AARON FENZI VS. JACQUELINE BALLANÂ (FD-09-0720-16, HUDSON COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-4690-15T1
AARON FENZI,
Plaintiff-Appellant,
v.
JACQUELINE BALLAN,
Defendant-Respondent.
__________________________________________
Argued April 25, 2017 – Decided August 25, 2017
Before Judges Espinosa and Grall.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FD-09-0720-16.
Theodore A. Grezlak, III, argued the cause for
appellant (James R. Lisa, on the brief).
Robyne D. LaGrotta argued the cause for
respondent (Lagrotta Law, LLC, attorneys; Ms.
LaGrotta, of counsel and on the brief).
PER CURIAM
After communicating online for several months, the parties
met for the first time in April 2014. Defendant relocated to New
Jersey and moved into plaintiff's home in August 2014. One month
later, the parties learned defendant was pregnant. Their
relationship deteriorated and defendant moved out of plaintiff's
residence in March 2015. She gave birth to "Joey"1 in May 2015.
Defendant relocated to Georgia with Joey in October 2015 without
informing plaintiff.
In October 2015, plaintiff filed a verified complaint and
order to show cause seeking sole legal and residential custody of
Joey. The trial court granted plaintiff sole temporary legal and
residential custody, ordered defendant to return Joey to New
Jersey, to appear in court on November 4, 2015 and suspended her
parenting time until she appeared. Defendant appeared
telephonically, without counsel, on November 12, 2015. The court
entered various orders, and, after mediation was unsuccessful,
conducted a trial in May 2016.
On May 25, 2016, the court entered an order granting joint
legal custody of Joey to the parties and sole residential custody
to defendant. In its oral decision, the court reviewed each of
the factors relevant to a custody determination set forth in
N.J.S.A. 9:2-4(c). The court then relinquished jurisdiction over
Joey to Georgia. Furthermore, the court found defendant did not
1
We use a pseudonym to protect the child's identity.
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act in bad faith when she left New Jersey with Joey, recognizing
she consulted with an attorney who incorrectly advised her it was
legal to do so.
After plaintiff filed a notice of appeal from the May 25,
2016 order, the parties executed a consent order in which they
agreed that the May 25, 2016 custody order "be domesticated to the
State of Georgia with full effect and enforcement as if issued by
a Superior Court of a Georgia County." Thereafter, the consent
order was filed with the Georgia Superior Court.
In his appeal, plaintiff argues the trial court erred when
it failed to analyze "cause" for the child's removal as required
by N.J.S.A. 9:2-2 and that, even if the court had conducted a
relocation analysis, defendant failed to satisfy her burden under
Baures v. Lewis, 167 N.J. 91 (2001). Defendant counters that the
trial court based its decision upon the relief sought by plaintiff,
for sole legal and residential custody. She argues further that,
even if the trial court had conducted a Baures analysis, the result
would have been the same and that, because plaintiff entered into
the consent order to domesticate the custody order in Georgia, he
waived his right to appeal the May 25, 2016 order.
By giving his consent to the domestication of the order in
Georgia, plaintiff agreed that the order as it existed should be
given full faith and credit in that state. Nonetheless, for the
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sake of completeness, we address the merits of plaintiff's
arguments.
For the first time on appeal, plaintiff argues that, because
the removal of Joey from the state was an issue, the trial court
erred in applying a best interests analysis rather than the
analysis articulated in Baures v. Lewis, 167 N.J. 91, 116-17
(2001), applicable to the removal of a child as governed by
N.J.S.A. 9:2-2. Since this appeal was argued, the Supreme Court
decided Bisbing v. Bisbing, ___ N.J. ___ (2017), and abandoned the
Baures standard in favor of a best interests analysis to be applied
"to all interstate relocation disputes under N.J.S.A. 9:2-2 in
which the parents share legal custody." Id. at 3. The Court
defined such disputes as "cases in which one parent is designated
as the parent of primary residence and the other is designated as
the parent of alternate residence and cases in which custody is
equally shared." Id. at 3. The Court directed,
In all such disputes, the trial court should
decide whether there is "cause" under N.J.S.A.
9:2-2 to authorize a child's relocation out
of state by weighing the factors set forth in
N.J.S.A. 9:2-4, and other relevant
considerations and determining whether the
relocation is in the child's best interests.
[Id. at 3-4.]
The Court further instructed that "the best interests
standard applies to the determination of 'cause' under N.J.S.A.
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9:2-2." Id. at 40.
Thus, if this were purely a relocation case in which custody
had been previously determined, the Baures analysis would not
apply. However, as plaintiff acknowledges, even under Baures,
A removal case is entirely different from an
initial custody determination. When initial
custody is decided, either by judicial ruling
or by settlement, the ultimate judgment is
squarely dependent on what is in the child's
best interests.
[Baures, supra, 167 N.J. at 115.]
Because plaintiff's complaint sought the "initial custody
determination," it was entirely appropriate for the trial court
to make that decision based upon an analysis of the child's best
interests.
Although plaintiff challenges the use of the best interests
standard, he does not argue the trial court's analysis under that
standard was flawed or challenge any of the court's findings
regarding the N.J.S.A. 9:2-4(c) factors. In fact, he concedes,
"If defendant were to stay in New Jersey, then the current custody
ruling would have been sufficient." We agree.
The order granting joint legal custody of Joey, sole
residential custody to defendant and relinquishing jurisdiction
to Georgia is affirmed.
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