                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-5047-14T1


JAIME TAORMINA BISBING,
                                            APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                                   April 6, 2016
v.                                               APPELLATE DIVISION

GLENN R. BISBING, III,

     Defendant-Appellant.
__________________________

            Argued March 2, 2016 — Decided April 6, 2016

            Before Judges Fuentes, Koblitz, and Gilson.

            On appeal from Superior Court of New Jersey,
            Chancery   Division,  Family   Part,  Sussex
            County, Docket No. FM-19-324-14.

            Matheu   D.  Nunn   argued   the   cause   for
            appellant    (Einhorn,     Harris,     Ascher,
            Barbarito & Frost, PC, attorneys; Mr. Nunn,
            of counsel; Mr. Nunn and Bonnie C. Frost, on
            the brief).

            Paul H. Townsend argued the cause for
            respondent (Townsend, Tomaio & Newmark, LLC,
            attorneys; Mr. Townsend, of counsel; Mr.
            Townsend, Maria A. Giammona, and Valerie R.
            Wane, on the brief).

     The opinion of the court was delivered by

KOBLITZ, J.A.D.

     In this appeal, we examine the effect of a non-relocation

agreement   on   a   subsequent   request   by     the   primary      custodial
parent    to    relocate       to   a    distant      state.     Defendant           Glenn   R.

Bisbing, III1 appeals from the Family Part's April 24, 2015 and

July 14, 2015 orders allowing his former wife, plaintiff Jaime

Taormina Bisbing, to relocate with the parties' then eight-year-

old twin girls without first holding a plenary hearing.                                      We

reverse and remand for a plenary hearing.

     The parties were married in 2005 and the girls were born in

November       2006.        Both    parties         were    employed       as   highly-paid

professionals, with Jaime earning more money than Glenn.

     In    early       2013,    Glenn      investigated        job     opportunities         in

Colorado and California.                 The parties separated in August, and

in   November          of   that        year,       Jaime   began      a    long-distance

relationship with a resident of Utah who had children from a

previous marriage.           The Utah resident is the owner of a business

in Idaho and also has business interests that require him to

travel frequently to California and Louisiana.

     On    March       8,   2014,       the     parties     entered     into     a    marital

settlement agreement (MSA) following the parties' participation,

without counsel, in mediation with an attorney-mediator.                                     The

parties agreed to joint legal custody.                        They agreed that Jaime

would have primary residential custody, with the condition that

she not relocate out of state.


1 We will call the parties by their first names for ease of
reference. No disrespect is intended.



                                                2                                     A-5047-14T1
      Pursuant to Article 1.2 of the MSA, Jaime also agreed to

"broad, reasonable and liberal timesharing" of the children with

Glenn.   Glenn was provided parenting time with his daughters on

Father's Day, Glenn's birthday, "every other weekend and on one

weeknight   during    the   weeks    when    he   does   not    have    parenting

time."   Glenn had parenting time on two continuous weeks during

the   summer;   and    every    other       Thanksgiving,       Christmas      Eve,

Christmas    Day,    New    Year's   Eve,     New   Year's       Day,   and      the

children's school breaks.        Under Article 1.3, both parties were

also "entitled      to attend all of the Children's sporting and

extracurricular activities no matter whose parenting day they

might fall on."

      Article   1.9    Relocation       provides     the       following      terms

regarding a change of residence:

            The parties agree that each shall inform the
            other   with  respect   to  any   change  of
            residence concerning himself or herself or
            the said minor Children for the period of
            time wherein any provision contained in this
            Agreement remains unfulfilled.   The parties
            represent that they both will make every
            effort to remain in close proximity, within
            a fifteen (15) minute drive from the other.
            Neither party shall permanently relocate
            with the Children from the State of New
            Jersey without the prior written consent of
            the other.    Neither parent shall relocate
            intrastate further than 20 miles from the
            other party.     In the event either party
            relocates more than 20 miles from the other
            party, the parties agree to return to
            mediation to review the custody arrangement.
            In the event a job would necessitate a move,



                                      3                                    A-5047-14T1
          the parties agree to discuss this together
          and neither will make a unilateral decision.
          Neither party shall travel with the minor
          Children   outside  of  the   United  States
          without the prior written consent of the
          other party.

               The parties hereby acknowledge that the
          Children's quality of life and style of life
          are provided equally by Husband and Wife.

               The parties hereby acknowledge a direct
          causal connection between the frequency and
          duration of the Children's contact with both
          parties and the quality of the relationship
          of the Children and each party.

               The parties hereby acknowledge that any
          proposed move that relocates the Children
          any further away from either party may have
          a detrimental impact upon the frequency and
          duration of the contact between the Children
          and the non-moving party.

    On April 16, 2014, a final judgment of divorce (JOD) was

entered incorporating the MSA.          According to Glenn, after the

divorce, he was "intricately involved in all aspects of the

girls' lives."     He coached their soccer team, took them to ski

club activities, and attended their school events.

    One month after the divorce, Jaime sent an e-mail to Glenn

informing him that, although she received no alimony, she was

planning to leave her job on July 1, 2014, to become a full-time

stay-at-home parent, which she did.

    On   January    8,   2015,   less   than   nine   months   after    the

divorce, Jaime called Glenn to notify him of her intention to

get married to the Utah resident and relocate to Utah.                 Jaime



                                    4                            A-5047-14T1
asked for Glenn's permission to move with their daughters to

Utah.     Glenn refused, stating, "You can move, just leave the

girls with me."

       On March 16, eleven months after the divorce, Jaime filed a

motion seeking to relocate with the children to Utah without the

need    for   a    plenary      hearing.        The   court      granted    the     motion

allowing relocation without holding a plenary hearing on the

condition     that    a    visitation       schedule        be   established       through

mediation, signing the order on April 24, 2015.                            On July 14,

2015,    after       an    unsuccessful          mediation,       with     only       Jaime

suggesting a parenting plan, the court issued a supplemental

order establishing a parenting time and communication schedule

using most of Jaime's suggestions.2

       Eleven     days    later,    Jaime       and   the    children      "left     for    a

vacation to Utah."              Three days thereafter, Jaime permanently

relocated with the children in Utah.



                                            I

       "Because     of    the   family     courts'     special      jurisdiction         and

expertise     in    family      matters,    appellate        courts      should     accord



2 We have reviewed the court's May 18, 2015 letter supplementing
the reasons placed on the record as well as its written
statement of reasons attached to the July 14 order. See R. 2:5-
1(g) (permitting the trial judge to "supplement a filed
opinion").



                                            5                                      A-5047-14T1
deference to family court factfinding."                   Cesare v. Cesare, 154

N.J.    394,    413    (1998).     Unlike      findings    of   fact,      "appellate

review of legal determinations is plenary."                 State v. Reece, 222

N.J. 154, 167 (2015) (quoting State v. Handy, 206 N.J. 39, 45

(2011)).       Here, the family court did not hold a plenary hearing,

nor was it familiar with the parties through extensive motion

practice.

       We reverse and remand for a plenary hearing to determine

first whether Jaime negotiated the MSA in bad faith.                         If so, a

"best    interests      of   the   child"      analysis    must      be    conducted.

Second, if bad faith is not demonstrated, the trial court must

then consider whether Jaime proved a substantial unanticipated

change in circumstances warranting avoidance of the agreed-upon

non-relocation         provision    and    simultaneously       necessitating          a

Baures3 analysis.         If the MSA was negotiated in good faith, yet

Jaime    fails    to    satisfy    her    burden   of    proving     a    substantial

unanticipated change in circumstances, the court must apply the

same "best interests" analysis as required in the first step.

Only if Glenn is unable to demonstrate that Jamie negotiated the

MSA in bad faith and Jamie proves a substantial unanticipated

change    in    circumstances      occurred     should    she   be       accorded   the

benefit of the Baures analysis.



3   Baures v. Lewis, 167 N.J. 91, 116-18 (2001).



                                           6                                  A-5047-14T1
                                           II

    The legal authority governing a custodial parent's request

for relocation is extensive and well-established.                 Pursuant to

Title    Nine,   the     children     of   divorced   parents   shall    not   be

removed   from    the    Superior     Court's   jurisdiction    "without       the

consent of both parents, unless the court, upon cause shown,

shall otherwise order."         N.J.S.A. 9:2-2.        One of the underlying

purposes of the statute involving removal is to preserve the

parent-child relationship of the non-custodial parent and the

child.    See Cooper v. Cooper, 99 N.J. 42, 52-53, 55 (1984).

    After a divorce, a custodial parent's request to relocate

with the parties' children presents our courts "with difficult

and often heart-wrenching decisions."                 Morgan v. Morgan, 205

N.J. 50, 54 (2011).        "In circumstances where the [non-custodial]

parent has a healthy, meaningful relationship and bond with the

child[ren],      there    are   few    circumstances    where   the     judicial

determination [of removal] will not adversely affect the parties

and the child."         O'Connor v. O'Connor, 349 N.J. Super. 381, 384

(App. Div. 2002).         Although relocation was rarely permitted by

our courts in the past, our Supreme Court recently discussed a

more modern view:

            Over time, there has been a shift in
            relocation law across the country.      That
            shift has resulted from several factors: the
            mobility of the population, advances in
            technology, the notion that what is good for



                                           7                            A-5047-14T1
            the custodial parent is good for the
            children of the divorce, and a renewed
            recognition that "[t]he custodial parent who
            bears the burden and responsibility for the
            child is entitled, to the greatest possible
            extent, to the same freedom to seek a better
            life for herself or himself and the children
            as enjoyed by the noncustodial parent."

            [Morgan, supra, 205 N.J. at 62 (alteration
            in original) (citations omitted) (quoting
            Cooper, supra, 99 N.J. at 55).]

    "[I]n determining the standard to be applied to a parent's

removal application, the focus of the inquiry is whether the

physical    custodial   relationship       among   the   parents   is    one   in

which one parent is the 'primary caretaker' and the other parent

is the 'secondary caretaker.'"         O'Connor, supra, 349 N.J. Super.

at 385.      If the parents truly share both physical and legal

custody, "the party seeking the change in the joint custodial

relationship must demonstrate that the best interests of the

child   would   be   better   served       by   residential    custody     being

primarily vested with the relocation parent."                 Ibid.      If one

parent serves as the primary caretaker, the custodial parent's

request to relocate a child is governed by the Baures two-part

test.      Baures, supra, 167 N.J. at 116-19, 122.                 Pursuant to

Baures's two-pronged inquiry, the moving party has the burden of

proving by a preponderance of the credible evidence "that (1)

there is a good faith reason for the move and (2) that the move

will not be inimical to the child's interests."               Id. at 118.       To




                                       8                                A-5047-14T1
determine whether to order removal, a court must assess twelve

"factors      relevant   to     the    plaintiff's         burden     of    proving      good

faith and that the move will not be inimical to the child's

interest."      Id. at 116-17.

       The initial burden on the movant "is not a particularly

onerous one."         Id. at 118.       Once the moving party makes a prima

facie showing, the burden shifts to the non-moving party to

"produce evidence opposing the move as either not in good faith

or inimical to the child's interest."                    Id. at 119.

       The    Baures    standard      "accords          particular    respect       to    the

custodial     parent's    right       to    seek    happiness        and   fulfillment."

MacKinnon      v.   MacKinnon,        191   N.J.        240,   257   (quoting       Baures,

supra, 167 N.J. at 97), stay denied, 551 U.S. 1177, 128 S. Ct.

7, 168 L. Ed. 2d 784 (2007).                 We note, in the context of this

case,   the    late    Justice     Schreiber's           concurrence,       which     stated

that    "[s]ubstantial        deference      is    to     be   accorded      to   parents'

mutually-agreed-upon          decisions          with     respect     to    custody       and

visitation,"        including    "the       parents'      agreement        regarding      the

physical situs of the children."                   Cooper, supra, 99 N.J. at 66

(Schreiber, J., concurring).

       A plenary hearing is necessary "where a prima facie showing

has been made that a genuine issue of fact exists bearing upon a

critical question."           See Barblock v. Barblock, 383 N.J. Super.

114, 123 (App. Div.) (quoting Pfeiffer v. Ilson, 318 N.J. Super.



                                             9                                      A-5047-14T1
13, 14 (App. Div. 1999)), certif. denied, 187 N.J. 81 (2006).

Here, Glenn raises the question of whether Jaime negotiated the

custody provisions in good faith.             In Shea v. Shea, the parties

entered    into   an    agreement     establishing     "joint   legal   custody,

with [the] defendant designated as parent of primary residence."

384 N.J. Super. 266, 270 (Ch. Div. 2005).                 Four months later,

the   defendant        filed   an     application     seeking    permission    to

relocate with the child.             Id. at 268-69.      The plaintiff argued

that the defendant manipulated the Baures procedures "by first

settling    the   divorce,     and     immediately    thereafter     filing   for

removal,     effectively        depriving      [the     plaintiff]      of    the

opportunity to contest custody."              Id. at 268.       He alleged that

he never would have agreed to the settlement "had he known that

[the] defendant was shortly thereafter going to seek an order

for out-of-state removal."            Ibid.   In a published opinion, Judge

Millard determined that the parties were entitled to a plenary

hearing.    Id. at 273-74.          Judge Millard opined:

            It seems only fair and equitable, that where
            a request for removal comes shortly after
            the settlement of the Final Judgment of
            Divorce,   and    the   material   facts   and
            circumstances forming the good faith reason
            for the removal request were known at the
            time of the entry of the final judgment, a
            party opposing the removal be entitled to
            contest custody under the best interests
            analysis,   irrespective    of   whether   the
            parties   had   a    true   shared   parenting
            arrangement.   In effect, the party opposing
            removal is restored to the position he or



                                         10                             A-5047-14T1
             she held prior to the Final Judgment of
             Divorce.       To    rule   otherwise   could
             potentially       encourage      disingenuous
             settlements, encourage a party to use the
             Baures line of cases as a sword, or
             alternatively compel a cautious party to
             exhaustively litigate custody when not truly
             necessary.     The moving party must, of
             course, initially make out a prima facie
             case for removal under Baures (good faith
             reason for removal and not inimical to
             interests of child) before the court would
             entertain such a custodial application.

             [Id. at 271-72.]

      Unlike in Shea, when Jaime entered into the agreement, she

may   not    have    definitely      known      of   "the    material    facts      and

circumstances       forming    the    good      faith   reason   for    the   removal

request" — that she was going to marry the Utah resident.                           See

id.   at    271.      The   parties    here,      however,    agreed     to    a   non-

relocation provision that did not exist in Shea.                            Thus, for

reasons as compelling as those in Shea, Glenn is entitled to a

plenary     hearing    to     establish      whether     Jaime     manipulated      the

situation to obtain favorable Baures removal procedures.                            See

id. at 271-72.        If Glenn proves the existence of manipulation,

"fundamental fairness" requires the trial court to apply the

"best interests of the child" standard rather than the Baures

standard.     See id. at 273-74.

      Because      Jaime    sought    to   relocate      shortly    after     entering

into a non-relocation agreement, we adopt the procedures in Shea

and remand to hold a plenary hearing.                   The parties entered into



                                           11                                 A-5047-14T1
an MSA in March 2014, which was incorporated into the parties'

JOD in April 2014.          At the time of the agreement, Jaime had been

dating her current husband for approximately four months.                         She

left her well-paying job to stay home with her children three

months after her divorce, and informed Glenn of her impending

nuptials and desire to relocate six months after that.                        Similar

to   the   situation     in    Shea,    the     close    proximity     between    the

parties'     agreement      and   Jaime's       plans    to   relocate      provides

evidence     of     suspicious       circumstances       requiring      a     plenary

hearing.     See id. at 269, 273.            If, after holding a hearing, the

family court finds that Jaime negotiated in bad faith, it should

then analyze the relocation request under a "best interests"

analysis.

                                         III


      If the family court finds that Jaime negotiated in good

faith,     without    manipulative           intent,    the   court    must    still

consider the impact of the carefully considered non-relocation

provision.

      "New Jersey has long espoused a policy favoring the use of

consensual agreements to resolve marital controversies."                          J.B.

v.   W.B.,    215    N.J.     305,     326    (2013)    (quoting      Konzelman    v.

Konzelman, 158 N.J. 185, 193 (1999)).                   "The basic contractual

nature of matrimonial agreements has 'long been recognized.'"




                                         12                                 A-5047-14T1
Sachau v. Sachau, 206 N.J. 1, 5 (2011) (quoting Petersen v.

Petersen, 85 N.J. 638, 642 (1981); Harrington v. Harrington, 281

N.J. Super. 39, 46 (App. Div.), certif. denied, 142 N.J. 455

(1995); Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div.

1995)).     Consensual settlement agreements are subject to the

"changed circumstances" doctrine.               Lepis v. Lepis, 83 N.J. 139,

148    (1980).     "A     party     seeking     modification        of   a   judgment

incorporating      a     [property        settlement       agreement]        regarding

custody or visitation, must meet the burden of showing changed

circumstances and that the agreement is now not in the best

interests of a child."             Abouzahr v. Matera-Abouzahr, 361 N.J.

Super. 135, 152 (App. Div.), certif. denied, 178 N.J. 34 (2003);

see Walles v. Walles, 295 N.J. Super. 498, 517 (App. Div. 1996)

(stating that "a party seeking modification of a judgment of

divorce     must        demonstrate         a      substantial           change      in

circumstances").          When    conducting       a    change   in    circumstances

analysis, the court must address all relevant considerations,

"including the parties' understanding at the time of execution

of the [marital settlement agreement]."                     Glass v. Glass, 366

N.J.    Super.   357,     376     (App.    Div.)       (requiring     the    court   to

consider    "the       reasonable     expectations"         of   the     contracting

parties), certif. denied, 180 N.J. 354 (2004).

       Article 1.9 of the MSA requires the prior written consent

of the other party before relocation.                   The language of the MSA



                                          13                                  A-5047-14T1
and the parties' conduct evidence an intent for the children to

remain in New Jersey.          Jaime acknowledged that the relocation

provision was negotiated between the parties.              See Minkowitz v.

Israeli, 433 N.J. Super. 111, 138 (App. Div. 2013) (stating that

an agreement reached voluntarily "should be enforced").                    Thus

Jaime,   in    a     written   and   voluntarily    agreed-upon    contract,

specifically surrendered her "freedom to seek a better life" in

another state while obtaining primary custody of the children,

and was well aware of that agreement when she chose to remarry

and move far away.         See Morgan, supra, 205 N.J. at 62 (quoting

Cooper, supra, 99 N.J. at 55).

       Two central reasons for moving are for new employment or

remarriage.        See Baures, supra, 167 N.J. at 96 ("[R]elocation

for employment purposes is common.            On a personal level, people

remarry and move away."); see, e.g., Morgan, supra, 205 N.J. at

56 (remarriage); MacKinnon, supra, 191 N.J. at 244 (employment).

In   their    agreement,   the   parties     discussed   relocation   on    the

basis of new employment.         Remarriage, however, was not mentioned

in the agreement.        Perhaps testimony would reveal whether such

an eventuality was considered.             See Pacifico v. Pacifico, 190

N.J.   258,    267    (2007)   (permitting    an   evidentiary    hearing    to

determine the parties' intentions when entering into a property

settlement agreement).




                                      14                              A-5047-14T1
      On remand, if Glenn is unable to demonstrate bad faith,

Jaime has the opportunity of proving a substantial unanticipated

change in circumstances to trigger the court's consideration of

the Baures factors.              If the court determines that the Baures

procedure       is   appropriate,        then       it    must   gauge       as    one     of    the

factors, as it failed to do in its decision on the removal

motion, the effect on the children of moving away from both

parents' extended             families.        Baures,      supra, 167            N.J.     at 117

(identifying as one of the factors "the effect of the move on

extended family relationships").

      If    Jaime        is    unable     to        demonstrate         an        unanticipated

substantial change in circumstances, even if she negotiated the

MSA   in   good      faith,      the    family       court       must   apply        the    "best

interests" standard to determine removal.                         If Jaime's remarriage

was anticipated, or should have been anticipated, then Glenn

should     be     able    to     rely     on    the        non-relocation           provision.

Although    Baures       "accords       particular         respect      to    the    custodial

parent's        right    to     seek     happiness         and     fulfillment,"            Jaime

bargained away this preference and the non-relocation provision

should be enforced to the limited extent of modifying the usual,

preferential         treatment     accorded         the    primary      caretaker's             good

faith desire to relocate.               See id. at 97.




                                               15                                        A-5047-14T1
     Reversed and remanded to the        Family Part   for a plenary

hearing to be conducted in an expedited fashion within sixty

days.   We do not retain jurisdiction.




                                16                           A-5047-14T1
