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Neger v. Neger

Decided: January 24, 1983.

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



On certification to the Superior Court, Appellate Division.

For reversal and reinstatement -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. For affirmance -- None. The opinion of the Court was delivered by Schreiber, J.

Schreiber

[93 NJ Page 19] Plaintiff, Irving Neger, and defendant, Joanne Neger, were married in New Jersey in December 1973. One child, a daughter Carly, was born of the marriage in October 1977. The parties continued to live in New Jersey until September 1979 when they moved to California because plaintiff had obtained a lucrative position in that state. In December 1979, the defendant, after the family came to New Jersey for the holidays, chose not to return to California. Carly remained in New Jersey with the defendant whose decision not to return to California was motivated in part by the fact that she had no family or friends in California. The formal separation between plaintiff and defendant commenced on January 4, 1980. They devised an alternative pattern of custody that began in 1980 under which Carly resided with her father in California for about six weeks and then with her mother in New Jersey for about three and a half months.

Plaintiff filed a suit for divorce in the California Superior Court in April 1980. The defendant in response also sought a dissolution of the marriage. Both parties desired custody. The court bifurcated the divorce from the property, support and custody issues. On June 22, 1981, a final judgment of divorce was entered, jurisdiction being retained over custody, support and division of property. Thereafter the attorneys for the parties proceeded with negotiations to settle problems relating to distribution of the communal property.

The alternating physical custody arrangement continued unabated until a dispute erupted with respect to plaintiff's right to custody of his daughter during the 1981 summer. The defendant sought an order from the California court, claiming custody and asserting that the plaintiff was not fit to act as Carly's primary custodial parent. Nevertheless, the California court issued an order giving the plaintiff visitation rights from August 1, 1981 through September 12, 1981. Though this order had been served on defendant on July 30, 1981, she and the child were absent when the plaintiff came to New Jersey to obtain Carly at defendant's home. The plaintiff thereupon filed a motion with the California court to hold the defendant in contempt and to obtain custody of Carly. A hearing was held on all matters on August 6, 1981. The California court ordered temporary joint custody to be continued under the preexisting alternating scheme. The court also ordered that Carly be entrusted to the plaintiff for the seven-week period commencing August 14, 1981.

The parties ultimately reached an agreement on all issues. Their understanding was reduced to writing, approved by the California court in January 1982, and added as a supplement to the final divorce judgment. The agreement provided for "joint legal custody". The defendant was awarded "physical custody," subject to plaintiff's right of visitation as follows:

a. Generally said minor child will reside with Respondent [defendant Joanne Neger] for a period of 3 1/2 to 4 months and then with Petitioner [plaintiff Irving Neger] for a period of approximately 6 weeks on an alternating basis.

b. Timing for future periods if visitation shall be mutually agreed upon between the parties, but shall include spending Christmas, 1981 with Petitioner. It is generally anticipated that future holidays will be alternated between the parties.

The parties continued to abide by the alternating custody plan until the defendant became concerned in the spring of 1982 that the custody arrangement would not be feasible beginning in September when Carly would commence school. The defendant requested that the schedule be amended to provide that Carly spend July 23 through August 28, 1982 in California and thereafter that she visit her father only during school vacation periods. The plaintiff objected, claiming that school authorities in both states could accommodate Carly under the existing custody schedule.

On June 29, 1982, the defendant filed in the California court an order to show cause seeking to modify the existing custody order. The plaintiff meanwhile obtained in that court an ex parte order confirming his right to Carly from July 23 to August 29, 1982. A hearing was held on July 20 to enforce the ex parte order, the defendant moving to vacate it. After that hearing, the California court ordered that the defendant adhere to the visitation order for the period from July 23 to August 29, that a family counselor communicate with the defendant for the purpose of interviewing her, and that the case be continued for further hearing on August 10. On August 10, plaintiff requested a continuance to allow time for both parents to submit to an agreed-upon psychological evaluation. The court continued the case to 1:45 p.m. on August 31, 1982 and extended custody in the plaintiff from August 29 until the conclusion of the hearing on August 31. The defendant's attorney was served with notice of the continuance. On August 20, 1982, the plaintiff filed an application requesting custody. This application was also scheduled for the August 31 hearing.

The court minutes indicate that plaintiff and his attorney were in court at 1:45 p.m. on August 31, 1982. Neither defendant nor her counsel was present. The case was called again at

3:30 p.m. and 3:55 p.m. Neither defendant nor her counsel had appeared or communicated with the court or plaintiff's counsel. The case then proceeded. Dr. Barrett, a court-appointed physician, testified that the plaintiff had made an appointment with him upon being informed of the court's request for an evaluation. Dr. Barrett saw Carly and her father on several occasions and did some testing. Since he had not heard from the defendant, Dr. Barrett telephoned her in New Jersey, and an appointment was arranged for 9:00 a.m. on Monday, August 30. The defendant did not arrive. Under the agreed-upon arrangements, the defendant was also to be present at 1:00 p.m. to be observed with Carly. The plaintiff brought Carly to the office at that time. The defendant was also there, and Dr. Barrett spent approximately 45 minutes with her. The examination was shortened because defendant wanted to spend some time with Carly, and it was agreed that the defendant would return the next morning at 7:00 a.m. She left with Carly and did not return the next morning.

Dr. Barrett testified that, while he had seen and done some testing of both parents and Carly, he had hoped to spend a few more hours with the defendant. In his opinion, it would be satisfactory to have the child remain with the father for the next school year, subject to visitation rights of the mother. He did not deem it wise to disrupt the peer relationship a five-year-old child would develop in school. Dr. Barrett also said, "the child might go back to New Jersey and flourish just as well." What was needed, in his opinion, was "a permanent arrangement where this child can have access to both parents given the geographic distance."

The court modified its extant order to award custody to the plaintiff until the end of the school year in June; during the summer Carly was to be returned to the defendant in New Jersey. The court left open what the custody arrangements would be thereafter, though its order recited custody would remain in the plaintiff until further order of the court.

Instead of appearing at Dr. Barrett's office on August 31, the defendant had taken Carly and returned to New Jersey. She claims that she took this action on the advice of her counsel. After the court's decision, the plaintiff followed her to New Jersey and instituted proceedings under the Uniform Child Custody Jurisdiction Act ("UCCJA"), N.J.S.A. 2A:34-28 through -52, to enforce the California judgment.*fn1 He obtained an ex parte order in the New Jersey Superior Court, Chancery Division, directing that Carly be delivered to him and that the defendant show cause on September 10, 1982 why the California order should not be given full faith and credit. Before executing this order the Chancery Division judge had spoken by telephone with the California court and had been advised of what occurred on August 31, 1982 and that the California court had jurisdiction to modify the custody of the infant and award it to the plaintiff. The defendant filed a cross-motion seeking an adjudication that the California judgment was void because its court had no jurisdiction and that the Superior Court of New Jersey "has sole jurisdiction to make a child custody determination by modification" of the previous decree. The New Jersey court, after hearing argument on the return day, entered a final judgment for the plaintiff. It found the Superior Court of California had properly assumed jurisdiction to make a child custody determination and that the Superior Court of New Jersey did not have jurisdiction.

The defendant appealed to the Appellate Division. Finding that the California court did not have subject-matter jurisdiction, the Appellate Division reversed. 187 N.J. Super. 133 (1982). We granted plaintiff's petition for certification. 93 N.J. 15 (1982). The specific issues are whether under the UCCJA the New Jersey courts should enforce the California judgment and

whether under the UCCJA the New Jersey courts may properly modify the custody judgment of the California court. Because the principal issue involved custody of a minor and the attendant urgency due to the need of the child to begin school, we issued an order without opinion 93 N.J. 15. Our order reversed the judgment of the Appellate Division and reinstated the judgment of the Superior Court, Chancery Division. This opinion now follows.

The United States Supreme Court has not clearly delineated the impact of the Full Faith and Credit Clause, U.S. Const., Art. IV, ยง 1, on custody adjudications. See New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S. Ct. 903, 91 L. Ed. 1133 (1947) (holding New York could lawfully modify a Florida custody decree because Florida court had right under Florida law to change the decree); May v. Anderson, 345 U.S. 528, 73 S. Ct. 840, 97 L. Ed. 1221 (1953) (holding Ohio need not give full faith and credit to Wisconsin custody judgment because Wisconsin did not have personal jurisdiction over mother who was in Ohio with children at time process was served; Wisconsin had been matrimonial domicile and father had remained there); Kovacs v. Brewer, 356 U.S. 604, 78 S. Ct. 963, 2 L. Ed. 2d 1008 (1958) (holding North Carolina had authority to modify New York custody decree if the North Carolina court found changed circumstances, because New York decree was modifiable under New York law on showing of changed circumstances); Ford v. Ford, 371 U.S. 187, 83 S. Ct. 273, 9 L. Ed. 2d 240 (1962) (holding South Carolina not bound by Virginia court's order of dismissal after being informed of an agreement regarding custody, because Virginia law did not require that courts would be bound by agreements between parents with respect to custody of their children). See also Borys v. Borys, 76 N.J. 103, 109-115 (1978) (discussing judicial applications of the Full Faith and Credit Clause to custody decrees).

The positions espoused in these decisions unfortunately encouraged child snatching by a parent, which was condoned,

even rewarded. See, e.g., Casteel v. Casteel, 45 N.J. Super. 338 (App.Div.1957). This situation, encouraged by the void in the federal judicial scheme, led to the formulation in 1968 of the Uniform Child Custody Jurisdiction Act (UCCJA) by the National Conference of Commissioners on Uniform State Laws. 9 U.L.A. 111, 116 (master ed. 1979). The UCCJA was designed to foster stability in custody awards and discourage "seize-and-run" tactics by forum-shopping parents. See E.E.B. v. D.A., 89 N.J. 595, 607 (1982); Foster & Freed, "Child Snatching and Custodial Fights," 28 Hastings L.J. 1011 (1977); Bodenheimer, "Interstate Custody," 14 Fam. L.Q. 203 (1981).

New Jersey is one of 47 states that have enacted the UCCJA.*fn2 The legislative sponsors' statement to the bill referred to the evils to which the act was addressed and the goals to be attained:

There is no certainty as to which state has jurisdiction when persons seeking custody of a child approach the courts of several states simultaneously or successively. There is no certainty as to whether a custody decree rendered in one state is entitled to recognition and enforcement in ...


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