On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County.
Deighan and Stern. The opinion of the court was delivered by Stern, J.s.c. (temporarily assigned).
This is an appeal from an order of the Chancery Division, Family Part, entered on February 25, 1985, (1) reinstating plaintiff's complaint seeking a modification of a custody order entered in the courts of Florida; (2) directing that "all issues relating to the health and welfare of the infant children of this marriage will now be heard by the Superior Court of New Jersey, Chancery Division, Family Part"; and (3) placing the matter on the active trial list. The determination by the Family Part that it had jurisdiction to proceed was not a final order and was not appealable as of right. The proceedings should have been conducted expeditiously. However, the parties briefed the appeal as if from a "final" order and the issue under review relates to jurisdiction. We grant leave to appeal nunc pro tunc to settle the subject of jurisdiction. R. 2:4-4(b)(2).
The parties were married and lived in Florida. They were divorced by judgment entered in that state on August 15, 1977. Plaintiff was awarded custody of the two minor children of the marriage, and defendant was granted "liberal visitation". Defendant was ordered to make support payments. Each party was "restrained from permanently removing any of the children from the jurisdiction of the Court without the permission of the other parent or of the Court."
Subsequently, the children moved with their mother to New Jersey. Defendant challenged the move in Florida and sought additional visitation. The Florida court conducted a hearing and concluded that "[t]he father's visitation was curtailed and because of the move to New Jersey by the mother with the minor children, the father's visitation has been totally cut off." The court also concluded that "in spite of the father's serious illness he is entitled and indeed must have established for
himself and the well-being of his minor children, David and Dara, visitation privileges." Accordingly, by order entered on September 27, 1983, the Florida court directed, among other things, that the defendant be allowed visitation at certain designated times, including holidays, one month during the summer and whenever able to visit the children upon giving reasonable notice. Specifically, the court ordered that "the father shall be entitled to summer visitation from July 1 to 31st 1984." The September 27, 1983 order also included the following paragraphs:
This Court retains jurisdiction for the purposes of enforcing the provisions of this order allowing the father visitation privileges. There is no proof that any State but Florida is the homestate of the minor children.
Finally, this Court is aware that the mother is seeking the transfer of this case to the New Jersey Courts on the basis of her move to New Jersey. This court does not comment on that matter. It assumes that under the Uniform Child Jurisdiction Custody Act, that if the mother pursues a transfer to the New Jersey Courts, the New Jersey Courts will abide by the act, this Court's Orders and the Laws of the State of Florida, and will contact this Court.
After entry of the September 27, 1983 order, plaintiff moved in Florida for a modification and limitations of its provisions. On July 23, 1984, plaintiff's motion was denied except that the dates for summer visitation in 1984 were amended, with visitation to occur during the month of July in subsequent years unless modified by written agreement. The order of July 23, 1984 further provided that "Visitation shall otherwise be as stated in the Court Order of September 27, 1983."
On November 3, 1983 plaintiff filed a complaint in the Chancery Division, Bergen County, seeking modification of the Florida order of September 27, 1983. That complaint alleged jurisdiction by virtue of N.J.S.A. 2A:34-31(a)(1)-(3), asserting that New Jersey is the home state of the minor children; that the children have been residents of New Jersey for more than six months and that the "best interests of the children" requires that visitation be decided here because:
1. The plaintiff and the children have a significant connection to this state;
2. There is available in New Jersey substantial evidence concerning the present and future care, protection, welfare and personal relationships of the children;
3. The children are physically present in New Jersey and it is necessary to protect them, on an emergent basis, from the operation and effect of an order of the Fifteenth Judicial Circuit Court of ...