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Ross v. McNasby

Decided: October 6, 1992.

CATHRYN ROSS, PLAINTIFF-RESPONDENT,
v.
JOSEPH MCNASBY, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County.

J.h. Coleman, Shebell and A.m. Stein. The opinion of the court was delivered by Coleman, J.h., P.J.A.D.

Coleman

[259 NJSuper Page 411] This is an appeal from a judgment denying defendant's application to vacate the registration of a child support order that originated in the "Provincial Division, Ontario Court, (Family

Division), Kingston, Ontario." The Canadian order provided that defendant was $23,397.20 in arrears, and judgment was entered in plaintiff's favor for that amount. The registration of the Canadian support order and the entry of judgment pursuant thereto are based on the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), N.J.S.A. 2A:4-30.60 and N.J.S.A. 2A:4-30.61. Custody is not in issue on this appeal.*fn1

Plaintiff, a Canadian citizen, and defendant were married in Camden County on February 24, 1979. Three children were born during the marriage: Joseph Edward, born April 25, 1979, Kathryn Michele, born January 26, 1981, and Steven James, born August 3, 1982. The family resided in Berlin, Camden County, New Jersey, until November 1987.

On November 3, 1987, without permission from defendant or a court, plaintiff left the marital home with the children. On November 10, 1987, defendant obtained an ex parte order from a Judge sitting in the Family Part in Camden awarding him temporary custody of the children. Notice of these proceedings was not given to plaintiff because her whereabouts were unknown to defendant at that time.

After defendant discovered that plaintiff was residing in Canada with the children, he retained the services of a Canadian solicitor. On December 6, 1987, defendant filed an action in the Provincial Court (Family Division) County of Frontenac, Ontario, Canada, to enforce the New Jersey order awarding him temporary custody. On the same day, plaintiff filed an action in the Provincial Court seeking custody of the children.

On December 23, 1987, plaintiff and defendant appeared before Judge Pedlar in the Provincial Court, Family Division, at Kingston, Ontario, and each was represented by an attorney.

The Judge refused to enforce the New Jersey order because notice had not been given to plaintiff. The Judge permitted plaintiff to retain custody of the children. Defendant was granted supervised visitation with the children in Ontario. The Judge retained jurisdiction in the case to protect the best interest of the children.

Pursuant to a motion filed by plaintiff's attorney and responded to by defendant's Canadian attorney, Judge Pedlar issued an interim order on January 20, 1988 requiring defendant to pay child support in the sum of $200 per week for the three children. That order further provided that "This matter is adjourned to February 24, 1988, at 9:30 a.m. to be spoken to." Between February 1988 and November 15, 1988, defendant made 15 payments of varying amounts.

A court hearing was conducted before Judge Fair in the Provincial Court on November 25, 1988 in the presence of plaintiff and defendant and their respective attorneys. At that time, defendant acknowledged, through his consent, that the arrears should be fixed at $4,997.20. The Judge ordered the payment of certain sums by specific dates to satisfy the arrears. The Judge directed that if defendant failed to make the required payments on the arrears, "a Warrant of Committal shall issue committing the Debtor [defendant] to prison for a continuous period of forty-five days unless or until the payment or payments in default shall be paid in full." Although the above order was based on the hearing conducted on November 25, 1988, the order apparently was not signed by Judge Fair until March 12, 1990.

When defendant failed to pay the arrears of approximately $5,000, a warrant was issued for his arrest. On April 4, 1990, defendant's attorney requested the Canadian Court to stay enforcement of both the warrant and his support obligation. He was $18,797.20 in arrears as of March 30, 1990, having ...


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