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Neger v. Neger

Decided: September 24, 1982.

IRVING NEGER, PLAINTIFF-RESPONDENT,
v.
JOANNE NEGER, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Chancery Division, Morris County.

Matthews, Antell and Francis. The opinion of the court was delivered by Matthews, P.J.A.D.

Matthews

This matter was instituted by plaintiff seeking to enforce an order of the Superior Court of California respecting a change of custody of Carly Paul Neger, a minor. Defendant filed a cross-motion seeking a determination that the California court was without jurisdiction when it entered its order. After a brief hearing conducted on September 10, 1982, the Chancery Division judge deferred jurisdiction to California.

The parties, who were then residents of Morris County, were married in December 1973. Carly, infant child of the marriage, was born to the parties on October 14, 1977, in Livingston, Essex County. The parties continued to be residents of the State of New Jersey until September 1979, when they moved to California because of the plaintiff's new job opportunity. Defendant and Carly remained in California until December 1979, when they returned to this State where they have been residents ever since. Plaintiff has continued to be a California resident since September 1979.

The parties were divorced by a Final Judgment of Dissolution of Marriage entered on June 22, 1981 in California. The collateral issues were disposed of by means of a Property Settlement Agreement which was filed with the California courts on January 8, 1982, and incorporated by reference into the Final Judgment of Dissolution of Marriage. Under the terms of that Property Settlement Agreement the parties were awarded joint legal custody of Carly. Defendant was awarded physical custody of Carly, subject to the plaintiff's rights of visitation.

Problems arose over plaintiff's visitation with Carly both during the summer of 1982 and beginning in September 1982, when Carly was to have begun school in New Jersey. When it appeared that the parties could not agree between themselves as to an appropriate modification of the Property Settlement Agreement, defendant filed a proceeding in the State of California, originally returnable July 20, 1982. Shortly thereafter, on July 15, 1982, by an ex parte application, plaintiff obtained an

order of the court of the State of California providing for visitation during the summer of 1982, from July 23, 1982 to August 29, 1982. The August 29 date was later extended to August 31, 1982.

The July 20, 1982 return date of defendant's order to show cause to modify the visitation terms of the Property Settlement Agreement was adjourned at the request of plaintiff, who claimed that he would not be in the State of California on that date. A determination was made on August 10, 1982 adjourning the return date of defendant's order to show cause for modification of the visitation provisions to August 31, and to afford plaintiff the opportunity to file papers with respect to the issues of custody, which had only then been raised.

Prior to the hearing which was to have taken place on August 31, 1982, defendant, on the advice of California counsel, left the State of California, and returned to the State of New Jersey with Carly. Notwithstanding defendant's absence, a hearing was held by the Superior Court of California for San Diego County on August 31, 1982, as a result of which an order was entered by that court awarding sole custody of Carly to plaintiff, commencing forthwith and continuing through the school year ending in June of 1983, and thereafter until further order of the court.

In the action instituted here plaintiff sought to have the California order afforded full faith and credit, and also sought to restrain the physical removal of Carly from the jurisdiction of the courts of this State. Defendant in her cross-motion sought an adjudication of the lack of jurisdictional basis of the California order, a finding that the courts of this State have sole jurisdiction to make a custody determination, and to enforce the Property Settlement Agreement entered into between the parties with modification of the visitation provisions.

The Uniform Child Custody Jurisdiction Act (the act) was adopted by the Legislature as L. 1979, c. 124 et seq., effective July 3, 1979. The act, ...


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