and the children to move far away.

         Plaintiff moved in March 2018, because her landlord increased the rent and would not give her additional time to search for another residence before doing so. She searched without success for a suitable residence in Elizabeth, Somerset, and Florence. Ultimately, plaintiff moved 62.3 miles away from defendant to Mount Holly, where she had family. Defendant learned of the move several days later by text message. He filed an order to show cause to bar the relocation and modify custody. The trial judge entered an order on May 14, 2018, granting defendant temporary parenting time three weekends each month, ordering mediation, and scheduling a plenary hearing to determine whether plaintiff would be permitted to remain in Mount Holly. The judge ordered the children to continue attending school in Elizabeth.

         Mediation was unsuccessful. The judge conducted a plenary hearing resulting in the entry of a July 16, 2018 order. He concluded in his written decision that before the start of the 2018-19 school year, plaintiff had to return with the children and reside within fifteen miles of Union. Pending plaintiff's return, the judge directed the parties to abide by the temporary parenting time established under the May order. Once plaintiff returned, defendant's parenting time would revert to the schedule in the MSA.

         Significantly, although the judge's decision recognized "Baures . . . has since been overruled by Bisbing," his reasoning relied upon our decision in Schulze v. Morris, 361 N.J.Super. 419 (App. Div. 2003), which applied the Baures factors to determine whether a parent could relocate intra-state. Applying a preponderance of the Baures factors, the trial judge explained "[p]laintiff's decision may not have been solely driven by a desire to alienate the children from their father, but was certainly done in wanton disregard of his rights, with the result being that his relationship with them will clearly suffer." The judge concluded the distance between the parties' residences increased the travel time from "minutes away" to "slightly over an hour[.]" The judge noted if the children resided in Mount Holly defendant could no longer leave work early to tend to a sick child, enjoy additional parenting time, or attend extracurricular activities as he had in the past. The judge found the surreptitious nature of the move belied plaintiff's explanation that she did not inform defendant because she did not have time.

         The judge concluded it was not in the best interests of the children to relocate because the move would be "deleterious to the relationship with [defendant.]" He noted, because plaintiff remained employed in the Elizabeth school district, neither parent would be near the children during the school day. The judge found plaintiff "offered little or no testimony" as to whether the Mount Holly schools were better for the children than the magnet schools they attended in Elizabeth, where the children had excelled academically. The judge also noted the parties' eldest child experienced behavioral issues and the relocation away from defendant would harm the child because defendant could not "be there for his son as he goes through these issues[.]"

         Plaintiff did not return. Defendant filed an order to show cause seeking enforcement of the July order. Specifically, he sought the court to compel plaintiff and the children to return, a transfer of residential custody pending a final determination of custody, and termination of his child support obligation. The trial judge heard oral argument on September 28, 2018.

          Plaintiff's counsel argued it was impossible for plaintiff to comply with the July order because she signed a lease for the residence in Mount Holly through April 2019, and could not afford both a lease in Mount Holly and a second residence within the court-ordered radius. The judge rejected plaintiff's argument in his oral findings, noting her improper relocation to Mount Holly created the difficult situation from which she sought relief.

         Pertinent to the issues raised in this appeal, the judge found defendant met his burden pursuant to Crowe v. De Gioia, 90 N.J. 126 (1982), and granted defendant's order to show cause. The judge stated "the issue is ...

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