                   NOT FOR PUBLICATION WITHOUT THE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




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



                                                2                                     A-5047-14T1
would have primary residential custody, with the condition that

she not relocate out of state.

      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



                                      3                                    A-5047-14T1
         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,
         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.



                                 4                         A-5047-14T1
       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

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.




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
                                                I

       "Because       of    the    family      courts'   special     jurisdiction      and

expertise      in     family      matters,      appellate      courts   should    accord

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

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



                                                6                                A-5047-14T1
MSA in bad faith and Jamie proves a substantial unanticipated

change    in   circumstances      occurred       should    she   be    accorded      the

benefit of the Baures analysis.

                                            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




                                            7                                 A-5047-14T1
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
           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




                                       8                                A-5047-14T1
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

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




                                             9                                      A-5047-14T1
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.

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:




                                          10                             A-5047-14T1
             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
             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



                                          11                                 A-5047-14T1
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

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



                                         12                               A-5047-14T1
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.'"

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




                                        13                                  A-5047-14T1
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

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




                                          14                             A-5047-14T1
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).

       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




                                            15                                        A-5047-14T1
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.

    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
