Submitted September 11, 2019.
appeal from the Superior Court of New Jersey, Chancery
Division, Family Part, Union County, Docket No.
& Calandrillo, LLC, attorneys for appellant (Elizabeth
Calandrillo, of counsel and on the briefs).
M. Wolfenson, attorney for respondent.
Judges Koblitz, Whipple, and Mawla.
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.
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.
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.
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.
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.
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.
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[.]"
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.
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 ...