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Kaplan v. Kaplan

Decided: August 29, 1986.

LINDA M. KAPLAN, PLAINTIFF,
v.
SAMUEL L. KAPLAN, DEFENDANT



Krafte, J.s.c.

Krafte

Recently this court addressed the issue of whether a custodial parent's interference with visitation could be raised as a defense in a support enforcement proceeding brought pursuant to the Revised Uniform Reciprocal Enforcement of Support Act (1968), N.J.S.A. 2A:4-30.24 et seq. (URESA). See Muller v. Muller, 212 N.J. Super. 665 (Ch.Div.1986).

This case presents similar issues of interference with visitation and support monies being placed in a "held" account, with one important factual distinction. In Muller, the state of original jurisdiction in the matrimonial action was Florida -- the judgment of divorce was entered there; the child had lived there for almost his entire life; the defendant-father subsequently acquired New Jersey residence which was the only connection with this State. Under those facts, it was found that the New Jersey court lacked jurisdiction to enter a visitation order in view of the requirements of the Uniform Child Custody Jurisdiction Act, N.J.S.A. 2A:34-28 et seq. (UCCJA) and that issues of custody and/or visitation are not properly before the responding court in a URESA proceeding.

In contrast to Muller, however, the parties in this case were divorced in New Jersey, and it is the plaintiff-wife who removed herself and the children from this jurisdiction to Florida. The question thus becomes whether a court of this state, because it was the situs of the marital res, has continuing jurisdiction over

issues of visitation and support. Can this court enforce the final judgment by conditioning plaintiff's receipt of support on her affording defendant visitation with the children? A brief review of the factual background is in order.

The parties were divorced in New Jersey in 1978, their final judgment having incorporated their property settlement agreement. Custody of the two children of the marriage was given to plaintiff, reserving to defendant reasonable and liberal rights of visitation. The agreement particularly specified that defendant would have visitation with the children at his home during all school vacations and for two weeks during the summer.

The "Support and Maintenance" section provided that defendant would pay plaintiff $40 a week for child support. However, defendant's obligation would terminate if plaintiff permanently removed the children from New Jersey. Immediately after the divorce, plaintiff did, in fact, move with the children to Florida. Defendant did not challenge the move and continued to send child support.

In 1979, defendant requested and obtained visitation with the children at his home for two weeks during the summer. He then refused to return the children to Florida, and instead filed an order to show cause here to change custody from plaintiff to him. The court denied his application, ordering the return of the children to plaintiff and declining jurisdiction in the matter.

Shortly thereafter, problems arose with visitation, and as a result defendant ceased support payments. Plaintiff instituted an enforcement action pursuant to URESA. Thus began a series of orders entered by the Superior Court of New Jersey between 1980 and 1985 -- thirteen in all -- admonishing plaintiff for her failure to comply with the visitation provisions of the final judgment. The first order, entered May 28, 1980, required defendant to pay $40 a week plus $10 a week on arrears, but also directed that plaintiff comply with visitation.

In October 1980, support monies were ordered to be placed in a "held" account pending plaintiff's compliance. When she

failed to comply, defendant in 1981 applied for and was granted return of all monies held by the Bergen County Probation Department, as well as vacation of all prior orders of support.

Plaintiff continued to file URESA petitions in Florida, and each time the New Jersey court refused to grant relief unless and ...


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