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Jaworowski v. Kube

Decided: October 4, 1994.


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

Before Judges Pressler, Landau and Newman.


The opinion of the court was delivered by PRESSLER, P.J.A.D.

Defendant Frank Kube appeals from an order of the Chancery Division, Family Part, enforcing a child support order entered against him in Arizona and expressly rejecting his argument that that order is void by reason of Arizona's failure to have obtained personal jurisdiction over him. We affirm.

The jurisdictional facts are largely undisputed. Defendant and plaintiff Deborah Jaworowski were both residents of New Jersey when they met in 1983. Planning to be married, they moved together to Phoenix, Arizona, in February 1985, where they rented

an apartment and lived together as husband and wife. Plaintiff was then pregnant with their daughter, who was born in August 1985. With defendant's concurrence, plaintiff registered at the hospital under defendant's name, and the child bears his name as well. The child was also so baptized in April 1986. In June, because of problems between them, plaintiff changed her mind about marrying defendant and returned to New Jersey with the baby and her two other children. Defendant remained in Arizona, plaintiff rejoining him there, however, in August. She has lived in Arizona since. Defendant left Arizona in October 1986, came back in November 1987, and left again the following month. He has resided in New Jersey since. It appears that while he still lived in Arizona, he filed there for unemployment benefits, which he continued to receive after his return to New Jersey.

Although defendant has never denied paternity of the child, he failed to provide support for her. Plaintiff, who had been receiving public assistance, commenced a paternity and support action against defendant in the Arizona Superior Court for Maricopa County in July 1988. Defendant was personally served with process at his home in New Jersey by a Union County sheriff's officer. He consulted with an attorney employed by Union County Legal Services Corporation who wrote to plaintiff's attorney in Arizona advising that defendant acknowledged paternity, recognized his obligation to support the child but was unable to then do so because he was unemployed, asserted his right to visitation, and offered to sign a consent decree.

Although defendant never filed an answer to the complaint or otherwise appeared in the Arizona action, negotiations ensued between the attorneys. Plaintiff had proposed a consent decree providing monthly child support of $400. Defendant, asserting that he was unemployed and living on monthly benefits of $450, offered child support of $175 monthly, to be increased when he again started to work. Plaintiff's attorney rejected the proposal, advising that he had specific information respecting defendant's current employment and that defendant's salary warranted the

demanded $400 monthly support level under Arizona's child support guidelines. Defendant's response continued to assert his unemployment, acknowledged that he was receiving weekly benefits of $228 and asked that plaintiff modify her demand based on that benefit level. That was apparently the end of the correspondence. A default judgment was entered in January 1989 fixing child support at $400 per month and requiring defendant to pay the child's incurred medical expenses as well as plaintiff's attorney's fee. Defendant asserts that he was not noticed either of the entry of the default or the entry of the default judgment.

Initiation by plaintiff's Arizona attorney in late 1989 of inquiries in New Jersey respecting enforcement of the judgment in this state were not apparently pursued. Ultimately, the Arizona Attorney General's Office requested the Essex County Probation Department to obtain enforcement pursuant to N.J.S.A. 2A:17-56.18, which extends the income withholding provisions of the New Jersey Support Enforcement Act, N.J.S.A. 2A:17-56.7 to -56.16, to support orders entered by a sister state. The Essex County Probation Office complied with this request and commenced this proceeding by serving a notice of income withholding on defendant's employer. Defendant responded by obtaining an order requiring Probation to show cause why the Arizona judgment should not be vacated on jurisdictional grounds. At the ensuing hearing, the Family Part Judge concluded that Arizona had properly exercised long-arm in personam jurisdiction over defendant. He also concluded that because the Arizona judgment was not entered in a proceeding under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), N.J.S.A. 2A:4-30.24 to -30.64, he had no jurisdiction to entertain an application by defendant to modify the terms of the Arizona judgment. While we agree with the first of these determinations, we are nevertheless of the view that defendant is not without the procedural recourse of seeking modification of the Arizona judgment in this state.

We address first the due process issue. It is well-settled that an exercise of long-arm in personam ...

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