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Benda v. Benda

Decided: October 27, 1989.

SHERI BENDA, PLAINTIFF-RESPONDENT,
v.
RONALD BENDA, DEFENDANT-APPELLANT



On appeal from the Superior Court, Chancery Division, Family Part, Morris County.

Pressler, Long and Landau. The opinion of the court was delivered by Long, J.A.D.

Long

By leave granted, defendant Ronald Benda appeals from a November 1988 order of the trial judge purporting to exercise jurisdiction over this case pursuant to the Uniform Child Custody Jurisdiction Act (N.J.S.A. 2A:34-28 et seq. (U.C.C.J.A.)) and enjoining defendant from proceeding with a pending Indiana action involving the same subject matter. Because the order has been rendered moot by subsequent events in the case, the appeal is dismissed.

Plaintiff Sheri Benda and defendant were married in Las Vegas, Nevada, in 1984. Two children were born to them, Rachel in 1985 and Hillary in 1987. During the early years of the marriage, the parties lived in California where both were members of the Marine Corps. In 1986, after their discharge from the Marines, the parties moved to Terre Haute, Indiana where they purchased a home. In March 1988, plaintiff sued defendant for divorce in Indiana seeking, among other things, custody of the two children. At that time, plaintiff obtained a

restraining order against any contact by defendant with her or the children based on grave allegations of domestic violence. The parties reached a preliminary agreement as to custody and visitation in April 1988, which apparently was approved by the trial judge. According to the agreement, plaintiff was granted temporary custody of the children provided she would reside with the children at Coda House, a shelter in Indiana. Defendant was given supervised visitation. The restraining order remained in effect. Between April and June, 1988, both parties filed motions and orders to show cause in Indiana seeking various types of relief.

In June 1988, plaintiff came with the children to New Jersey. On July 28, she filed a Domestic Violence Complaint pursuant to N.J.S.A. 2C:25-12, alleging acts of violence by defendant in Indiana as a result of which a temporary restraining order was issued against defendant. Under the Order, which is not challenged on this appeal, plaintiff was granted temporary custody of the children. On August 3, plaintiff filed a complaint and order to show cause in Superior Court, Morris County, seeking permanent custody of the children and requesting the court to assume emergency jurisdiction over this case under N.J.S.A. 2A:34-28 et seq. and N.J.S.A. 9:2-7. She also filed a motion in Indiana to stay the Indiana action. Defendant moved in Indiana for the return of the children. On August 5, the Indiana court denied plaintiff's request for a stay, ordered the children returned and found plaintiff in contempt of the preliminary order.

On August 9, plaintiff filed a motion for reconsideration in Indiana which was denied with the following docket notation:

Pursuant to the Uniform Child Custody Act and having consulted with Judge Friend in the Superior Court, New Jersey, Morris County, and by agreement determining jurisdiction of this cause vests in Clay Circuit Court, Petition to Reconsider is denied.

On August 17, plaintiff filed a motion to dismiss the Indiana action. This motion was denied on August 18 with the following docket notation:

. . . on August 12, 1988 this court entered an order pursuant to the Uniform Child Custody Act. That after conference with Judge Friend in Superior Court, Morris County, New Jersey, it was unanimously decided and agreed that jurisdiction of the cause vested in Clay County, Indiana.

Meanwhile, in August, New Jersey judges issued final Domestic Violence orders continuing the prohibition against defendant contacting the plaintiff or the children. (These orders are not challenged here.) The custody case was scheduled for a "best interest/jurisdictional" hearing on October 3, 1988. Prior to the beginning of the hearing, the trial judge properly limited the case to the question of "emergency jurisdiction" under N.J.S.A. 2A:34-31a(3). At the hearing, a number of fact witnesses testified, including plaintiff and defendant and several experts. The judge then ruled that he had jurisdiction both under the emergency jurisdiction section and the best interests provision of N.J.S.A. 2A:34-31. He restrained defendant from proceeding with the custody hearing in Indiana scheduled for December 2, 1988. As to the simultaneous jurisdiction provision of N.J.S.A. 2A:34-34, the judge stated that he and the Indiana judge were at "logger heads" and that there was no reason to confer. He granted temporary custody of the children to ...


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