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Johnson v. Bradbury

Decided As Amended August 1 1989.: May 17, 1989.

CARYN MARIE JOHNSON, PLAINTIFF-APPELLANT,
v.
CAROLYN MARIE BRADBURY AND GARY TRENTON JOHNSON, DEFENDANTS-RESPONDENTS



On appeal from Superior Court, Chancery Division, Family Part, Cape May County.

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

Antell

At the time of filing the complaint herein, plaintiff was 18 years old. She sues both her divorced parents for financial assistance to defray the cost of her college education. The suit against defendant Gary Johnson sounds in contract, based upon statements allegedly made by that defendant assuring plaintiff of a college education if she came to live with him and his second wife in Florida. The suit against defendant Carolyn Bradbury, plaintiff's mother, is grounded in common law principles fixing the obligation of a parent to meet the expense of higher education for a child. Plaintiff now appeals from an order dated September 21, 1988, dismissing her complaint as to defendant Bradbury, and an order dated October 17, 1988, dismissing the complaint as to defendant Johnson.

Plaintiff's parents were divorced in Florida on July 23, 1976. The final decree awarded custody of plaintiff to her mother and provided for support payments by her father in the amount of $125 per month. In 1977, the mother moved to New Jersey from Florida with plaintiff and an older daughter. Plaintiff's brother remained in Florida with the father.

Plaintiff, who was born in 1970, asserts that since she was 12 years old her father promised her a college education. She states that after she moved to New Jersey he "encouraged me to move to Florida to establish a residency in that State to reduce the cost of tuition." She accepted his offer and moved to her father's house in August 1987. Thereafter, difficulties developed between father and daughter, and plaintiff says she was compelled to leave. In the early spring of 1988 she returned to New Jersey to resume living with her mother, but was told that she was not welcome. Without any assistance from either of her parents she was, at the time of these

proceedings, supporting herself by working at a supermarket while completing her senior year at high school.

DEFENDANT JOHNSON

The dismissal order as to defendant Johnson, who was served in Florida, is based on the trial court's finding of a lack of personal jurisdiction. Rule 4:4-4(e), our "long-arm" rule, has been interpreted to permit service of process on a non-resident defendant "to the uttermost limits permitted by the United States Constitution." Avdel Corp. v. Mecure, 58 N.J. 264, 268 (1971). The ultimate question under the Fourteenth Amendment due process requirement is whether the non-resident has had "minimum contacts with [the forum state] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95, 102 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 343, 85 L. Ed. 278, 283 (1940)).

Originally conceiving that applicable principles permitted the bringing of suit in New Jersey, the Chancery Division first denied defendant's motion. However, on a motion for reconsideration the decision of the United States Supreme Court in Kulko v. California Superior Court, 436 U.S. 84, 98 S. Ct. 1690, 56 L. Ed. 2d 132 (1978), was brought to its attention. Because it read that decision as mandating such a conclusion, it determined that plaintiff had not satisfied constitutional standards prerequisite to the exercise of jurisdiction by New Jersey courts over defendant and reversed its earlier determination.

In our view, the facts of Kulko are materially different from those hereof and did not require the result reached below. In Kulko, husband and wife, who resided in New York, separated. The wife moved to California, leaving their two children with the husband. After the wife obtained a divorce in Haiti, the couple's daughter, with the husband's consent, moved to California to reside with her mother. Some time later, without the

father's consent, the former wife brought the other child out also to live with her in California. The mother then brought suit under the long-arm jurisdiction of the California court ...


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