                                NOT FOR PUBLICATION WITHOUT THE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-0917-18T1

ALEJANDRO MENDOZA,

          Plaintiff-Respondent,

v.

SI-NAE SHIM,

     Defendant-Appellant.
__________________________

                    Argued October 3, 2019 – Decided October 23, 2019

                    Before Judges Koblitz, Whipple, and Mawla.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Bergen County,
                    Docket No. FM-02-2351-09.

                    Robert W. Avery argued the cause for appellant (Avery
                    & Avery, attorneys; Bonnie C. Frost and Matheu D.
                    Nunn, on the briefs).

                    Alejandro Mendoza, respondent, argued the cause pro
                    se.

PER CURIAM
      Defendant Si-Nae Shim appeals from an August 1, 2018 order granting

plaintiff Alejandro Mendoza the ability to remove the parties' children to

Florida, and a September 14, 2018 order, denying reconsideration. We affirm.

      This matter has a lengthy history occasioned by defendant's refusal to

return the children from South Korea, where the family had a short-lived

residence due to the parties' work obligations as music instructors. We need not

explain the details surrounding defendant's actions, except to note the ordeal

concluded when defendant was arrested in Guam, extradited to New Jersey, and

the Bergen County Prosecutor's Office required defendant to return the children

to the United States as a condition of the dismissal of the criminal charges

against her.

      Following the children's return, a sixteen-day divorce trial occurred and

the court entered a judgment of divorce on June 28, 2013. The trial judge

concluded plaintiff testified credibly and defendant did not. The judge granted

plaintiff sole legal custody of the children and defendant supervised parenting

time because he concluded she posed "a substantial flight risk."

      In June 2018, plaintiff filed a motion to remove the children to Florida.

He certified he received an employment offer in Naples, where he would be

earning approximately double his current income. He also certified he had two


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sisters and a niece in Florida, with whom the children were very close. Plaintiff

also requested the court terminate defendant's supervised visitations with the

children, which were one hour per week.

      Defendant filed a cross-motion opposing the removal and sought

unsupervised visitation. Her certification questioned the good faith reasons for

the removal. She claimed plaintiff could earn more income in his current

position in New York and operated without debt, due to a bankruptcy action a

few years earlier.    Defendant also cited several written summaries of the

supervised visitation sessions and a letter from a former visitation supervisor,

touting the success of visitation.

      At oral argument of the motions, the judge issued a tentative decision

summarizing the reasons plaintiff articulated for the removal. The judge added

the following:

                  [Plaintiff's] position is rather straight forward.
            He correctly states that he has sole legal custody over
            the children and believes that it is his prerogative to
            make decisions for the children, based on what he
            believes is in their best interest.

                   ....

                 He notes that the children are doing exceptionally
            well in his care.        Particularly musically and
            academically he acknowledges that moving to Florida
            would effectively terminate [defendant's] weekly in[-]

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                                       3
person supervised visitation with the children. But he
argues that he is willing to work with [defendant] to
make visitations happen in Florida.

      He's also willing to expand the electronic
communications so that [defendant] can communicate
with the children regardless of where they are located.

       [Defendant] strongly opposed [plaintiff's]
request for relocation. She argues that [plaintiff] is
effectively trying to terminate her in[-]person parenting
time. In fairness, this is a practical implication of
[plaintiff's] moving to Florida. [Defendant] attaches
notes . . . of her supervised visitations with the
children[.] . . .

       Those notes span from 2014 through 2016. There
is no dispute in any of those papers that [defendant]
exercises her supervised parenting time with the
children on a regular basis and that the time is enjoyed
by all parties.

      Those documents make it appear that the children
love their mother and their mother loves the children.

      ....

      The allegations of [defendant] are also given
reinforcement from . . . previous Bergen Family Center
supervisors. . . . Both supervisors note that [defendant]
and the children have a loving relationship. [One
supervisor] goes so far as recommending that
[defendant] should be permitted an opportunity to
exercise unsupervised parenting time. That of course
would not be permitted absent a battery of
psychological examinations and[/]or other professional
examinations and professional opinions, to determine
whether or not there is a risk to the children in

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                           4
            remaining in the presence of [defendant] in an
            unsupervised capacity.

                  Because of that, I do intend to sign an order
            granting [plaintiff] the right to relocate to the state of
            Florida.    There has been no showing made by
            [defendant] that there's a change of circumstances . . .
            to readdress the custody aspect of this case.

                  Custody after trial has been vested in [plaintiff].
            He has sole legal custody of the children. He has sole
            decision making for the children.         He has sole
            residential custody of the children and . . . there is no
            need to have a plenary hearing because there's nothing
            to decide.

                  It is not a question of custody. As that has not
            been raised. . . . [T]his is not a joint legal custody case.
            And I don't need to address that.

                  So I do intend to sign an order permitting dad to
            relocate with the children to Florida.

      The lengthy oral argument that followed failed to convince the judge to

change his tentative decision and he entered the August 1, 2018 order granting

the removal. The order modified visitation and allowed defendant to travel to

Florida once per month to enjoy five hours of supervised visitation. The judge

ordered plaintiff to pay for defendant's flights, and defendant was required to

pay for her accommodations in Florida and for the cost of the supervisor.

Defendant was also entitled to have supervised communication with the children

via Skype, Facetime, telephone, or similar platforms, once daily. The judge

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                                         5
denied defendant's request for unsupervised parenting time and a custody

evaluation.

      Defendant filed a motion for reconsideration.      She argued the judge

misapplied the law, she obtained newly-discovered evidence regarding

plaintiff's concealment of information related to his reasons to move to Florida,

and she was unable to afford the costs associated with the monthly visits to

Florida. On September 14, 2018, the judge denied defendant's motion.

      Defendant appealed from the September order and we remanded to the

motion judge for the limited purpose of providing defendant an opportunity to

present the new information she claimed to possess related to the removal. The

motion judge conducted a plenary hearing in July 2019. Defendant testified

plaintiff gave false reasons for the move to Florida because he remained

employed in New York; defendant observed him at work, was aware he

continued to teach six students in New York, and saw his car parked near a

Bergen County residence. Defendant also testified plaintiff misrepresented that

he was relocating to Naples when he in fact moved to Sarasota. The judge made

the following detailed findings:

                    The opinion that I had come to was . . . I was
              permitting [plaintiff] to relocate to Florida. Not a
              particular location within the State of Florida.


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                                       6
       ....

. . . I don't know what the fraud is that would be
committed. I don't find that there was any intentional
act that was uttered or written by him in that regard.

        But the bottom line is that [plaintiff] . . . testified
that the car that [defendant] speaks of is not his. He
owns a minivan in Florida. It's registered in Florida,
and he did attach a copy of a document to demonstrate
that. . . .

       [Plaintiff] says my job is working for a violin
shop that has various stores in Florida, and I teach
violin to students in the area, and I perform in concerts
in Florida, and in other places throughout the world. He
is a concert violinist. It takes him all over the country.
It takes him to many places outside of the country. But
he is employed in Florida. His family is in Florida.
They live in Florida. And they have roots in Florida.
They have a rental house in Florida.

       He testified that the children are attending school
in Florida, and submits a document that one of the
children . . . gained entry into the junior honor society.
He testified that he has a driver's license issued by the
State of Florida. . . . He's employed in Florida. He's
got the letter to prove that he's employed in Florida. In
his [c]ertification he says that everybody, the four —
the children and he and his wife have health insurance
in Florida. He says, what I did in Dumont, I . . . rented
the house. It was not rented out until 2019. On those
occasions [when] he was in New Jersey. What's his
explanation? That [he] had not moved out of New
Jersey, but that he had to get . . . [his possessions] out
of the house, because it's a rental property. . . . He
testified that the moving company came, and they
[came] over the weekends he was here. And during the

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                              7
week there were times when he was boxing the stuff up
. . . [n]ot because he was still a resident of New Jersey,
but the stuff had to be packed up into a moving van, and
he was doing it by himself.

       I don't find that to be fraudulent, the fact that he's
here in New Jersey. The fact that he's working in New
York, did he disclose it? . . . He was still going to be
working in New York. But what he said was credible.
Yes, I had to give them one semester's notice that I was
not going to be continuing at the Manhattan School, but
I had these students there that I've had since a very
young age. I am their instructor, I want to continue to
be their instructor. They're going there with the
understanding that I would be their instructor. So what
does he do? He comes up here fifteen times in the Fall,
and fifteen times in the Spring. He comes up, he flies
in on a Friday night, he flies out Sunday. He has
students on Saturday, three students from New York,
three students from New Jersey. But that does not show
an intention that he was not going to relocate from New
Jersey. It shows the dedication of . . . a person who is
[in] an honorable profession being a teacher. . . .

      ....

       He explains that he was first offered a position
with the violin shop in Tampa. The training occurred
in Tampa. The intention was that they were going to
expand the shops into Naples, but after the move it
didn't pan out. . . . Instead he's a general manager and
a violin specialist at their established Sarasota location.
That's part of life. Business[es] plan to expand, they
change their mind, and they don't expand as they had
thought, or they make business decisions. But I didn't
see anything . . . [that] the results of the [m]otion were
to say that he was limited to go to Naples. He was going


                                                                A-0917-18T1
                             8
            to Florida with the children. He's got family in both
            Naples and in Sarasota.

                  ....

                  With regard to allegations that are made by
            [defendant] that . . . she doesn't have the funds to visit
            the children once a month, as I ordered, since I directed
            that he pay for her flights. . . . I remember I expanded
            [defendant's] ability to have [a] relationship with the
            children by giving her more time in Florida, than she
            was getting in New Jersey because of that.

                  ....

                   The new information, the new evidence that
            [defendant] uses, they're real minor details. It would
            not have affected my decision in allowing him to
            relocate to Florida. Especially in this day and age when
            people travel from [s]tate to [s]tate and cross[-]country.
            It is not unheard of. . . .

                   He's a domiciliary of Florida. He's amply
            demonstrated that. He has sole custody of the children.
            He [h]as demonstrated that this was a move that was
            justified. I was satisfied granting that move. There is
            nothing new here that I would consider to change that
            particular ruling. I do not intend to order that the
            children be relocated to the State of New Jersey. Their
            roots are now in Florida. Their family is in Florida.
            [Defendant] is in New Jersey. [Defendant] is permitted
            to visit with the children.

                                        I.

      An appellate court's scope of review of the Family Part's factfinding

function is limited. See N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J.

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                                        9
Super. 451, 476 (App. Div. 2012). The Family Part's factual findings "are

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

O'Connor v. O'Connor, 349 N.J. Super. 381, 400-01 (App. Div. 2012) (quoting

Cesare v. Cesare, 154 N.J. at 411-12 (1998)). This traditional standard of review

is expanded when the court committed an alleged error in evaluating the

underlying facts. MacKinnon v. MacKinnon, 191 N.J. 240, 254 (2007).

      Nevertheless, a reviewing court should accord deference to the Family

Part's "findings unless they 'went so wide of the mark that a mistake must have

been made.'" Ibid. (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189

N.J. 261, 279 (2007)). "Because of the family courts' special jurisdiction and

expertise in family matters, appellate courts should accord deference to fa mily

court factfinding[,]" and the conclusions that flow logically from those findings

of fact. Cesare, 154 N.J. at 413. "Although we defer to the trial court's findings

of fact, especially when credibility determinations are involved, we do not defer

on questions of law." N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J.

Super. 320, 330 (App. Div. 2011) (citing N.J. Div. of Youth & Family Servs. v.

R.L., 388 N.J. Super. 81, 88-89 (App. Div. 2006)).

      On appeal, defendant argues the motion judge misapplied the law when

he permitted the removal because he failed to apply the best interests factors.


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                                       10
She argues the judge did not address the proper removal standard for "matters

where one parent has sole legal custody and the other parent has weekly

parenting time[.]" Defendant contends the judge created a new legal standard

for non-custodial parents in removal cases by shifting the burden to the non-

custodial parent to demonstrate a change in circumstances to defeat the removal

application. She argues the trial court should have held a plenary hearing to

determine whether relocation of the children to Florida was in their best

interests.   Defendant also argues the judge failed to consider the evidence

presented at the plenary hearing on her motion for reconsideration, namely,

evidence plaintiff was still working in New York and driving a car in the New

York/New Jersey area. She also raises objections to the content and format of

plaintiff's appellate brief.

      We are unpersuaded that the motion judge committed reversible error or

misapplied the law. N.J.S.A. 9:2-2 states a parent who seeks to remove a child

from the state when the other parent does not consent must demonstrate "cause"

for the removal. As we recently stated, "under N.J.S.A. 9:2-2, '"cause" should

be determined by a best interests analysis in which the court will consider all

relevant factors set forth in N.J.S.A. 9:2-4(c), supplemented by other factors as

appropriate.'" Dever v. Howell, 456 N.J. Super. 300, 313 (App. Div. 2018)


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                                      11
(quoting Bisbing v. Bisbing, 230 N.J. 309, 338 (2017)). The statutory best

interests factors require the judge adjudicating custody and parenting time

disputes to consider the following:

            the parents' ability to agree, communicate and
            cooperate in matters relating to the child; the parents'
            willingness to accept custody and any history of
            unwillingness to allow parenting time not based on
            substantiated abuse; the interaction and relationship of
            the child with its parents and siblings; the history of
            domestic violence, if any; the safety of the child and the
            safety of either parent from physical abuse by the other
            parent; the preference of the child when of sufficient
            age and capacity to reason so as to form an intelligent
            decision; the needs of the child; the stability of the
            home environment offered; the quality and continuity
            of the child's education; the fitness of the parents; the
            geographical proximity of the parents' homes; the
            extent and quality of the time spent with the child prior
            to or subsequent to the separation; the parents'
            employment responsibilities; and the age and number
            of the children. A parent shall not be deemed unfit
            unless the parents' conduct has a substantial adverse
            effect on the child.

            [N.J.S.A. 9:2–4(c).]

      A parent possessed with sole legal custody has the sole authority to make

the major decisions on behalf of the children. See Pascale v. Pascale, 140 N.J.

583, 596 (1995). To be certain, this does not absolve a sole legal custodian of

demonstrating that an out-of-state removal is in the children's best interests, but

defendant concedes custody was not an issue here. The only consideration here

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                                       12
was the effect of the removal on the children's best interests as related to the

frequency and in-person nature of the visitation.

      We are satisfied the motion judge addressed whether the removal was in

the best interests of the children as it related to defendant's visitation. Indeed,

when pressed at oral argument before us to identify what N.J.S.A. 9:2-4 factor

was overlooked by the motion judge, defendant could only identify the

following factors: "the safety of the child and the safety of either parent from

physical abuse by the other parent" and "the quality and continuity of the child's

education[.]" There is no evidence plaintiff posed a danger to the children and

despite defendant's recent history of positive contacts with the children at

visitation, this did not undo the sordid history of her having withheld the

children from plaintiff until she was arrested and threatened with a criminal

prosecution.

      Additionally, the evidence in the record demonstrated the removal did not

disrupt the children's educations, and they were thriving in their Florida school.

The N.J.S.A. 9:2-4 factors did not preponderate in defendant's favor. We are

satisfied the motion judge did not overlook the children's best interests.

      Indeed, not only did the judge expand and facilitate defendant's visitation,

he took into consideration the fact she would be losing weekly in-person contact


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                                       13
by requiring personal contact via online video platforms. See McCoy v. McCoy,

336 N.J. Super. 172, 182 (App. Div. 2001) (concluding a parent's "suggested use

of the [i]nternet to enhance visitation was both creative and innovative" and

reversing the judge's dismissal of daily internet video contact between the

children and the parent remaining in New Jersey).

      The judge's decision to permit the removal was supported by the

substantial, credible evidence in the record, and was neither an abuse of

discretion, nor a misapplication of law.    We have not addressed the other

arguments raised in defendant's brief because they are without sufficient merit

to warrant discussion. Rule 2:11-3(e)(1)(E).

      Affirmed.




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