                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0495-19T1

DOMINIQUE BETTS-PAYNE,

          Plaintiff-Appellant,

v.

ANDRE G. CAMPBELL,

     Defendant-Respondent.
__________________________

                   Submitted May 27, 2020 – Decided July 2, 2020

                   Before Judges Yannotti, Currier and Firko.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Essex County, Docket
                   No. FD-07-3746-15.

                   Robert L. Tarver, Jr., attorney for appellant.

                   Respondent has not filed a brief.

PER CURIAM

          Plaintiff Dominique Betts-Payne and defendant Andre Campbell are the

parents of an eight-year-old son and a five-year-old daughter. Plaintiff appeals
from a June 25, 2019 order denying her application to relocate with the children

to Pennsylvania and a September 9, 2019 order denying reconsideration.

Because we conclude the trial court did not make factual findings on the

education factor in its analysis of N.J.S.A. 9:2-4(c), we remand for a

reconsideration of plaintiff's application, including an evaluation of all of the

statutory factors. Since a year has passed since these events, we instruct the trial

court to consider the parties' current circumstances in the context of the best

interests analysis.

      We derive our facts from the evidence presented during the June 2019

hearing on plaintiff's relocation application. Plaintiff is the parent of primary

residence. Defendant is the parent of alternate residence and has court-ordered

parenting time one weekday overnight and every other weekend. The parties

share legal custody.

      When the initial parenting time schedule was established, plaintiff was

residing with the children in Rockaway, approximately thirty-five minutes away

from Newark, where defendant lives with his parents. The parties exchanged

the children at an agreed-upon location in Newark for defendant's weekend

parenting time, and defendant would pick up the children from school in

Rockaway for his weekday overnight. However, prior to plaintiff's application


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for relocation, she had moved to Newfoundland in Passaic County.              The

parenting time remained the same.

      In September 2018, plaintiff lost her job. She received unemployment

benefits until April 2019. Plaintiff testified she had difficulty paying her rent

and other bills due to her loss of income, resulting in a poor credit rating. In

May 2019, plaintiff obtained a part-time job. She also began looking for a new

residence because her existing lease was set to expire in July.

      Plaintiff stated she looked at a number of places with safety and a good

school system as her priorities. In some instances, her applications were rejected

because of her credit issues and her employment only being part -time. When

she looked in Newark and Irvington, to be closer to defendant, she suggested the

children's attendance at those school systems would not be in their best interests

and the rent was still too expensive.

      In June 2019, plaintiff informed defendant that she planned to relocate

with the children to a residence in Tobyhanna, Pennsylvania. The following

day, defendant filed a motion for a modification of child support and raising

issues regarding his daughter's hairstyle, his son's clothing and school

attendance, and vacation time with the children. He also opposed plaintiff's




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                                        3
proposed relocation, arguing the move was too far away and his parenting time

would be reduced as a result. Defendant did not seek a change in custody.

      In response, plaintiff filed an application to relocate the children to

Pennsylvania by June 28, 2019. She advised the new residence was only ten

minutes from the New Jersey border and a thirty to forty minute longer drive for

defendant than where she was living in Newfoundland. She stated she had done

all she could to remain in New Jersey but had been unable to find anything

affordable.

      On June 24, 2019, the court held a plenary hearing on the parties'

applications. Both parties appeared pro se. Plaintiff testified and presented six

witnesses – family and friends who generally described her as a good mother

and supported the move to Pennsylvania as beneficial for financial reasons and

the children's education.

      Plaintiff asserted the relocation was in the best interests of the children

because they would be going to a "great school district" and community and

there would be no "strain" on their relationship with defendant because she

intended to comply with the current parenting schedule. She explained she had

always taken care of the children and followed the parenting schedule. She

further asserted that if the children were not permitted to relocate with her and


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                                       4
had to move in with defendant, they would not be in a "comparable school

district" and would "be taken care of by their [paternal] grandparents . . . ."

       Defendant opposed plaintiff's relocation request because he thought the

move to Pennsylvania was a "far drive" and his parenting time would likely be

reduced.1

       The court issued an oral decision following the hearing on June 24, 2019.

In recognizing Bisbing 2 as the controlling law, the court addressed the factors

under N.J.S.A. 9:2-4(c) to determine whether relocation was in the best interests

of the children. With two exceptions, the court found the factors were neutral

or not applicable. In addressing "the quality and continuity of the children's

education," the court only considered its application to the parties' son as their

daughter had not yet started school. The court found there was no "particular

testimony about the . . . school where the plaintiff intends to move in

Pennsylvania." However, the court acknowledged plaintiff's testimony that she

sought a quality education for her children. As to continuity, the court noted the

son would have to change schools whether plaintiff was in Pennsylvania or New


1
   The parties discussed, and the court ruled, on defendant's additional issues
raised in his application. We need not address those rulings as they are not a
subject of this appeal.
2
    Bisbing v. Bisbing, 230 N.J. 309 (2017).
                                                                            A-0495-19T1
                                         5
Jersey since she was unable to find affordable housing in their current school

district. The court concluded the factor was neutral or slightly against relocation

because the son had already started school in New Jersey.

         In considering the factor of the parties' geographical proximity, the court

noted plaintiff's willingness to drive to a meeting point with defendant that

would be comparable to his current traveling time. However, the court found

the factor weighed against relocation because the distance between the parties

would be extended.

         In finding no factors weighed in favor of relocation, one factor weighed

against relocation, and the remaining were neutral or not applicable, the court

denied plaintiff's application. The ruling was memorialized in a June 25, 2019

order.

         Shortly thereafter, plaintiff retained counsel who filed a motion for a stay

and reconsideration on July 15, 2019. Although the motion was stamped as

received on that date, it was not docketed because it was missing payment. 3




3
   Counsel represented to the court during the hearing on the reconsideration
motion that he personally delivered the original motion papers with a check to
the courthouse on July 15, 2019. The court accepted his representation.


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                                           6
When the papers were returned to counsel as "deficient," he delivered a

replacement check.

      However, the motion was not calendared until September 9, 2019. When

the parties convened on that date, plaintiff's counsel advised the court that

plaintiff had moved to Tobyhanna with the children.               He explained the

circumstances surrounding the filing of the motion, noting that if the motion was

docketed and calendared as anticipated, the case would have been heard before

plaintiff's lease expired on July 30.

      Because plaintiff was requesting a stay of the court's decision and

reconsideration, counsel reasoned if the court had granted the stay, plaintiff

could have moved without consequences. Counsel was resolute that plaintiff

had not disregarded the court's order but had moved only because of his advice.

The children were enrolled in schools in Pennsylvania – the son had started

second grade and the daughter was in daycare.4 The move had not interfered

with defendant's parenting time; the parties still met at an agreed-upon location.

In addition, plaintiff had given birth to a child on August 10.



4
  Counsel also represented that plaintiff was working from home while living
in Pennsylvania, however it is unclear whether plaintiff changed jobs or
continued to work at her part-time job in Rockaway.


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                                        7
      During the September 9 hearing, plaintiff's counsel argued the court erred

in failing to appreciate that (1) the educational opportunities in Pennsylvania

were superior to the area in which plaintiff could afford to live in New Jersey,

and (2) the move to Pennsylvania was within a geographical distance closer to

defendant's residence than if she had moved to other locations in New Jersey.

      Plaintiff informed the court that she had nowhere to live in New Jersey.

And, if the children were compelled to return to New Jersey, they would have

to live with their father in Newark and attend the local elementary school, which

plaintiff's counsel represented was in the "[1.7] percentile of school proficiency

in . . . New Jersey."

      Plaintiff also asserted the court erred in its consideration of the

geographical proximity factor. Although she was living in another state, she

had, and would continue to comply with, the court's order regarding defendant's

parenting time.

      In response, defendant reasserted his argument that the children's new

residence in Tobyhanna was too far away. Plaintiff argued that defendant had

not articulated any reason that the relocation was not in the children's best

interest.




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                                        8
      In an oral decision and accompanying order of September 9, 2019, the

court denied the motion for a stay and reconsideration of its June 25, 2019 order.

The judge stated he considered all of the N.J.S.A. 9:2-4(c) factors in his previous

decision, made specific findings with respect to each one, and made a

determination as to whether each factor was neutral, not applicable, or weighed

in favor of or against granting plaintiff's relocation application. The court

ordered plaintiff to return the children to New Jersey within thirty days.

      After plaintiff filed a notice of appeal, she presented an emergent

application to the family court for an order staying the court's orders and

requiring defendant to show cause why the date for the return of the children

should not be extended. The court denied plaintiff's request for a stay but

extended the deadline to return the children to October 31, 2019. On November

15, 2019, the court denied plaintiff's order to show cause; the children were

ordered to return to New Jersey no later than November 22, 2019.

      On November 20, 2019, plaintiff filed an application for permission to file

an emergent motion with this court, requesting a stay pending appeal of the

family court's orders denying relocation and the subsequent orders requiring the

children's return. We granted plaintiff leave to file an emergent application. In




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                                        9
response to plaintiff's application, defendant advised he opposed the motion and

relied upon the trial court's orders.

      On November 22, 2019, we granted plaintiff's emergent motion for a stay

pending appeal. In our order, we stated, "[W]e are convinced that the children

may suffer some harm from the disruption that would result if they are required

to return to New Jersey by November 22, 2019, as ordered by the trial court."

For that reason alone, we determined that the trial court's orders should be stayed

pending the disposition of the appeal.

      On appeal, plaintiff argues that the family court erred in denying her

application to relocate with the parties' children by failing to properly apply and

weigh two factors under N.J.S.A. 9:2-4(c). Specifically, plaintiff contended the

court did not evaluate the quality and continuity of the children's education

factor because a proper analysis would conclude in a finding that the factor

weighed in favor of relocation. Plaintiff contends she cannot afford housing in

New Jersey, and, therefore, the children would have to move into their father's

residence in Newark.

      Plaintiff argues the court failed to consider the information that the parties'

son was currently enrolled in "one of the top-rated schools in Pennsylvania"

where he has "excelled" and "made relationships with students and teachers." If


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                                         10
forced to return to New Jersey, their son would attend a school in Newark, where

he would not get as good an education as he would in the school in Pennsylvania.

      Plaintiff also contends the court erred in its evaluation of the geographical

proximity factor because the children's relocation would not impact defendant's

relationship with them and, therefore, it should not have weighed against

relocation. She contends there was no testimony that defendant's parenting

schedule would change as a result of the children's move.

      Our review of a family court order is limited. See Cesare v. Cesare, 154

N.J. 394, 411 (1998). Generally, the family court's factual findings "are binding

on appeal when supported by adequate, substantial, credible evidence." Id. at

411-12 (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484

(1974)). Challenges to legal conclusions, as well as the trial court's

interpretation of the law, are subject to de novo review. Ricci v. Ricci, 448 N.J.

Super. 546, 565 (App. Div. 2017) (citing Reese v. Weis, 430 N.J. Super. 552,

568 (App. Div. 2013)). We review the denial of a motion for reconsideration

for an "abuse of discretion." Cummings v. Bahr, 295 N.J. Super. 374, 389 (App.

Div. 1996) (quoting CNF Constructors, Inc. v. Donohoe Constr. Co., 57 F.3d

395, 401 (4th Cir. 1995)).




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                                       11
      Under N.J.S.A. 9:2-2, a parent who seeks to remove a child from this state

when the other parent does not consent must demonstrate "cause" for the

removal. The legislative intent of this statute was "to preserve the rights of the

noncustodial parent and the child to maintain and develop their familial

relationship." Bisbing, 230 N.J. at 323 (quoting Holder v. Polanski, 111 N.J.

344, 350 (1988)).

      In Bisbing, the Court interpreted "cause" under N.J.S.A. 9:2-2 as requiring

the petitioning parent to satisfy the best interests analysis set forth in N.J.S.A.

9:2-4(c), "supplemented by other factors as appropriate." 230 N.J at 338 (citing

N.J.S.A. 9:2-4(c)). In making "the sensitive determination of cause[, a court]

must weigh the custodial parent's interest in freedom of movement as qualified

by his or her custodial obligation, the State's interest in protecting the best

interests of the child, and the competing interests of the noncustodial parent."

Id. at 323 (internal quotation marks omitted) (quoting Holder, 111 N.J. at 350).

      Here, the trial court performed the required best interests analysis under

N.J.S.A. 9:2-4(c), finding all but two of the factors to be neutral or inapplicable.

Therefore, we need only address the two statutory factors pertinent to the issues

in this appeal – the quality and continuity of the child's education, and the

geographical proximity of the parents' homes. A careful review of the record


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                                        12
reveals the court did not make the required factual findings regarding the

education factor. Where, as here, the case presents a close call, and the court

only found one factor against relocation, it was imperative to address all of the

factors thoroughly.

      Plaintiff was a self-represented litigant when she filed her request to

relocate the children and during the plenary hearing. She explained to the court

her inability to find affordable housing in New Jersey in an area with a quality

school system. She and her witnesses testified regarding the importance of a

good education for her children. She completed several years of college herself.

      Plaintiff also informed the court that relocation was in the best interests

of the children because they would be living in a "great school district." She

assured the court she intended to honor defendant's parenting time. Defendant

did not dispute plaintiff's contention that the school district where she proposed

to live in Pennsylvania provided an education superior in quality to that of the

elementary school in his parent's Newark neighborhood.

      In assessing the quality and continuity of the children's education, the

court found there was no testimony about the particular school in Pennsylvania

and the parties' son would not have continuity regardless of which state plaintiff




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                                       13
lived in, because she needed to move from her current location. The court

deemed the factor as neutral or slightly against relocation.

        In her reconsideration motion, plaintiff's counsel argued the court erred in

not considering the information plaintiff presented regarding the difference in

the quality of education between her proposed Pennsylvania school district and

that serving defendant's residence in Newark. Counsel also attempted to provide

the court with documentation about the Pennsylvania school district. Counsel

noted it was a highly rated school and juxtaposed it with the school the children

would attend if living with defendant in Newark. That elementary school was

in the 1.7 percentile of school proficiency in New Jersey – rated a "1" out of

"10."

        The court denied the motion for reconsideration, finding plaintiff had not

demonstrated any error in the June 24, 2019 ruling. The judge stated he had

made factual findings regarding the education factor. We disagree.

        Although the judge was careful in his review of the statutory factors, he

did not make any findings on the undisputed testimony provided by plaintiff

regarding the Pennsylvania school district.        On reconsideration, plaintiff's

counsel attempted to bolster the argument with documentation regarding the

Pennsylvania school.


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                                        14
      We are satisfied plaintiff's argument concerning the lack of judicial

findings on the education factor was sufficient to warrant additional attention by

the court in determining the motion for reconsideration. Particularly so here

where the court only found one factor against relocation.          The quality of

education offered by a municipality is undeniably paramount to a parent's

consideration of where to establish a residence. Plaintiff's testimony on this

factor should have been considered and weighed by the court in the best interests

analysis. In addition, where the court only relied on its finding that plaintiff was

moving too far away from defendant – the geographical proximity factor – to

deny relocation, it was error not to consider the documentation proffered by

plaintiff's counsel to support plaintiff's earlier contentions regarding the quality

of the education in the Pennsylvania school district. See Cummings, 295 N.J.

Super. at 384 (citing D'Atria v. D'Atria, 242 N.J. Super. 392, 576 (Ch. Div.

1990)) (noting reconsideration should be employed when "new or additional

information [is brought] to the [c]ourt's attention . . . ."); see also Bisbing, 230

N.J. at 335 (citations omitted) (stating that in conducting a best interests

analysis, a trial court may consider documentary evidence).

      We therefore vacate the orders denying plaintiff's application for

relocation and for reconsideration. However, because it has been a year since


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                                        15
these proceedings began, we remand for the trial court to reconsider plaintiff's

motion for relocation. Plaintiff has lived in Tobyhanna for almost a year now.

The parties' son has finished a year of school there; their daughter is entering

kindergarten. The information presented to this court, and previously the trial

court, is stale and incomplete.

      The trial court shall order briefs and hold a hearing as it deems

appropriate. The court shall consider all of the factors under N.J.S.A. 9:2-4(c),

including the current state of plaintiff's employment, housing, the children's

education, and whether the parties complied with the existing parenting time

order or were able to adapt to an agreed-upon parenting schedule. If plaintiff

satisfies her burden under Bisbing and the court finds it is in the best interests

of the children to live in Pennsylvania, the court may consider adjusting the

parenting time order to grant defendant more time with the children during

school vacations, summer, and holidays, if defendant so desires. We commend

the trial court for its careful analysis, but in such a close case, we must hold the

court to a consideration of all of the factors. We have no opinion on the outcome

of the hearing.

      Vacated and remanded to the court for proceedings consistent with this

opinion. We do not retain jurisdiction.


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                                        16
