Jaime Taormina Bisbing v. Glenn R. Bisbing, Iii
137 A.3d 535
| N.J. Super. Ct. App. Div. | 2016Background
- Parties divorced in 2014; MSA incorporated into JOD provided Jaime primary residential custody and a non-relocation clause forbidding permanent out-of-state moves without the other parent's written consent.
- MSA also provided detailed shared parenting time and an expectation parties remain within close proximity.
- Within a year of the divorce Jaime became engaged to a Utah resident, left her job to be a stay-at-home parent, and sought to relocate with the twin daughters to Utah.
- Jaime filed a motion to relocate; the Family Part allowed relocation without a plenary hearing and adopted a parenting schedule after unsuccessful mediation; Jaime moved to Utah shortly thereafter.
- Glenn appealed, arguing the court erred by not holding a plenary hearing and by applying the Baures relocation framework without first resolving whether the non-relocation agreement was negotiated in bad faith or whether changed circumstances exist.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a plenary hearing was required before permitting relocation despite the MSA non-relocation clause | Jaime argued relocation relief could be decided without a plenary evidentiary hearing and by mediation/limited process | Glenn argued the court must hold a plenary hearing to test credibility, bad faith, and changed-circumstances given the recent MSA and non-relocation term | Reversed and remanded: a plenary hearing is required in this case and must address bad faith and changed-circumstances issues |
| Whether Jaime negotiated the MSA in bad faith to manipulate post-judgment removal procedures | Jaime implicitly denied manipulation, asserting good-faith negotiation | Glenn asserted Jaime negotiated to obtain custody while intending to relocate soon after, thereby manipulating Baures procedures | Court held bad-faith manipulation is a live issue that must be litigated at plenary; if proven, apply best-interests standard rather than Baures |
| If no bad faith, whether Jaime must show a substantial unanticipated change in circumstances to avoid the non-relocation provision | Jaime contended her remarriage and changed employment/household circumstances justified consideration under Baures | Glenn contended the non-relocation clause should be enforced and that Jaime must prove substantial, unanticipated change to trigger Baures | If no bad faith, Jaime must first prove a substantial unanticipated change; only then should the court apply the Baures two-part test |
| Standard to apply if (a) bad faith not shown and (b) no substantial unanticipated change | Jaime argued Baures should govern because primary-caretaker status entitles her to relocation deference | Glenn argued enforcement of the bargained non-relocation clause limits the usual Baures preference and, absent change or bad faith, a best-interests analysis should govern | If Jaime cannot show a substantial unanticipated change, the MSA's non-relocation provision limits Baures deference and the court must apply a best-interests analysis to determine custody/relocation |
Key Cases Cited
- Cesare v. Cesare, 154 N.J. 394 (appellate deference to family court factfinding)
- Cooper v. Cooper, 99 N.J. 42 (purpose of removal statute: preserve noncustodial parent relationship)
- Baures v. Lewis, 167 N.J. 91 (two-part test for custodial parent relocation: good faith and not inimical to child's interests)
- Morgan v. Morgan, 205 N.J. 50 (modern view of relocation balancing custodial parent’s freedom against child’s interests)
- Lepis v. Lepis, 83 N.J. 139 (changed-circumstances doctrine for modifying agreements affecting custody)
- Shea v. Shea, 384 N.J. Super. 266 (Ch. Div.) (plenary hearing required where removal follows closely after settlement suggesting manipulation)