On appeal from the Superior Court of New Jersey, Chancery Division, Somerset County.
Bischoff, King and Polow. The opinion of the court was delivered by Polow, J.A.D.
[182 NJSuper Page 308] On leave granted to appeal from an interlocutory order plaintiff wife attacks a pendente lite determination restraining her from proceeding with a Nebraska custody action and awarding joint custody of two children in conflict with a previous Nebraska decree. She also seeks a remand for reconsideration of the interim support order, characterized by her as "unreasonably
low." There are several basic conflicting factual allegations which must be resolved to determine whether jurisdictional prerequisites favor New Jersey or Nebraska as an appropriate forum under the Uniform Child Custody Jurisdiction Act (UCCJA), N.J.S.A. 2A:34-28 et seq. Hence, we remand for a plenary hearing and full compliance with the procedural requirements of the act as necessary to resolve the jurisdictional conflict.
The parties were married in the State of Nebraska on July 1, 1972. They then moved to New Jersey where they both lived and worked until their separation in July 1980, when plaintiff left for Nebraska with the two children, five months and three years of age, respectively. Plaintiff took them to the home of her parents. On July 30, 1980 she obtained a temporary custody order from the District Court of Lancaster County, Nebraska. Although defendant was given notice, he made no appearance there nor did he attempt to contest either the jurisdiction or the substantive determination of the Nebraska court. A subsequent decree, entered December 11, 1980, adjudicated "a legal separation of the parties" and awarded custody of both children to plaintiff. It further specified that the children "shall not be removed from the State of Nebraska." Defendant took no action in either that state or this until plaintiff instituted the present action here for separate maintenance on December 31, 1980, demanding support for herself and the children. Simultaneously therewith, plaintiff applied for pendente lite relief, which defendant countered with a cross-motion, dated January 21, 1981, for joint custody and other relief. Based upon certifications of the parties and oral argument, the trial judge refused to recognize the Nebraska custody order. He concluded that under the UCCJA, which had been adopted in both states prior to the separation of these parties, Nebraska lacked the jurisdictional prerequisites to adjudicate the dispute.
The marriage had its turbulent moments. Plaintiff alleges that she finally left in July 1980 only after defendant "advised me that he had been to see an attorney and wanted a divorce."
According to her, defendant had been cohabiting with a paramour while she and the children were visiting her family in Nebraska between July 5 and July 22, 1980, just prior to the separation. Upon their return to New Jersey on the latter date defendant announced that he was leaving. By way of responsive certification, defendant concedes that he was aware of his wife's desire to go back to Nebraska with the children. He allegedly consented only "on the condition that they return within three to four weeks." When she departed, plaintiff left the following note:
We've gone to Nebraska -- you know where you can reach us. I just need to be with my family until I can get my head together.