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D.B. v. R.B.

Decided: February 6, 1995.

D.B., PLAINTIFF-APPELLANT,
v.
R.B., DEFENDANT-RESPONDENT.



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

Before Judges Pressler, Landau and Conley.

Conley

The opinion of the court was delivered by

CONLEY, J.A.D.

This appeal arises from the trial Judge's exercise of his discretion to decline original jurisdiction over the parties' custody dispute concerning their four-year old child in favor of the exercise of original jurisdiction by the Virginia courts. We affirm.

Although complicated to some extent by an investigation in Virginia of a claim of sexual abuse involving the child and her mother and the mother's recently disclosed lesbianism, the critical jurisdictional facts are not difficult. The parties were married in New York in 1987. They moved to New Jersey in 1989. The child was born on October 20, 1989. In the fall of 1992, the parties agreed to separate and agreed to joint legal and physical custody of the child. Beck v. Beck, 86 N.J. 480, 487-88, 432 A.2d 63 (1981). Defendant was going to live in Virginia. A written separation agreement was signed December 7, 1992. Pursuant thereto, the child was to reside with defendant from January 1, 1993 to June 30, 1993 and thereafter with plaintiff from July 1, 1993 to December 31, 1993. Her residency would then be reevaluated. There was a factual dispute as to when defendant actually left New Jersey and began to reside in Virginia with the child. Both parties provided testimony; plaintiff asserted the date was December 12, 1992, defendant claimed November 2, 1992. The trial Judge resolved that dispute and found that defendant left New Jersey with the child on November 2, 1992, although he returned briefly in the middle of November to allow visitation with plaintiff during Thanksgiving.*fn1

Plaintiff visited the child in Virginia over the Memorial Day weekend. Following that visit, on June 1, 1993 defendant filed a custody complaint in the Virginia Juvenile and Domestic Relations District Court. On June 11, 1993, plaintiff filed a divorce complaint in New Jersey, with a notice of motion for pendente lite relief seeking custody.*fn2 In opposition thereto, defendant filed a cross-motion to dismiss the custody matter on jurisdictional grounds. The jurisdiction issue was heard on August 6, 1993 during which proceeding both parties testified.

Both New Jersey and Virginia have adopted the Uniform Child Custody Jurisdiction Act and pursuant thereto the trial Judge conferred with the Virginia Juvenile and Domestic Relations District Court Judge both before and after the proceeding. See N.J.S.A. 2A:34-34; N.J.S.A. 2A:34-35; Benda v. Benda, 236 N.J. Super. 365, 565 A.2d 1121 (App. Div. 1989). Although we cannot tell from the record what the substance of these Discussions was, the outcome was an agreement that New Jersey would defer to Virginia's jurisdiction. In so concluding, the trial Judge said:

The primary legislative purpose of the Uniform Child Custody Jurisdiction Act is to assure that litigation concerning the custody of a child takes place ordinarily in the state within which the child and his family have the closest connection and where significant evidence concerning his care, protection, training and personal relationships is most readily available, and that Courts of this State decline the exercise of jurisdiction when the child and his family have a closer connection with another state. See Neper v. Neper, 93 N.J. 15, 1983. In the case at bar, the child has been attending school in Virginia and is in therapy in Virginia. There is currently an investigation ongoing in Virginia as to the allegations of sexual abuse against the child.*fn3 Additionally, it is the intent of the plaintiff to relocate to the State of New York within a short period of time. At the present time there is a minimum connection between the State of New Jersey and the child for determining the issue of custody.

The Court further finds that it was the parties' expressed intent, pursuant to their Separation Agreement, that the child reside equally with both parents an equal period of time in Virginia and an equal period of time, not necessarily in the State of New Jersey.

This Court further finds that it is in the best interest of the State of Virginia to hear this case as more significant evidence is available to the courts of Virginia to make the appropriate findings as to the best interest of this child. The child is currently in school in Virginia and is currently in therapy in the State of Virginia. See N.J.S.A. 2A:34-31. Additionally, Virginia can be said to be the home state of this child at the time of the commencement of both the New Jersey and Virginia proceeding. This court specifically finds no wrongful conduct on behalf of the Defendant herein with respect to holding the child in Virginia pending the outcome of various litigation.

An order declining jurisdiction was entered August 23, 1993. Although we have not been fully advised as to the proceedings in Virginia, it is evident that the jurisdictional issue, including a claim of lack of in personam jurisdiction, was resolved against plaintiff. It further appears that in September 1993 plaintiff's Virginia counsel filed a motion "for a new trial relative to the matter of jurisdiction." We were told during oral argument that presently all of the jurisdictional issues raised by plaintiff have been resolved and the entire custody issue is now proceeding de novo in a Virginia court of record.*fn4 Plaintiff states in her brief that custody was awarded defendant in August 26, 1994.

Meanwhile, in New Jersey, plaintiff's motion for reconsideration was denied on November 16, 1993. In his written decision, the trial Judge said:

After reviewing all of the Affidavits and Arguments by legal counsel, this Court determines that the Motion for Reconsideration will be dismissed. This Court did not overlook any of the facts or circumstances, as they existed at the time, in making its ...


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