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Loonan v. Marino

Decided: February 11, 1981.


Imbriani, J.s.c.


This case raises the question whether the doctrine of forum non conveniens should be applied in a child custody case and, if so, does it require the transfer of venue in this case?

The parties were divorced in Connecticut in 1976 and the mother was given custody of twin children, now 11 years of age. Shortly thereafter both parties moved to New Jersey -- he to Somerset County, she to Monmouth County. The father recently filed a complaint in New Jersey seeking a change of custody, and pursuant to R. 4:76 venue was properly laid in Somerset County. The mother brings this motion to transfer venue to Monmouth County.

It is urged that a change of venue would make court appearances more convenient to the children, as well as for the

witnesses who know and understand them best, their friends, teachers, doctors and religious leaders. And since the purpose of the hearing is to determine what is in the best interest of the children, it is said that it is absolutely essential that the court hear as many of these witnesses as possible, which is more likely to occur if the forum is convenient to them.

The mother also claims that one of the reasons this complaint was filed in Somerset County is to harass and vex her. She acknowledges that she is afflicted with multiple sclerosis (MS), but says that while it does not interfere with her ability to properly care for and nurture the children, it would present a substantial problem if she were required to travel to Somerset County for a trial. (At oral argument counsel for the father opined that the trial may be protracted and could last as long as three weeks.)

Two preliminary observations. First, we are not concerned with jurisdiction. This court has state-wide jurisdiction and clearly has authority to render a valid judgment. Second, there is no suggestion that the father improperly or erroneously laid venue in Somerset County. See R. 4:76.

In the past five years the increase in post-judgment of divorce motions has been explosive. And one of the problems receiving increasing attention is, where should venue be laid in a custody case when the parties are both residents of New Jersey, but reside in different counties? Interstate acts govern the interstate cases. But when both parties reside in different counties within New Jersey we must look to our statutes and Rules of Court. R. 4:76 predicates venue on the "domicile" of the plaintiff.

The doctrine of forum non conveniens provides that even though a court has jurisdiction over a case, it is not duty bound to accept it and for sufficient reason may decline jurisdiction and either dismiss the action or transfer it to a more convenient forum. Vargas v. A.H. Ball Steamship Co. , 25 N.J. 293 (1957); cert. den. 355 U.S. 958, 78 S. Ct. 545, 2 L. Ed. 2d 534 (1958); 20 Am.Jur. 2d, Courts , ยง 172.

In spite of its Latin designation, the use of the phrase is not of ancient English origin. It was first mentioned in Scotland in the middle of the 19th Century and later in that century in England. Baucher, "The Inconvenient Federal Forum," 60 Harv.L.Rev. 908, 909-910 (1947). Courts in America were slow to adopt its use, probably impeded to a great extent by the admonition of Chief Justice Marshall in Cohens v. Virginia , 6 Wheat. 264, 404, 19 U.S. 264, 404, 5 L. Ed. 257, 291 (1821), that "[w]e have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the Constitution". However, it is interesting to note that long before the phrase forum non conveniens was coined, its philosophy was expressed and used by two early cases in New Jersey that said a trial court must balance "inconvenience against inconvenience" and ordered that venue be transferred to avoid "great inconvenience and injury to the defendant and those who had dealings with them." Kerr v. State Bank , 4 N.J.L. 415 (Sup.Ct.1817); Bell v. Morris Canal & C. , 15 N.J.L. 63, 66-67 (Sup.Ct.1835).

In 1947, after applying the doctrine in several admiralty and F.E.L.A. cases, the United States Supreme Court finally (by a 5-4 decision) sanctioned its use in an ordinary case in spite of the fact there there was compliance with the rules of jurisdiction and venue, Gulf Oil Corp. v. Gilbert , 330 U.S. 501, 67 S. Ct. 839, 91 L. Ed. 1055 (1947), even though it created some difficulty in its application because the only sanction available in the federal courts was to dismiss the action since there existed no power to transfer cases to other districts. However, Congress quickly remedied the situation in 1948 when it revised 28 U.S.C.A. , par. 1404(a), to provide that "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."

It was not until Gore v. United States Steel Corp. , 15 N.J. 301 (1954), that its use was sanctioned ...

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