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Schuyler v. Ashcraft

New Jersey Superior Court, Appellate Division


August 13, 1996

SAMUEL NED SCHUYLER, PLAINTIFF-APPELLANT,
v.
MARY ASHCRAFT, F/K/A MARY SCHUYLER, DEFENDANT-RESPONDENT.

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

Approved for Publication August 13, 1996. As Corrected October 8, 1996.

Before Judges Dreier, Kestin and Cuff. The opinion of the court was delivered by Dreier, P.j.a.d. Kestin, J.A.D., Concurring. Judge Cuff joins in this concurrence.

The opinion of the court was delivered by: Dreier

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

Plaintiff, Samuel Ned Schuyler, appeals from portions of a February 6, 1995 order of the Chancery Division, Family Part, determining that New Jersey has enforcement and modification jurisdiction over the custody and child support provisions of an August 28, 1991 Florida order, which modified the parties' May 7, 1990 Florida divorce judgment. The trial court found that New Jersey had "absolute jurisdiction over the [parties'] two minor children"; Florida had lost jurisdiction by the terms of the August 28, 1991 order, and a subsequent order retaining jurisdiction was "null and void as a result of its violation of the constitutional rights of defendant." Plaintiff also appeals from the court's award of counsel fees to defendant and to the children's guardian ad litem, and the reduction of plaintiff's child support arrearages to a judgment.

The Florida order modifying the divorce judgment permitted defendant, Mary Ashcraft (formerly Mary Schuyler), to move with the children outside of Florida, denied plaintiff's request for a change of custody, but granted plaintiff liberal visitation. It continued the prior arrangement that plaintiff was to pay $500 support per month through the Central Depository in Dade County, Florida, and ordered plaintiff to pay traveling expenses for visitation. As will be more definitively explained (infra), with the Florida court's consent, defendant moved from Florida to California in 1991, after which she remarried and moved to New Jersey in early 1993. The children have lived in this State for the past three and a half years.

Defendant's New Jersey counsel filed the August 1991 Florida judgment with the Clerk of the Family Part under the provisions of the Uniform Child Custody and Jurisdiction Act (UCCJA) and sought its enforcement and later modification in New Jersey. Plaintiff contested the jurisdiction of the New Jersey court on the basis that Florida continued to be the children's "home state" and the sole state possessing jurisdiction over the custody matter, and he asserted that his repeated attempts to modify the judgment in Florida both prior to and following the New Jersey action deprived New Jersey of jurisdiction. Plaintiff also repeatedly rebuffed the New Jersey court's attempts to enforce the child support provisions of the order, correctly asserting that it had no jurisdiction to do so, as we will later explain.

We hold that the Family Part has jurisdiction over the custody issues, but that the questions of support remain subject to the orders of the Florida courts.

I. Factual and Procedural Summary

We will briefly summarize the facts and procedural history of this case, which are related in more detail in an attached Addendum *fn1 and at the appropriate points in our analysis. The parties were divorced in Florida in 1990 and they have two children born June 29, 1986 and March 24, 1989. During the year following the divorce, plaintiff and his family repeatedly used the Florida court system to harass defendant and attempt to force a change of custody, filing and refiling false sexual abuse charges and instituting an extraordinary number of legal proceedings. In August 1991, the Florida court granted defendant's emergency petition to leave the state with the children and relocate to California, but permitted plaintiff liberal visitation. The order, quoted at length (infra), strongly admonished plaintiff and his family for their behavior and specifically refused plaintiff's request that Florida retain jurisdiction over the matter beyond six months, the period which, under the relevant federal and state statutes, would allow another state to establish custody jurisdiction.

During the six-month period in which Florida retained jurisdiction, plaintiff applied ex parte before different Judges and was granted orders changing the wording of the August 28, 1991 order and retaining jurisdiction beyond the six month period. Defendant discovered the existence of these orders months later. There then followed a series of orders purporting to retain jurisdiction and to increase defendant's share of the child support, all of which were issued without proper notice to defendant. Defendant attempted on June 4, 1992 to bring to the Florida court's attention plaintiff's behavior in securing these orders, but was told that the court had "no jurisdiction" to hear her application. In the interim, defendant had remarried a member of the Coast Guard and, following her new husband's transfer, the family moved to New Jersey in January 1993. The last order before the move had issued from Florida on June 2, 1992.

On January 18, 1993, defendant's New Jersey counsel filed the August 28, 1991 order with the Clerk of the Superior Court of New Jersey. Under the mistaken impression that his filing conferred plenary jurisdiction upon New Jersey, defendant's counsel also filed with the Florida court and sent to plaintiff a notice announcing the change of jurisdiction. We note that this was not a motion, nor did it request any relief from the Florida court.

On February 4, 1993, plaintiff filed with the Florida court a "Motion to Enforce Settlement Agreement and/or for Re-Hearing." Defendant received no notice of this motion and apparently no such settlement agreement existed. Plaintiff's attorney had merely mailed proposed agreements to defendant's Florida attorney. A hearing was set for March 30, 1993.

On February 16, 1993, plaintiff filed with the New Jersey court a motion to strike defendant's notice of change of jurisdiction and represented to the New Jersey court that "various motions" regarding the parties' children were "currently pending" in Florida. A hearing was set on the matter for March 19, 1993 in New Jersey before the Family Part. Plaintiff then, on an emergent basis, applied for and received a hearing in Florida on March 11, 1993 to determine jurisdiction. The Florida court then issued an order on March 12, 1993 denying defendant's motion to transfer jurisdiction to New Jersey, although no such motion had ever been made. At the March 19, 1993 hearing in New Jersey, the court denied plaintiff's request to strike the notice of change of jurisdiction, observing that the effect of defendant's notice was merely to advise Florida of defendant's new address and where to send the support checks.

After obtaining the Florida order denying the "motion" to transfer jurisdiction, plaintiff informed defendant by letter that he would be picking up the children on April 8, 1993 for visitation in Florida and that she should bring the children to the airport in Philadelphia. Since plaintiff was not entitled to this visitation and, contrary to court order, had not made the arrangements with defendant, defendant feared that the children would not be returned if she allowed them to leave New Jersey. On April 1, 1993, the New Jersey court issued an emergent order limiting visitation to within New Jersey. On April 13, 1993, the New Jersey court assumed emergency jurisdiction over the children citing their best interests and fear of their disappearance. On April 14, 1993, the Florida court transferred custody to plaintiff.

On June 4 and June 8, 1993, the New Jersey court held hearings on whether the custody and visitation provisions of the August 28, 1991 order should be modified. It was at these hearings that plaintiff's repeated due process violations became clear to all. Plaintiff's Florida counsel testified that he had never noticed defendant of the application for the orders he obtained from the Florida court in February 1992 and that he knew she was unrepresented at that time. He was later admonished by the Florida Bar for his conduct in this case. We note that information concerning the substance of this testimony is entirely absent from plaintiff's brief before this court, in which he relates as "procedural history" and "fact" the existence and content of the February 1992 orders retaining jurisdiction. Although plaintiff's Florida attorney specifically testified at this time only with regard to the February 1992 order, as will be explained (infra), it is clear from the record that plaintiff's due process violations were pervasive during this litigation.

Throughout 1993 the Florida court issued various orders regarding custody, and the New Jersey court began hearings on defendant's attempts to enforce the child support provisions of the August 28, 1991 order. Plaintiff refused to supply the New Jersey court with the requested financial information. On March 4, 1994, after a telephonic conference between the New Jersey and Florida Judges, Florida again relinquished jurisdiction over the matter, citing the best interests of the children. On March 7, 1994, however, plaintiff's Florida attorney sent an ex parte letter to a Florida Judge who had issued prior ex parte orders in the matter, but who was no longer sitting in the family court, stating that "someone" *fn2 had contacted the administrative Judge of the Family Division and "mislead" [sic] him into believing jurisdiction did not belong in Florida. That same day the Florida court rescinded its March 4, 1994 order that had relinquished jurisdiction.

On April 6, 1994, plaintiff telephoned defendant at her office and, overheard by defendant's co-worker, threatened to kill her and her counsel and to take the children. Defendant filed a criminal complaint the same day. After hearing testimony, on April 27, 1994, the Chancery Division in Cape May County issued a final restraining order under the Prevention of Domestic Violence Act prohibiting plaintiff from contacting defendant or the children, suspending visitation, and ordering plaintiff's weapons seized from his home. Upon leaving the courthouse with the order on April 27, 1994, defendant was assaulted two blocks away by a man who warned her to "drop the charges." She immediately reported the incident to the police and applied for emergent relief.

At an emergent hearing the next day, defendant testified that she had been followed in New Jersey in the past, and, one day she had returned home and, after seeing someone going over her back fence, she entered her home with a security guard and discovered the word "dead" written in ketchup on her sliding glass door. Defendant also testified that plaintiff had told her that he knew about car bombs, leaving her afraid each time she turned on her car, and he told her he was going to kill her with a gun she had bought him as a gift. Plaintiff was represented at the hearing by his attorney. On the basis of the testimony, the court terminated all plaintiff's contact with defendant and the children, and permitted defendant to change and unlist her telephone number without providing the information to plaintiff.

On June 30, 1994, the New Jersey court appointed a guardian ad litem for the children. Based on interviews with the children and defendant (plaintiff refused to co-operate), the guardian strongly urges in his brief to this court that it is in the best interest of the children that New Jersey maintain jurisdiction over the children's custody.

On August 11, 1994, the Florida court issued an order staying all matters until resolution of the jurisdictional issue by New Jersey's Appellate Division or Supreme Court. Nonetheless, a different Florida Judge issued an order on August 31, 1994 retaining jurisdiction. Various proceedings regarding child support continued in the New Jersey courts through September and October 1994. On November 4, 1994, Florida issued two orders of bodily attachment for the children. On November 10, 1994, plaintiff filed a motion directed to the Presiding Judge of the Essex County Family Part requesting recusal of the Judge hearing the case and the reinstatement of visitation. The motion, filed by plaintiff's current counsel, asserted that defendant received notice of each Florida proceeding, neglecting to mention the testimony of plaintiff's Florida counsel to the contrary. The motion was denied.

On February 6, 1995, the New Jersey court ordered that it had "absolute jurisdiction" over the children as a result of the terms of the August 18, 1991 Florida order and the testimony of plaintiff's Florida counsel that he had never properly served defendant with the papers that resulted in the orders issued within the six-month period retaining jurisdiction. The court also issued a bench warrant for plaintiff's arrest for failing to comply with orders to produce financial records. As noted earlier, plaintiff here appeals from the portion of this order relating to jurisdiction and the fees there awarded.

On April 28, 1995, the New Jersey court found that plaintiff was secreting assets and warned him that it would entertain a motion to transfer sole custody to defendant if he did not pay the fees of the court-ordered psychologist.

There then transpired what can only be characterized as the most bizarre incident in this history. On May 5, 1995, an investigator's affidavit filed in Florida represented that plaintiff had sole custody of the children and that defendant was unlawfully keeping them out of that state. The affidavit omitted all mention of the New Jersey proceedings and of the August 11, 1994 Florida order staying the transfer of custody. Plaintiff supplied the court with defendant's photograph for purposes of identification, and on June 28, 1995, Florida's Governor signed extradition papers for defendant. Governor Whitman of New Jersey issued a warrant for defendant's arrest and extradition on July 20, 1995. On July 29, 1995, defendant was placed in handcuffs and arrested in front of her children. She was released on bail and appeared before the New Jersey criminal court at a habeas corpus hearing on July 31, 1995. The Cape May County Prosecutor informed the court that he believed the warrant was based on misinformation. The criminal court Judge observed that "this reads like some of the old Family Court litigation that led to the adoption of the Uniform Child Jurisdiction and Custody Act. Because this kind of thing just really hasn't happened since the 40's and the 50's." The New Jersey Governor's Office was expected to withdraw the warrant, but the Judge scheduled time for a later hearing if necessary. At a hearing on August 1, 1995 before the New Jersey Judge who had been handling the civil portion of the case, plaintiff's New Jersey counsel informed the court that he knew plaintiff had been communicating with the Miami District Attorney's Office, but he believed the matter to be one of attorney-client privilege. The Judge stated that, in light of the fraud perpetrated upon the executive branch in New Jersey, the privilege did not apply and he expressed displeasure that counsel had withheld the information.

On December 13, 1995, the criminal court granted defendant's writ of habeas corpus based on stipulations agreed to by the New Jersey prosecutor and defendant's attorney. Plaintiff's attorney was present at the proceedings. The prosecutor had several times invited the State Attorney in Florida to participate in the proceeding, but had received no reply. *fn3 Defendant's attorney also received no reply to his request for supporting documentation.

On January 5, 1996, while this matter was pending hearing in this court, we remanded the matter to the trial court, in part, to permit additional conversations between the New Jersey and Florida Judges. On January 29, 1995, the Florida court ceded jurisdiction to New Jersey once again.

On February 8, 1996, plaintiff moved in Florida for a rehearing of the January 29, 1995 order on the basis that (1) he had not been given an opportunity to be heard; (2) the order was without factual or legal justification and (3) the order was contrary to the provisions of the UCCJA and the federal Parental Kidnapping Prevention Act. Plaintiff's Florida counsel noticed a hearing before the Florida court on the issue for April 1, 1996. Defendant received a bare notice, without ever receiving the memorandum submitted to the Florida court in support of the motion. The Federal Express receipt shows the unsuccessful attempt to serve her just before the hearing, and defendant's counsel has certified to us and represented in open court before us that neither he nor his client received the moving papers, including the memorandum on which the Judge's order was based, until well after the hearing. As usual, the Florida court was not apprised by plaintiff of these procedural deficiencies. In effect, this was an ex parte application. On April 2, 1996, the Florida court rescinded its January 29, 1996 order ceding jurisdiction. The rescinding order incorporated, virtually completely, the factual history contained in plaintiff's memorandum. Nearly three weeks later, defendant's attorney received plaintiff's complete application for the April 2, 1996 order.

II. Legal Analysis

The custody and support aspects of this case are governed by different statutes and therefore must be analyzed separately. We first will examine the New Jersey court's authority to enforce and modify the custody provisions of the August 28, 1991 judgment.

A. Custody and Visitation Jurisdiction

It should be noted at the outset that none of the relevant statutes requires that this state meet any jurisdictional prerequisites merely to recognize and enforce a valid out-of-state custody decree. See N.J.S.A. 2A:34-41 ("Recognition of out-of-state custody decrees"), -43(a) ("Filing and enforcement of custody decree of another state"); 28 U.S.C.A. § 1738A ("Full faith and credit given to child custody determinations," known as the Parental Kidnapping Prevention Act (PKPA)). The pertinent issue in such situations is whether the foreign decree is valid under the terms of the statutes. Ibid. If so, it is entitled to be enforced in the same manner as a custody decree issued by a New Jersey court. Ibid. If the decree had been validly modified by the issuing court, then the initial decree is invalid to the extent it has been modified, but the decree as modified is entitled to enforcement by this state. N.J.S.A. 2A:34-41.

Neither party has disputed that the August 28, 1991 order was valid when entered. Plaintiff's counsel agreed at oral argument before us that plaintiff's ex parte attempt in February 1992 to change the wording of the order because of what plaintiff's Florida counsel characterized as "certain inaccuracies" rendered the ensuing Florida order invalid. The questions before this court are therefore whether plaintiff's later attempts to modify the order resulted in valid enforceable orders, thus invalidating provisions of the August 28, 1991 order, and whether New Jersey gained jurisdiction to modify the August 28, 1991 order. We conclude that the custody provisions of the August 28, 1991 order are entitled to enforcement, as it was not validly modified, and that New Jersey alone has jurisdiction to modify that order insofar as it pertains to custody and visitation.

In the August 28, 1991 order, Florida retained jurisdiction for only six months. On the day jurisdiction was to expire, the Florida court issued an order retaining jurisdiction after an ex parte application by the plaintiff. A number of Florida orders issued over the next several years, most, if not all, without proper notice to the defendant, stating by their terms that Florida retained jurisdiction. But, as plaintiff's counsel conceded at oral argument, if the February 28, 1992 order retaining jurisdiction was void, then Florida had ceded jurisdiction by the terms of its August 1991 order.

On at least two occasions after defendant's move to New Jersey, the Judges of New Jersey and Florida conferred as required by the UCCJA, N.J.S.A. 2A:34-34c and Fla. Stat. Ann. § 61.1314 (West 1985), and attempted to resolve the jurisdiction issue. On each occasion the Florida Judge determined that the best interests of the children mandated that Florida cede jurisdiction to New Jersey and so ordered, but thereafter upon ex parte application by plaintiff, *fn4 the Florida Judges rescinded their orders and again asserted jurisdiction. The Florida and New Jersey Judges most recently conferred and recognized that, given the convoluted history of this case, the primary determinant of jurisdiction in this case should be the best interests of the children. The Florida Judge clearly and unequivocally stated in his order of January 29, 1996 that the best interests of the children required the custody and support issues to be determined in New Jersey. Similarly, the earlier March 4, 1994 Florida order relinquishing jurisdiction acknowledged that the New Jersey court "is in a better position to determine the status of the children due to access to teachers, doctors, neighbors and other persons with more up-to-date knowledge of the children ...."

The order of April 2, 1996 rescinding the courts' agreement did not even treat the issue of the children's best interests. Interestingly, we note that in this order the court adopted the procedural history advanced by plaintiff in the belatedly served memorandum, whole sections of which were expressly disavowed by plaintiff's counsel before us at oral argument as having been in blatant disregard of federal and state statutory requirements and defendant's due process rights, a recurrent theme throughout this litigation.

There is no question that the originally amended Florida decree of August 28, 1991 was the last clearly valid custody order. Under the PKPA, this order, in conjunction with plaintiff's continued residence in Florida, constituted a potential basis for continued jurisdiction in Florida. 28 U.S.C.A. § 1738A(d). But the existence of this valid Florida order does not carry with it continued Florida jurisdiction over custody matters when such jurisdiction has been expressly relinquished or lost. 28 U.S.C.A. § 1738A(f)(2); E.E.B. v. D.A., 89 N.J. 595, 611 (1982), cert. denied, 495 U.S. 1210, 103 S. Ct. 1203, 75 L. Ed. 2d 445 (1983). Under the UCCJA, the best interests of the children now determine which state will govern these proceedings. N.J.S.A. 2A:34-31. Having said this, and recognizing the long and bitter history of these parties, we will explain our legal Conclusions in detail.

1. Full Faith and Credit Under the UCCJA and the PKPA

Interstate jurisdictional issues regarding child custody are governed by the Parental Kidnapping Prevention Act, 28 U.S.C.A. § 1738A (PKPA). The provisions of the PKPA work in tandem with each state's version of the Uniform Child Custody and Jurisdiction Act (UCCJA). Thompson v. Thompson, 484 U.S. 174, 181, 108 S. Ct. 513, 517, 98 L. Ed. 2d 512, 521 (1988). As a federal statute, the PKPA preempts the UCCJA's jurisdictional comity provisions at any point where the acts conflict. Matter of Adoption of Child by T.W.C., 270 N.J. Super. 225, 233, 636 A.2d 1083 (App. Div. 1994).

As indicated by its heading, "Full faith and credit given to child custody determinations," the PKPA guides this court in determining when it must give full faith and credit to, and therefore enforce, a particular custody decree of another state. The statute's initial paragraph requires that:

The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided ... any child custody determination made consistently with the provisions of this section by a court of another State.

[ 28 U.S.C.A. § 1738A(a).]

The statute then explains:

(c) A child custody determination made by a court of a State is consistent with the provisions of this section only if--

(1) such court has jurisdiction under the law of such State;

and

(2) one of the following conditions is met:

(A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child's home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;

(B) (i) it appears that no other State would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child's present or future care, protection, training, and personal relationships;

(C) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse;

(D) (i) it appears that no other State would have jurisdiction under subparagraph (A), (B), (C), or (E), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or

(E) the court has continuing jurisdiction pursuant to subsection (d) of this section.

[ 28 U.S.C.A. § 1738A(c)(2).]

Moreover, the statute provides for a state's presumptive continuing jurisdiction as long as the requirements of (c)(1) continue to be met, and either the child or one contestant remains a resident of the state. 28 U.S.C.A. § 1738A(d). Florida clearly was the children's home state *fn5 when the original divorce complaint was filed and plaintiff has continued to be a Florida resident. Therefore under the PKPA, Florida would satisfy subsection (A).

But, as noted above, the PKPA contemplates that a court may decline or lose its right to exercise its continuing jurisdiction and, in that instance, another state may modify an order if that state has jurisdiction. 28 U.S.C.A. § 1738A(f)(2). The August 28, 1991 Florida order states that "Jurisdiction is reserved over the parties and the subject matter for six (6) months from the entry of this order." The court's strong language during the hearing and in its order indicates its intention to minimize plaintiff's and his family's ability to use the Florida court to further disrupt the lives of defendant and the children. The Florida docket shows eighty-three entries from the May 1990 date of the divorce until the court granted defendant's petition to leave the state in August 1991. The Florida Judge observed:

The wife has presented as best she can a plan to move to California. Now, unfortunately a most convenient time [sic]. She has no lodging, no money and constant oppression. If the mother wants to try for a better life with the two children, the court gives her its blessings. Slavery was abolished 125 years ago and so was oppression. The mother's condition following her divorce has been analogous to that of a slave chained to false accusations, constant allegations and hatred. A human being deserves better.

The court's August 28, 1991 order stated:

FINDINGS:

1. That a change in location of the Mother and children is necessary for the best interest of the children, for the best interest of their parents, and for the best interest of this court system.

2. That the oldest child, [W.], age 5, was evaluated by Dr. Simon Miranda, a psychologist. [W.] came across as an efficient and friendly child who seemed highly stressed and conflicted, relative to the emotionally charged inter-family issues that have developed around him. It appeared to Dr. Miranda that [W.] feels confused and caught in the middle of a very hostile inter-parental/grandparental struggle, wherein there is open warfare between both the Mother and the Father generated by the Father's family, particularly the paternal-grandmother, against the Mother, which is vindictive, smothering, and oppressive.

3. Based on the two-volume history of this case and upon the evidence before the Court, the Court finds that the paternal grandmother is well versed in psychological and litigious behavior, and that the Mother's life following her divorce has been filled with false and improper accusations. Such tactics cannot be used to obtain a change of custody to the Father, and cannot be used to defeat a relocation of the Mother to obtain a better life for her children and her.

4. That the Mother is more credible than the husband with respect to the issues before the Court, and that the equities are with her.

9. That the Father should be entitled to liberal visitation, including summers and holidays, and have complete access by telephone with his children.

Based on the above findings, it is hereby ORDERED AND ADJUDGED as follows:

B. There is to be no harassment of the Mother upon leaving Florida. She is to keep the security guard present when the Father has his final good-byes with the children. One false move by either side, including the Father's family, will be dealt with accordingly.

D. Both parties are to provide each other with current residence addresses and phone numbers, both at work and at home. The Mother shall provide such information to the Father within five (5) days of her arrival in California. Any change of address or phone number must be immediately provided to the other party. All notices required under this Order shall be provided by certified mail, return receipt requested, and shall be mailed to the most convenient address for immediate delivery.

H. The Father shall not take and shall not permit any other person to take either of the children to a psychologist, psychiatrist, or similar service while the children are visiting with him. If, after the initial period of adjustment, he wants the to [sic] pay for the children to go to a psychologist, he may do so in California.

L. The Father shall make every effort to ensure that his family does not in any manner harass, annoy or threaten the Mother, and they shall not telephone her residence or place of employment unless it is a true emergency concerning the children.

M. Any transfer of the children between the parties shall be in a public place, most specifically at the security office of the Los Angeles Airport, or the security office of the specific airline used by the Father for his travels to California. There shall be no contact between the parties without a security officer present unless a civility develops between them.

R. All other matters now pending before this Court or before the General Master are canceled. The Father's supplemental petition for change of custody denied.

S. The Mother and children may leave Florida on August 30, 1991.

T. Jurisdiction is reserved over the parties and the subject matter for six (6) months from the entry of this order.

The transcript of the proceeding shows that, despite plaintiff's repeated requests, the court specifically refused to retain jurisdiction beyond the six month period. We find that, under these circumstances, the August 28, 1991 Florida order by its terms relinquished jurisdiction after the expiration of the six month period and that it did so in consideration of the best interests of the children.

As noted earlier, the two subsequent orders entered within the six month period and purporting to retain jurisdiction do not meet the requirements of the PKPA and are not entitled to full faith and credit. To be entitled to full faith and credit, a child custody determination *fn6 must comply with due process as well as jurisdictional requirements:

Before a child custody determination is made, reasonable notice and opportunity to be heard shall be given to the contestants ....

[ 28 U.S.C.A. § 1738A(e).]

The PKPA's reasonable notice provision is consistent with a similar provision in New Jersey's UCCJA. N.J.S.A. 2A:34-32.

No New Jersey court has fully explored the issue of lack of notice under either the PKPA or the UCCJA. Only one published case has even raised the issue. In D.B. v. R.B., 279 N.J. Super. 405, 413, 652 A.2d 1254 (App. Div. 1995), the plaintiff asserted that a Virginia Court had acted inconsistently with the UCCJA and had not obtained personal jurisdiction over her because she had never been properly served and the summons contained an incorrect address. The court found that she had received actual notice and had appeared throughout the Virginia proceedings fully represented by counsel, thus establishing personal jurisdiction. Ibid ; cf. Bednarsh v. Bednarsh, 282 N.J. Super. 482, 491-92, 660 A.2d 575 (Ch. Div. 1995) (considering a similar reasonable notice provision in the federal Full Faith and Credit for Child Support Orders Act, 28 U.S.C.A. 1738B(c)(2)).

The issue of lack of notice has arisen before this court most often in the context of international custody disputes, requiring application of a different and more explicit comity provision in the UCCJA. N.J.S.A. 2A:34-51. See, e.g., Ali v. Ali, 279 N.J. Super. 154, 163-67, 652 A.2d 253 (App. Div. 1994); Schmidt v. Schmidt, 227 N.J. Super. 528, 533, 548 A.2d 195 (App. Div. 1988); Mc. v. Mc., 215 N.J. Super. 132. 139 (Ch. Div. 1986); cf. Fantony v. Fantony, 21 N.J. 525, 535, 122 A.2d 593 (1956) (applying common law notice jurisprudence in refusing to grant comity to a Cuban custody decree which had not been personally served upon the defendant and which had not sufficiently apprised her that custody would be an issue in the proceeding).

Other states which have specifically interpreted the PKPA's reasonable notice provision generally have concluded that decrees issued without proper notice are not entitled to full faith and credit under that statute. Ex Parte Raywood, 549 So. 2d 103, 104 (Ala. Civ. App. 1989); Snow v. Snow, 369 N.W.2d 581, 583 (Minn. Ct. App. 1985); Wells v. Van Coutren, 200 A.D.2d 577, 606 N.Y.S. 2d 295, 578 (App. Div. 1994); State v. Carver, *fn7 113 Wash. 2d 591, 781 P.2d 1308, 1317-18 (Wash. 1989), amended on other grounds, 789 P. 2d 306 (1990); cf. Ingram v. Ingram, 463 So. 2d 932, 936-38 (La. Ct. App. 1985) (holding that inability to serve party who had actual notice of the proceedings, but who had fled with the child and moved surreptitiously from state to state did not render resulting Texas custody decree invalid and unenforceable in Louisiana).

The courts which have considered the issue have also made it clear that in particularly egregious situations "a court's continuing jurisdiction is dependent upon judicial proceedings being consistent with the UCCJA and PKPA. When the [issuing] court entered an order without proper notice, it lost jurisdiction." Greenlaw v. Smith, 123 Wash. 2d 593, 869 P.2d 1024, 1033 (Wash. 1994) (approving of the decisions concerning reasonable notice in State v. Carver, (supra) , and In re Thorensen, 46 Wash. App. 493, 730 P.2d 1380 (Wash. Ct. App. 1987)); accord Snow v. Snow, (supra) , 369 N.W.2d at 583 (South Dakota court no longer had jurisdiction over initial decree because it was not proceeding in accordance with applicable state and federal law when it entered ex parte decree transferring custody). The Washington and Minnesota courts relied on 28 U.S.C.A. 1738A(d) which states that "the jurisdiction of a court of a State which had made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) continues to be met and such State remains the residence of the child or of any contestant." State v. Carver, (supra) , 781 P.2d at 1317-1318; In re Thorenson, (supra) , 730 P.2d at 1385; Snow v. Snow, (supra) , 369 N.W.2d at 583. Thus, even if the Florida court had not declined to retain jurisdiction beyond the six months set forth in its August 1991 order, Florida's subsequent reassertions of jurisdiction without proper notice to defendant were ineffective.

In the case before this court, the two Florida orders purporting to extend jurisdiction and entered prior to the expiration of the six month retention of jurisdiction were issued without proper notice to defendant. Plaintiff's counsel has specifically agreed before us that the order signed February 6, 1992 is void. It was issued upon ex parte application by plaintiff's Florida counsel who later testified before the New Jersey court that he had never even attempted to give notice to defendant or to serve her with a copy of the amended order, and that he knew she was unrepresented at the time. Defendant first discovered the existence of the February 6, 1992 order almost two months after it was signed. The issuance of the order clearly did not comply with the reasonable notice provision of either the PKPA or the UCCJA. Consequently, it is not entitled to the full faith and credit of this court.

Similarly, the order signed on February 28, 1992 is not entitled to full faith and credit because of the lack of proper notice. Plaintiff's Florida counsel testified in New Jersey that the petition forming the basis for this order was not personally served on defendant until March 17, 1992, almost one month after the order was signed. While the PKPA does not define "reasonable notice and opportunity to be heard," both New Jersey's and Florida's UCCJA require that notice be given at least 20 days before a hearing. N.J.S.A. 2A:34-33(b); Fla. Stat. Ann. § 61.1312(2). (New Jersey's statute has an exception for emergent situations, N.J.S.A. 2A:34-34(b); Florida's does not.) Plaintiff made no attempt prior to the hearing to serve notice upon defendant at her father's address in California as earlier directed by the Florida court. *fn8 Instead, according to the certificate of service, he had mailed the notice to a dentist's office where he believed that defendant worked. Although defendant admits that she, by chance, became aware of the hearing on the day it was held, such notice as defendant received cannot be deemed "reasonable" under any interpretation of the statutes. Plaintiff deliberately circumvented the court's prior order regarding service upon defendant. Defendant had none of plaintiff's moving papers and no counsel, and thus she had no basis to assess her rights or to assert her position. The resulting February 28, 1992 order purporting to retain jurisdiction did not comply with the notice requirements of the PKPA as it was obtained in violation of defendant's due process rights. *fn9 As such, the order is not entitled to full faith and credit.

Since neither this order nor the February 4, 1992 order is entitled to our full faith and credit, we conclude that the August 28, 1991 order was the only valid custody order in effect at the expiration of the six-month period. By its terms, that order relinquished jurisdiction as of six months from the date of its entry, and at that point any state which had a basis to assert jurisdiction under the UCCJA and PKPA could have done so.

After February 28, 1992, the Florida court continued to issue orders "retaining" or "extending" jurisdiction over the matter. The orders, issued outside of the six-month period established by the August 1991 order, asserted no new basis for jurisdiction and, as with the previous orders, were issued without defendant having received reasonable notice and opportunity to be heard. The first of these orders issued on June 2, 1992 as a result of a March 30, 1992 hearing before a general master and purportedly affected plaintiff's support obligation. On March 26, 1992, via regular mail defendant had received a simple notice, with no supporting papers, of a March 30, 1992 hearing regarding a change of custody. The general master denied defendant's telephone request for an adjournment so she might retain local counsel. Under the threat of losing custody of her children, she therefore participated in the hearing via telephone, unrepresented by an attorney, and again unaware of the content of plaintiff's submission to the court. We cannot view defendant's forced participation in this proceeding as constituting an appearance conferring jurisdiction anew on Florida. A bare notice, received four days before a hearing in another state, along with the court's denial of an adjournment to retain local counsel cannot in our view meet the PKPA's or UCCJA's standards requiring reasonable notice and opportunity to be heard for a person threatened with the loss of her children. *fn10 Furthermore, as we noted, the order asserted no new basis of jurisdiction, and, at this point, Florida had no jurisdiction by reason of its cession of jurisdiction in its August 28, 1991 order.

Subsequently, defendant attempted through local counsel to bring to the general master's attention via an emergency petition for rehearing plaintiff's actions in obtaining the 1992 orders. This was essentially a challenge to the prior orders, not a new submission of the matter to the Florida court. Although a hearing was held on June 4, 1992, the master refused to consider the merits of defendant's petition because he said he lacked jurisdiction to do so. No order issued as a result of this hearing. We see no reason to disagree with the Florida court's Conclusion that it had no jurisdiction over the matter merely on the basis of defendant's petition. *fn11

According to both parties' Florida attorneys, no further hearings were held in Florida during 1992.

2. Modification Jurisdiction Under the PKPA and the UCCJA

We now reach the question of whether New Jersey gained the right to modify the August 28, 1991 order as it pertains to custody. As we noted earlier, the defendant had remarried in January 1992. Her new husband was a member of the Coast Guard and the family moved with him when he was transferred to New Jersey in January 1993. On January 28, 1993, defendant filed the August 28, 1991 order with the clerk of the Superior Court and the clerk assigned a docket number. See N.J.S.A. 2A:34-43. The same day, defendant's counsel filed with the Florida court a "Notice, Pursuant to UCCJA, For Change of Jurisdiction From Florida to New Jersey." Defendant's counsel was apparently under the mistaken assumption that either this notice or the filing of the judgment in New Jersey conferred absolute jurisdiction on New Jersey under the UCCJA. But, the filing of the judgment in New Jersey, without more, merely permitted this state to enforce the foreign custody order. Compare N.J.S.A. 2A:34-43 (enforcement of foreign decree) with N.J.S.A. 2A:34-42 (modification of foreign decree); see Brigitte M. Bodenheimer, Interstate Custody: Initial Jurisdiction and Continuing Jurisdiction under the UCCJA, 14 Fam. L. Q. 203, 220-21 (1981).

Under the PKPA's modification provisions:

(f) A court of a State may modify a determination of the custody of the same child made by a court of another State, if

(1) it has jurisdiction to make such a child custody determination;

and

(2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.

[ 28 U.S.C.A. § 1738A(f).]

Subsection (2) is satisfied in that Florida declined to exercise continuing jurisdiction by the terms of the August 28, 1991 order. Thus, the second requirement for New Jersey's exercise of modification jurisdiction is satisfied.

To determine whether New Jersey has jurisdiction to make a custody order thus satisfying the first requirement, we look to the jurisdictional prerequisites of our own UCCJA. Neger v. Neger, 93 N.J. 15, 31 (1983). New Jersey clearly has jurisdiction under N.J.S.A. 2A:34-31a(2). N.J.S.A 2A:34-31(a)(2) sets out one of four possible, independent bases for jurisdiction:

a. The Superior Court of the State of New Jersey has jurisdiction to make a child custody determination by initial or modification decree if:

....

(2) It is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this State, and (ii) there is available in this State substantial evidence concerning the child's present or future care, protection, training, and personal relationships; or ....

The children have a significant connection with this state. It is the residence of their mother, with whom they have lived for their entire seven and ten-year-old lives. The children themselves have resided here for three and a half years. It is the home of their stepfather who, along with their mother, has provided their financial support during these years that their father has refused to pay child support. This is not a case where the children were removed from Florida surreptitiously or brought to New Jersey for the purpose of concealment. They left Florida with the blessing of the Florida court and came to reside in New Jersey as a result of their stepfather's career. *fn12 Although the litigation in this State may have dragged on longer than it should have, the resulting New Jersey orders did not unfairly permit or prolong the children's residence in this State. There was no reason for the trial court or this court to disregard the fact, twice recognized by the Florida court, that all of the evidence concerning the children's schooling, babysitters, friends and daily lives for the past several years is located in New Jersey, thus more than meeting the "substantial evidence" standard of the statute. Thus, we conclude that New Jersey has jurisdiction to modify the August 28, 1991 order.

Plaintiff argues, however, that whether or not New Jersey had jurisdiction, it was restricted from exercising that jurisdiction by 28 U.S.C.A. 1738A(g) which provides that:

A court of a State shall not exercise jurisdiction in any proceeding for a custody determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody determination.

We have already determined that Florida no longer had jurisdiction over the matter at the time the parties appeared in New Jersey. Since any proceedings in Florida at that time therefore were necessarily inconsistent with the provisions of the UCCJA, it is unnecessary for us to evaluate whether a particular allegedly pending proceeding involved an exercise of jurisdiction consistent with the terms of the PKPA. We note, however, that each of the particular actions on which plaintiff attempts to rely were conducted without proper notice in disregard of defendant's statutory due process rights. *fn13 Such ex parte proceedings to modify the earlier decree did not constitute pending actions which would have precluded the New Jersey court from exercising its jurisdiction on the custody issues. Snow v. Snow, (supra) , 369 N.W.2d at 583. Cf. Wachter v. Wachter, 439 So. 2d 1260, 1263-65 (La. Ct. App. 1983) and Elder v. Park, 104 N.M. 163, 717 P.2d 1132, 1137 (N.M. Ct. App. 1986) (applying first-in-time rule where initial custody decree was issued without notice).

Finally, we note plaintiff's argument that he was entitled to disregard the orders of the New Jersey court because it had no jurisdiction over him personally. There is clear personal jurisdiction over plaintiff by reason of his appearance in New Jersey. R. 4:4-6. In any event, personal jurisdiction is not required when a court is exercising jurisdiction solely over custody matters, provided that the party is given reasonable notice and opportunity to be heard. Genoe v. Genoe, 205 N.J. Super. 6, 15, 500 A.2d 3 (App. Div. 1985). Plaintiff's jurisdictional arguments as they pertain to the custody issue are therefore without merit.

B. Child Support Jurisdiction.

We now turn to the child support provisions of the August 28, 1991 order. Merely registering the out-of-state order with the Clerk of the Superior court in accordance with the UCCJA does not enable a New Jersey court to enforce or modify the support provisions.

We will first discuss New Jersey's ability to modify the support provisions of the August 28, 1991 Florida order. On October 20, 1994, Congress enacted the Full Faith and Credit for Child Support Orders Act (FFCCSOA), Pub. L. No. 103-383, 108 Stat. 4064 (codified as 28 U.S.C.A. § 1738B). Obviously, the Act's guidance was unavailable to the trial court when it was first confronted with this case in 1993. Under the continuing jurisdiction section of the FFCCSOA, the Florida court retained exclusive jurisdiction to modify this support order because plaintiff, as a contestant, remained a resident of that State and no other state gained the authority to modify the order. 28 U.S.C.A. § 1738B(d). Modification authority under the statute is limited to circumstances where

(1) the court has jurisdiction to make such a child support order; and

(2)(A) the court of the other State no longer has continuing exclusive jurisdiction of the child support order because that State no longer is the child's State or the residence of any contestant; or

(B) each contestant has filed written consent to that court's making the modification and assuming continuing, exclusive jurisdiction over the order.

[ 28 U.S.C.A. § 1738B(e).]

Since the parties' apparently have not filed written consent allowing our courts or those of any other state to modify the order and since plaintiff remains a Florida resident, under the FFCCSOA, apparently neither this State nor any other gained authority to modify the support provisions of the August 28, 1991 order. Florida therefore retained continuing exclusive jurisdiction over the support provisions of this order, and New Jersey is without authority to modify them.

If defendant wishes to enforce these provisions, she must avail herself of the enforcement methods established by the Revised Uniform Reciprocal Enforcement Act, (RURESA), N.J.S.A. 2A:4-30.24 to 30.64, which we will explain further. In Kulko v. California Superior Court, 436 U.S. 84, 100-101, 98 S. Ct. 1690, 1701, 56 L. Ed. 2d 132, 146 (1978), the Supreme Court held that the mere presence in a state of the support obligee and the children was insufficient to confer personal jurisdiction over an obligor who was domiciled in another state. See also Genoe v. Genoe, 205 N.J. Super. 6, 500 A.2d 3 (App. Div. 1985) (distinguishing jurisdiction necessary to enforce an out-of-state custody versus support order). The Court found that a proper mechanism for facilitating the collection of child support in such circumstances already existed in the URESA statutes adopted by both parties' states. Kulko v. California Superior Court, 436 U.S. at 98-99, 98 S. Ct. at 1700-1701, 56 L. Ed. 2d at 145-46. These statutes allow an obligee-parent claiming support from an out-of-state parent to file the petition in his or her own state, yet have it adjudicated on the merits in the obligor's state of residence without either party leaving their own state. Id. at 99, 98 S. Ct. at 1700, 56 L. Ed. 2d at 145. The Court offered a very clear explanation of how the statutes function:

Under the [Uniform] Act, an "obligee" may file a petition in a court of his or her State (the "initiating court") to obtain support. If the court "finds that the [petition] sets forth facts from which it may be determined that the obligor owes a duty of support and that a court of the responding state may obtain jurisdiction of the obligor or his property," it may send a copy of the petition to the "responding state." This has the effect of requesting the responding State "to obtain jurisdiction over the obligor." If jurisdiction is obtained, then a hearing is set in a court in the responding State at which the obligor may, if he chooses, contest the claim. The claim may be litigated in that court, with deposition testimony submitted through the initiating court by the initiating spouse or other party. If the responding state court finds that the obligor owes a duty of support pursuant to the laws of the State where he or she was present during the time when support was sought, judgment for the petitioner is entered. If the money is collected from the spouse in the responding State, it is then sent to the court in the initiating State for distribution to the initiating party.

[ Id. at 99 n.13, 98 S. Ct. at 1700 n.13, 56 L. Ed. 2d at 146 n.13. (citations omitted).]

To enforce her claim, defendant therefore must file a complaint under the RURESA provisions set out in N.J.S.A. 2A:4-30.35. The New Jersey court, as the initiating state, N.J.S.A. 2A:4-30.26c, will then assess the complaint and, if appropriate, certify the complaint and send it to the Florida court, N.J.S.A. 2A:4-30.38. None of defendant's actions thus far precluded her from following these procedures if she wished to enforce the support provisions of the August 1991 order. Defendant's attempt to enforce the support order should be treated as an application under RURESA, and should now be so processed. Her complaint, when filed, shall be deemed to date back to her initial application for enforcement of the Florida support order. When the matter is considered in Florida, we trust that the circumstances described earlier giving rise to the amended support orders will be considered.

Accordingly, we hold that plaintiff has correctly asserted that New Jersey is without subject matter jurisdiction for purposes of enforcing the child support provisions of the August 1991 order.

III. Conclusion.

Since we are now the sole state with jurisdiction over custody and visitation issues, the order of the Family Part of the Chancery Division of the Superior Court of New Jersey is affirmed as it affects custody and visitation. The order of the Family Part is reversed and vacated insofar as it asserts jurisdiction over the support provisions of the August 28, 1991 order and to the extent that it provides modification or enforcement relief in the area of support. We remand for processing defendant's RURESA complaint for support, which should be considered retroactive to her initial application to the Family Part. Finally, in light of our ruling concerning support jurisdiction, we remand for the trial court's reconsideration of the amount of counsel fees awarded.

none

[EDITOR'S NOTE: The following court-provided text does not appear at this cite in N.J. Super]

ADDENDUM (Detailed Factual and Procedural Summary)

This addendum provides a detailed factual and procedural history of this case, with citations to the record. The events are related primarily in chronological order. We have presented in bold print the chronological history in Judge Feder's April 2, 1996 order, and then related the facts and procedure giving rise to, or affected by the order in question, or succeeding orders or events where they had been omitted.

Samuel Schuyler and Mary Payne, now known as Mrs. Mary Ashcraft, were married in the State of Florida in 1985. They had two children, born June 29, 1986 and March 24, 1989. [Pa-75 to 76]. *fn14 Judge Philip Bloom, Judge of the Circuit Court of the State of Florida granted the parties a divorce on May 7, 1990. [Pa-1 to 3].

May 7, 1990

Final judgment Florida (Judge Philip Bloom) providing that both parties shall have shared parental responsibility for the minor children but designating the Wife as the children's primary residential parent and affording the Husband "reasonable rights of visitation" pursuant to the parties' Property Settlement Agreement.

The final judgment awarded primary physical custody of the children to their mother, Mrs. Ashcraft, and held that "Florida is the home state of the minor children, and accordingly, it is the sole jurisdictional state to determine child custody and visitation under the Uniform Child Custody Jurisdiction Act." [Pa-2].

August 20, 1991 *fn15

Order Florida (Judge Philip Bloom) permitting the Wife to relocate with the minor children to California and providing the Husband with "liberal visitation, including Summers and extended vacations from school..." In addition, both parties were required to provide the other party "immediately" as to any change of address or phone number.

On the day the divorce was granted, the paternal grandmother lodged sexual abuse charges against Mrs. Ashcraft. [11T-13 to 14]. The grandmother was a member of Florida's Guardian Ad Litem Program. After immediate investigation, the charges were determined to be false. [11T-13 to 14; B]. Two months later, the family and paternal grandmother obtained a "pickup" order for the children, alleging the same events without telling anyone the case already had been investigated and disposed of by the authorities. [Da-638; A]. After testimony by the investigators, the order was quashed. . The next day, the order was reinstated by a different Judge. . At a hearing, Mr. Schuyler and his family attempted to negotiate dropping the charges in return for greater visitation rights. .

On August 12, 1991, Mrs. Ashcraft appeared before Judge Bloom on an emergency motion to modify the final divorce judgment and obtain approval to relocate to California with the children. [Pa-4, 8]. After hearing testimony from both parties, the court granted Mrs. Ashcraft's motion with an order issuing August 28, 1991. [Pa-4 to 9]. The court characterized the situation as "a semi-emergency if not an emergency," [Da-24], and observed:

The wife has presented as best she can a plan to move to California. Now, unfortunately a most convenient time [sic]. She has no lodging, no money and constant oppression. If the mother wants to try for a better life with the two children, the court gives her its blessings. Slavery was abolished 125 years ago and so was oppression. The mother's condition following her divorce has been analogous to that of a slave chained to false accusations, constant allegations and hatred. A human being deserves better.

[Da-6].

The Florida docket shows eighty-three entries from the May 1990 date of the divorce until Judge Bloom granted Mrs. Ashcraft's petition to leave the state in August 1991. [Da-361 to 362]. The court's August 28, 1991 order included the following:

FINDINGS:

1. That a change in location of the Mother and children is necessary for the best interest of the children, for the best interest of their parents, and for the best interest of this court system.

2. That the oldest child, Westley, age 5, was evaluated by Dr. Simon Miranda, a psychologist. Westley came across as an efficient and friendly child who seemed highly stressed and conflicted, relative to the emotionally charged inter-family issues that have developed around him. It appeared to Dr. Miranda that Westley feels confused and caught in the middle of a very hostile inter-parental/grandparental struggle, wherein there is open warfare between both the Mother and the Father generated by the Father's family, particularly the paternal-grandmother, against the Mother, which is vindictive, smothering, and oppressive.

3. Based on the two-volume history of this case and upon the evidence before the Court, the Court finds that the paternal grandmother is well versed in psychological and litigious behavior, and that the Mother's life following her divorce has been filled with false and improper accusations. Such tactics cannot be used to obtain a change of custody to the Father, and cannot be used to defeat a relocation of the Mother to obtain a better life for her children and her.

4. That the Mother is more credible than the husband with respect to the issues before the Court, and that the equities are with her.

9. That the Father should be entitled to liberal visitation, including summers and holidays, and have complete access by telephone with his children.

Based on the above findings, it is hereby ORDERED AND ADJUDGED as follows:

B. There is to be no harassment of the Mother upon leaving Florida. She is to keep the security guard present when the Father has his final good-byes with the children. One false move by either side, including the Father's family, will be dealt with accordingly.

D. Both parties are to provide each other with current residence addresses and phone numbers, both at work and at home. The Mother shall provide such information to the Father within five (5) days of her arrival in California. Any change of address or phone number must be immediately provided to the other party. All notices required under this Order shall be provided by certified mail, return receipt requested, and shall be mailed to the most convenient address for immediate delivery.

H. The Father shall not take and shall not permit any other person to take either of the children to a psychologist, psychiatrist, or similar service while the children are visiting with him. If, after the initial period of adjustment, he wants the to [sic] pay for the children to go to a psychologist, he may do so in California.

L. The Father shall make every effort to ensure that his family does not in any manner harass, annoy or threaten the Mother, and they shall not telephone her residence or place of employment unless it is a true emergency concerning the children.

M. Any transfer of the children between the parties shall be in a public place most specifically at the security office of the Los Angeles Airport, or the security office of the specific airline used by the Father for his travels to California. There shall be no contact between the parties without a security officer present unless a civility develops between them.

P. The amount of monthly child support is not changed and the Father must continue to provide $500.00 per month child support through Central Depository, c/o Clerk of the Dade County Circuit Court, and shall be obligated to pay the Central Depository fee for each payment made. Each payment shall be due and payable once every month by the 28th of the month. The Father shall immediately inform Central Depository of any change in residence and work address.

R. All other matters now pending before this Court or before the General Master are canceled. The Father's supplemental petition for change of custody denied.

T. Jurisdiction is reserved over the parties and the subject matter for six (6) months from the entry of this Order.

[Da-39 to 47; Pa-4 to 13].

At the court proceeding, Mr. Schuyler's attorney had repeatedly requested that Judge Bloom retain jurisdiction as long as possible. [Da-13 to 15]. The Judge found the request "very unusual" and specifically refused to retain jurisdiction beyond six months. [Da-16].

On December 19, 1991, Judge Bloom granted a motion to withdraw submitted by Mrs. Ashcraft's attorney, Alice R. Best. [Da-49]. Mr. Schuyler's attorney, Lewis G. Gordon, was copied on the order which stated that "all further pleadings shall be served on the Former Wife, MARY PAYNE, now known as MARY ASHCRAFT, and sent to her c/o Richard Payne, 17870 Alps Drive, Tehachapi, California 93561 [phone: (805) 822-7693], until such time as she retains new counsel and an appearance is filed on her behalf." [Da-49]. *fn16 Mr. Gordon also had attended the hearing regarding Ms. Best's motion to withdraw. [4T-2.21].

Two days before the Christmas vacation of December 1991, after Mr. Schuyler threatened not to return the children after vacation, Judge Bloom held a conference call with Mrs. Ashcraft and Mr. Gordon where he informed Mr. Gordon that, if such a thing occurred, he would use all his power to ensure it never happened again. [5T-23].

On January 28, 1992, Mr. Schuyler's attorney, Lewis G. Gordon, submitted an ex parte "Agreed Amended Order on Motion to Modify Final Judgment" to Judge Philip Knight. [Da-50]. No motion, however, was submitted. [3T-24 to 25]. The "Amended Order on Motion to Modify Final Judgment," concerned Judge Philip Bloom's August 28, 1991 order and:

- eliminated the phrase "generated by the father's family, particularly the paternal grandmother" in para. 2;

- excised para. 3 entirely;

- removed the phrase, "and they shall not telephone her residence or place of employment unless it is a true emergency concerning the children" in para. "L."

[Pa-221 to 228].

On January 29, 1992, the case was transferred to Judge Amy Steele Donner. Judge Donner signed the "amended order" on February 6, 1992 with copies to Lewis Gordon, Alice Best (defendant's former attorney) and the General Master, and without the submission of motion papers by either side. [4T-2.22; Pa-228]. Gordon later testified that he had amended the order "because of certain inaccuracies," [3T-17], after conversations with Ms. Best, knowing that Ms. Best no longer represented Mrs. Ashcraft, and knowing that Mrs. Ashcraft was in fact unrepresented. [3T-15 to 17]. Gordon also acknowledged that he never notified Mrs. Ashcraft of the amendments. [3T-16]. She learned of them for the first time during a March 30, 1992 hearing. [Pa-690].

February 25, 1992

Husband's Florida Petition for Contempt violation of Shared Parental Responsibility and for Change in Custody .

February 28, 1992

Order Florida (Judge Bernard Shapiro) adopting and approving General Master's Report and Recommendations of even date retaining jurisdiction over all pending petitions.

On February 14, 1992, Mr. Schuyler had filed a verified petition with the Florida court to reduce child support and to retain jurisdiction. [Pa-231 to 233]. The same day, Judge Donner referred the matter to a General Master for fact finding. [Pa 219 to 220]. Mr. Schuyler's copy of the petition includes Lewis Gordon's certification that the petition was mailed on February 4, 1992 to Mrs. Ashcraft in care of a dentist's office in Tehachapi, California. [Pa-233]. This is not the address Judge Philip Bloom had ordered Mr. Schuyler to use in December 1991. On February 26, 1992, Mr. Schuyler filed with the court a petition for contempt alleging violation of shared parental responsibility and for a change in custody accusing Mrs. Ashcraft of hiding the children and not sending them to school. [Pa-237 to 238]. The petition contains a certification that a copy of the petition was mailed on February 25, 1992 to Mrs. Ashcraft at the dentist's office. [Pa-238]. Argument on the petition was heard the same day, February 25, 1992 (although the petition was not filed until the next day). [Pa-235]. Mr. Gordon later testified that Mrs. Ashcraft was not personally served with either of these petitions until March 17, 1992 when they were delivered to an address in Treasure Island, California. [3T-38 to 41; Pa-246].

Also, Gordon apparently never served Mrs. Ashcraft with a copy of the referral order as required by the Florida rules cited within the referral order. Fla. R. Civ. P. 1.490; see also Fla. Fam. L. R. Civ. P. 12.490. Under Florida law, a general master may not hear any matter without the consent of the parties. Ibid. The order of referral itself contains the following:

* NOTE: IN THE EVENT EITHER PARTY DOES NOT CONSENT TO THIS REFERRAL, under rule 1.490, ORALLY OR IN WRITING, AT OR BEFORE THE HEARING BEFORE THE MASTER, THEN THIS MATTER SHALL BE FORTHWITH RETURNED TO THE UNDERSIGNED JUDGE WITH A NOTICE AS TO WHICH PARTY DID NOT CONSENT AND THE AMOUNT OF TIME NEEDED FOR A HEARING.

[Pa-219].

On February 24, 1992, in the course of attempting to retrieve Mrs. Ashcraft's files from the Florida courts, Mrs. Ashcraft's future New Jersey attorney, Mr. Harvey Meltzer, *fn17 became aware that Master Dellow was scheduled to hear matters in this case. [Da-65 to 66; 3T-48]. On February 24 and 26, the attorney informed Master Dellow's chambers by telephone that Mrs. Ashcraft had not received notice and would be unreachable for several days as she was moving, a fact known to Mr. Schuyler. [Da-65 to 66]. She had remarried during this time to a member of the Coast Guard and had earlier notified Mr. Schuyler of this fact by telephone. She mailed a certified letter to Mr. Schuyler informing him of her new address on February 23, 1992. . Mrs. Ashcraft found out about the hearing on the afternoon of February 25, 1992. [Da-66; Pa-692].

After hearing argument solely from Mr. Schuyler's counsel on February 25, 1992, General Master William Dellow issued a report and recommendation on February 28, 1992, finding that Mrs. Ashcraft had "failed to appear" and "was evading service of process" and the court should retain jurisdiction. [Pa-235 to 236]. Mr. Schuyler and his attorney had testified that Mrs. Ashcraft was "evading service." [3T-52].

The report was adopted by Judge Bernard Shapiro the same day, with the order stating that he had been advised that "the ten (10) days period provided by [Rule 1.490(h), Fla. R. Civ. P.] has been waived." [Pa-234; Da-70]. Rule 1.490(h) states that:

"master shall file the report and serve copies on the parties. The parties may serve exceptions to the report within 10 days from the time it is served on them. If no exceptions are filed within that period, the court shall take appropriate action on the report. . . .

Therefore, by asserting that the 10 day period had been waived (although Mrs. Ashcraft had never been notified of the orders), Judge Shapiro was able to enter an order allegedly extending jurisdiction within the six month time period established by Judge Bloom's August 28, 1991 order.

On March 23, 1992, Gordon filed a notice of hearing with the court which he certified had been sent via regular mail to Mrs. Ashcraft on March 19, 1992. [Pa-242; 4T-2.59]. The notice stated that a hearing on the petitions for contempt and change of custody, and the verified petition for contempt, modification and sanction and a petition for reduction of child support would be heard on March 30, 1992, before General Master Dellow. [Pa-242]. Mrs. Ashcraft received what purported to be a notice, without any supporting documents, on March 26, 1992, and so informed the court. Her telephone request for an adjournment to retain local counsel was denied. [Pa-692; April 8, 1993 letter to New Jersey trial court].

By certified letter which Master Dellow received on March 26, 1992, Mrs. Ashcraft informed the court that she had just received notice of the February 25, 1992 hearing and that she had received no other notices of any hearings. . She also informed Master Dellow in the letter that she was in the process of "having jurisdiction moved to California as per Judge Bloom's order . . . ." .

Mrs. Ashcraft took part in the March 30, 1992 hearing via telephone, unrepresented by an attorney. [5T-17; Pa-692 to 693]. In the words of the New Jersey trial court, during the hearing, "the defendant was pummeled by Judge Dellow. Pummeled for not being prepared to give all her financial records and everything on the telephone." [5T-18]. Master Dellow told Mrs. Ashcraft that, based on the fact she had not filed a financial affidavit, he concluded that she did not have any expenses. [Pa-693]. He admonished her for not knowing that she was required to file the affidavit. (That requirement is included in the order of referral which was never served on Mrs. Ashcraft. [see Pa-219].) Mrs. Ashcraft had never been served a copy of Mr. Schuyler's financial affidavit which Master Dellow then relied on in his report. [Pa-693 to 694].

During the March 30, 1992 hearing, Mrs. Ashcraft became aware that she and Master Dellow were reading from different versions of Judge Bloom's August 28, 1991 order. [Pa-690]. Mr. Gordon then admitted that he had changed the order, allegedly with Ms. Best's concurrence. In Master Dellow's presence, Mrs. Ashcraft questioned how this could have occurred since Ms. Best had ceased representing her on December 19, 1991. [Pa-690].

May 14, 1992

Report and Recommendations of Florida General Master after hearing (in which Wife participated via telephone) in which General Master Dellow recommended that the Court shall retain jurisdiction concerning all matters presently before the court.

In Master Dellow's May 14, 1992 report, he concluded that Mr. Schuyler's earnings had decreased to only $1000.00 per month gross and that Mrs. Ashcraft should now pay for the children's medical insurance and half the cost of their visits to their father in Florida. [Pa-45 to 47; Da-85 to 87]. He increased the time of the children's Florida vacation with the father to seven weeks and required that Mrs. Ashcraft provide Mr. Schuyler with her employment address. [Pa-48; Da-88]. The report required Mrs. Ashcraft to provide Mr. Schuyler with the names of the children's day care providers and to make them available for phone calls each day for one hour. [Pa-48; Da-88]. The report also recommended that Mr. Schuyler's request for custody be denied, and that "the general master retain jurisdiction concerning all matters presently before the court." [Pa-48; Da-88].

June 2, 1992

Order Florida (Judge Donner) adopting and approving the General Master's Report and Recommendation of May 14, 1992, including the retention of jurisdiction of proceedings relating to the custody of the children.

Judge Donner issued an order adopting the report in its entirety on June 2, 1992. [Da-84].

On May 26, 1992, Mrs. Ashcraft, through counsel, Gloria Gross, had noticed an emergency hearing before Master Dellow returnable June 4, 1992. [Pa-53]. The attached verified emergency petition requested modification of the February 4 order, the February 28 order and the May 14 report. [Pa-688]. The petition explained that Mrs. Ashcraft had not been notified of the amended order; she had not been served with any of the court submissions appearing on the docket from January 22, 1992 through February 4, 1992; she had not received any submissions dated February 14 through March 23, 1992; she had not received notification of the March 30 hearing until four days prior, and the notification omitted Mr. Schuyler's supporting financial affidavit. [Pa-690 to 692]. It further alleged that, based on Mrs. Ashcraft's recent review of the affidavit, Mr. Schuyler had misrepresented his financial position to the court. [Pa-694]. Specifically, it pointed out, among other things, that Mr. Schuyler had not informed the court that he had inherited 18% of a $5,000,000 estate since Judge Bloom's order, [Pa-695]; his mother had allegedly financed a sham business to hide income, [Pa-694]; he had an exclusively cash business, [Pa-694]; he had not listed any bank accounts, [Pa-695]; he listed child support deductions without informing the court that he was four months in arrears, [Pa-695]; listed monthly income of $940.00 and expenses of $1,514.10, [Pa-696]. The petition also brought to the court's attention (1) Mr. Schuyler's denying Mrs. Ashcraft all contact with the children during their Florida visits on the basis that "'uninterrupted' [visits] means no telephonic contact" and (2) his threats to keep the children in Florida and resurrect the previously discredited child sexual abuse charges against Mrs. Ashcraft. [Pa-696 to 698].

Master Dellow heard the parties on June 4, 1992. [Pa-704]. Ms. Gross repeatedly attempted to apprise the master of the fraud issue, but he cut her off each time and never heard her arguments.

MR. GORDON: I'm referring to an a motion I received in the mail.

MS. GROSS: It's based on fraud.

THE COURT: Based on what?

MS. GROSS: It's based on fraud, my motion is based on fraud. We have a problem in that the children are supposed to go --

THE COURT: Ma'am, let [Gordon] finish. Then the other attorney will respond. Can I have a copy of the motion? Has it made the court file?

MS. GROSS: Your Honor they are based on fraud --

THE COURT: Excuse me.

MS. GROSS: There was a --

THE COURT: Excuse me.

MS. GROSS: -- fraud perpetrated on the court. If I --

THE COURT: Excuse me. What are the procedural issues before we get to factual issues.

MR. GORDON: You have reserved jurisdiction on matters that were pending at the last hearing. You have no reserved jurisdiction on anything that has to do with haircuts [Mrs. Ashcraft had made a point about haircuts in her petition], you have no jurisdiction on the amended order, I don't think you have reserved jurisdiction on February 28th, that was just a status conference.

MS. GROSS: He modified the order. You made the order based on a fraudulent petition --

THE COURT: Excuse me. That's the 18th time you've said that. Let me explain to you. The first thing I have to do is, I've got to establish my jurisdiction to deal with matters before me. That's the first thing I have to do. Then we can attempt to get to the merits.

[Pa-707 to 714].

Master Dellow never reached the merits of the fraud issue. Instead, based on his decision that he had reserved jurisdiction on the earlier contempt petition, he heard Mr. Gordon on the issues previously raised in that petition and said he wanted to "discuss possible sanctions" against Mrs. Ashcraft. [Pa-724, 730, 732]. Over the telephone, Mrs. Ashcraft explained that Mr. Schuyler had harassed and threatened the babysitter, [Pa-740 to 741]; was four months behind on child support, [Pa-751]; had refused her all contact with the children while he had them, had harassed her in her office almost causing her to lose her job, so she then refused to give him the new number, [Pa-751]; had repeatedly called her home and hung up so he could claim she was not allowing the children to speak to him, although he spoke to the children every day from other telephone numbers, [Pa-740 to 743]; had threatened not to send the children back from their visits and to create physical evidence of molestation in their son and blame it on her. [Pa-747].

Master Dellow informed Mrs. Ashcraft that she could have contact with the children during visits reciprocal to that she gave the Mr. Schuyler and warned her that "if I find that you've been obstructing contact with the children, I'm going to restrict yours," [Pa-744]; if she didn't provide her work number he would not require shared responsibility during the Florida visits, [Pa-754]; suggested that if she was worried about molestation, she could take the child to a doctor before he left for Florida, [Pa-748]; and increased Mr. Schuyler's summer visit to eight weeks from the six weeks stated in the original order, [Pa-745]. When Master Dellow asked Mr. Schuyler directly if he had paid child support, Mr. Schuyler replied, "You have a computer on your desk you always check it out." [Pa-751 to 752]. The master made no attempt to follow up his query on child support payments. He ruled that he would hear the modification arguments in July including the fraud claim which he said had to be raised as a request for relief for final judgment under "rule 1.540" because Judge Donner had already signed the order. [Pa-721 to 722]. Mrs. Ashcraft's counsel had not received a copy of Judge Donner's order until the June 4, 1992 hearing. [Pa-710 to 711]. Master Dellow informed that he could not hear the fraud claim at the present time because he had no order of referral. [Pa-725, 732, 739]. It is not clear why Master Dellow even heard the parties on June 4 if he had no order of referral, and why the matter was not heard before a Judge. Under Fla. R. Civ. P. 12.490(b)(1), "No matter shall be heard by a general master without an appropriate order of reference . . . ."

It is also unclear why he would consider an order regarding child support to be a final judgment. Moreover, Fla. R. Civ. P. 1.540 regarding relief from a final judgment states within that "This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court."

According to the Florida docket, no further order of referral to the general master issued after Judge Donner issued her order on June 2, 1991. [Da-358].

Mr. Schuyler's brief asserts that the June 4th hearing also set out a discovery schedule "relative to Mr. Schuyler's petition, seeking, among other things, a change in residential custody of the unemancipated children" to Mr. Schuyler and that the purpose of the July hearing would be to determine the custody issue. [Pb-22]. There is no support in the record for this assertion. On July 8, 1992, Mr. Schuyler noticed a hearing on a verified motion for contempt and sanctions for August 21, 1992 before General Master Dellow. [Pa-761]. Mr. Schuyler's appendix contains an "Emergency Verified Motion for Contempt and Sanctions" which is certified as being mailed to Mrs. Ashcraft on May 28, 1992, but which was not filed with the court until August 21, 1992. [Pa-49 to 50]. The Florida Docket Sheet verifies that no contempt motion was filed with the court in May or June of 1992, but such a motion was filed on August 21, 1992. [Da-357 to 358]. The motion requests custody of the children. [Pa-51]. There is no indication that Mrs. Ashcraft received such a motion in May or June.

According to Mr. Schuyler's brief, the parties appeared before Master Dellow on August 21, 1992, but the hearing was adjourned with the Master directing counsel to reach an amicable solution on the issues. [Pb-23]. In a letter to the Florida Bar, Ms. Gross notes that the Florida docket reflects that a further hearing was scheduled, but canceled, and no hearing was ever held. [D-3]. The plaintiff's appendix lists a "record of Florida proceedings on August 21, 1992," but the "record" consists of a form indicating that a court reporter and Mr. Schuyler and his attorney, and Mrs. Ashcraft's attorney were present, but no date is indicated on the form. [Pa-762]. In fact, the reporter and the parties are the same parties who were present at the June 4, 1991 hearing and there is nothing to verify that the record relates to any other hearing. [Pa-760]. Mr. Gordon later testified that no hearing occurred on August 21, 1992 or thereafter in 1992. [4T-2.72].

On November 10, 1992, Mr. Meltzer, Mrs. Ashcraft's current counsel, requested certified copies of the two orders signed by Judge Bloom in a letter stating that he was Mrs. Ashcraft's attorney in the matter. [Pa-763].

January 22, 1993

The Wife moved from California to New Jersey [without notifying Husband as required by this Court's order].

On January 23, 1993, Mrs. Ashcraft and the children temporarily moved to Essex County, New Jersey, pursuant to her husband's re-assignment as a member of the Coast Guard. [Pa-82]. After living in temporary housing, the family moved to permanent housing in Cape May, and Mrs. Ashcraft informed Mr. Schuyler of the address by telephone soon after the move and by certified mail on February 20, 1993. .

January 25, 1993

The Wife's New Jersey counsel filed a Notice Pursuant to UCCJA, For Change of Jurisdiction from Florida to New Jersey with this (Florida) Court.

On January 28, 1993, Mr. Meltzer filed the August 28, 1991 Florida order modifying the final judgment and the order directing payment through the central depository in Florida with the clerk of the Superior Court, Essex County and the case was assigned docket number FD-07-6876-93. [Db-9]. On January 28, 1993, Mr. Meltzer also noticed the Florida court, Gordon, and Gross, whom he acknowledged as counsel of record in Florida, that he had filed the orders with the New Jersey court and provided the relevant docket numbers, and stating that "[therefore] this matter is no longer under the jurisdiction of the Circuit Court of the Eleventh Judicial Circuit and all future proceedings regarding Custody and Child Support are come within the purview of the Superior Court of New Jersey." [Da-92].

March 12, 1993

Order Florida (Judge Donner) retaining "continuing jurisdiction" over these proceedings and denied the Wife's request to change jurisdiction from Florida to New Jersey.

On February 4, 1993, Meltzer had filed a substitution of attorney form, (also stating that the case was transferred to New Jersey), in the Florida court. [Pa-764].

The same day Mr. Schuyler filed with the Florida court a "Motion to Enforce Settlement Agreement and/or for Re-Hearing" which Gordon certified as mailed to Gloria Gross on February 2, 1993. [Pa-27 to 28]. The motion was never served on Mr. Meltzer. [Pa-84 to 85, 771]. Ms. Gross claimed she never received notification of any additional hearings after the summer of 1992. [D-4]. The petition claims that Gross had not responded to numerous settlement agreements Gordon had sent to her and requests the court "enforce the terms and conditions of the agreement of the parties" or set the matter down for a re-hearing. [Pa-28]. There is no written settlement agreement.

On February 16, 1993, Gordon and a New Jersey attorney had filed in the New Jersey court a Motion to Strike the Notice of Change of Jurisdiction, stating that there were "various motions currently pending in the Circuit Court of Dade County, Florida regarding the minor children of the parties." [Da-95 to 96]. On February 23, 1993, Mr. Schuyler filed with the Florida a motion court to strike the change of jurisdiction notice. [Pa-765]. It is not clear from the record whether Mrs. Ashcraft received notice of this Florida motion. Mr. Schuyler's brief asserts that the motion also sought to hold Mrs. Ashcraft in contempt and impose sanctions on her, although no such motion papers are provided in the record. [Pb-27]. The appendix page cited in Mr. Schuyler's brief offers no support for his assertion. [See Pa-765]. Mrs. Ashcraft's attorney discovered the existence of these motions when he received a March 1, 1993 notice of hearing referring to these motions, but he never received a copy of these papers or the supporting papers for the motions and the Florida court was so informed by letter. [Pa-84; Da-359; Pa-771].

The March 1, 1993 notice of hearing regarding the above matters was returnable before Master Dellow on March 30, 1993. [Pa-84; Pb-27]. Since, however, Essex County was scheduled to hear Mr. Schuyler's motion on March 19, 1993, [Pa-771], Mr. Schuyler applied on March 8th for a special hearing before Judge Donner on March 11th on the jurisdiction issue. [Pa-84; Pa-770; Pa-769]. He never supplied Mrs. Ashcraft with any documentation supporting the motion. [Pa-771]. Meltzer informed Judge Donner by letter and telephone that he had not been supplied with any supporting papers, and that he had a prior required court appearance which would render him unavailable on that date. [Pa-770, 771]. He also raised the issue of why a status conference to determine jurisdiction should be considered an emergent matter. [Pa-771]. The morning of the hearing Judge Donner's secretary left a message on Mr. Meltzer's answering machine that ".... Your schedule is not the Court's schedule. You will be sent an Order. You should be receiving it in the mail any time soon. . . ." [Pa-85]. Judge Donner proceeded with the hearing and issued an order on March 12th where she ordered that:

In accordance with Florida Case Law, to wit: Greenfield vs. Greenfield, 569 So. 2d 1029 (4th DCA 1992), the Final Judgment for Dissolution of Marraige [sic] entered on May 7, 1990 wherein the Court retained jurisdiction of this cause, and all applicable Florida Law, the Dade County Circuit Court has continuing jurisdiction over this matter and the Respondent's Motion to Transfer Jurisdiction to New Jersey is hereby DENIED.

[Da-97].

Mrs. Ashcraft (respondent in the order) had never filed a motion to transfer jurisdiction. The order does not acknowledge the existence of the modified order of August 28, 1991, automatically relinquishing jurisdiction after six months, nor does it explain the nature of the emergency requiring an immediate hearing. It does not address the court's knowledge that Mrs. Ashcraft never received the supporting papers. Judge Donner also ordered Mrs. Ashcraft to comply with all previously entered orders and warned her that a failure to comply could result in a change of residential custody. [Da-98].

March 19, 1993

Judge Hector DeSoto at a hearing in New Jersey acknowledges that there is no "emergent" application or jurisdiction in New Jersey, that he was "declining jurisdiction, and that Judge Donner advised him that there are pending proceedings in Florida."

On March 19, 1993, Judge Hector DeSoto of the Superior Court, Chancery Division - Family Part denied Mr. Schuyler's motion to strike the notice of jurisdiction. The court observed that there was "no purpose" in striking the notice, [1T-9]:

"it's a notice, basically to -- advising Florida of Defendant's new address, and where to mail the child support checks. That's really all it is," [1T-3].

Regarding jurisdiction, the court said:

"This Court has yet to rule on the jurisdictional question. . . .in that notice that you confer jurisdiction on New Jersey, that doesn't do it, quite frankly, but that's another issue. . . . I am striking that jur -- that jurisdictional statement, because I'm not -- I have not reached that issue."

[1T-9].

Mr. Meltzer apparently had not previously understood that his notice did not confer jurisdiction. [1T-5 to 9]. Judge DeSoto did not address the effect of registering the order in New Jersey for enforcement and modification purposes under the UCCJA. On March 22, 1993, Mr. Meltzer filed with the Family Part, Non-Dissolution Unit, a request for a hearing to reconsider Judge DeSoto's decision. . In response, the clerk issued a pre-printed form "Notice to Appear and Summons" to the parties, ordering them to appear on March 30, 1993 before Judge Booker "in answer to a complaint for custody." [Pa-74]. On March 30, 1993, the case was eventually heard by Judge Kenith Bloom.

April 1, 1993

Judge Kenith Bloom entered an Order in New Jersey assuming "emergency jurisdiction." [There was no emergency. It was merely an impermissible basis to claim jurisdiction].

Apparently both parties appeared before courts on March 30, 1993, Mrs. Ashcraft in New Jersey and Mr. Schuyler in Florida. [Pa-59; Db-14]. Mrs. Ashcraft provided the New Jersey court with a letter from Mr. Gordon dated March 17, 1993, stating that Mr. Schuyler wanted the children to be brought to the airport in Philadelphia on April 8, 1993, where he would pick them up and return with them to Florida for his spring break visitation. .

The order had not provided for this visitation and Mrs. Ashcraft had not consented to these arrangements. [Pa-289 to 290]. The attorney's certification to the court explained that, given the history of the case, Mrs. Ashcraft believed the children would "disappear" if Mr. Schuyler were permitted to remove them from the state. [G-P 12, 13]. She was concerned that, even if visitation occurred within the state, Mr. Schuyler would remove the children unless New Jersey took jurisdiction over custody. [G-P 13]. It was on this basis that Judge Kenith Bloom issued his order which clearly states the court's concern that the children would "disappear" if permitted to leave the state and he therefore limited visitation to within the State of New Jersey. [Da-101].

April 7, 1993

Order Florida (Judge Donner) ratifying and adopting the Report of the General Master dated April 2, 1993, wherein the Court retained jurisdiction concerning all matters presently before the Court.

After hearing argument from Mr. Schuyler alone, Master Dellow in Florida issued a report and recommendation on April 2, 1993 "pursuant to Petitioner's Motion to Strike Notice for Change of Jurisdiction, Motion to Enforce Settlement Agreement, and verified Motion for Contempt and Sanctions." [Pa-59]. Mrs. Ashcraft had never received copies of the supporting documents. [Pa-771]. Dellow's only factual findings were that Mrs. Ashcraft was "properly" notified of the hearing and failed to appear. [Pa-59]. He recommended that she appear before Judge Donner on April 12, 1993 and that her failure to appear on that date would result in a temporary change of custody of the children to Mr. Schuyler "and the issuance of a Writ of Bodily Attachment . . . ." [Pa-60]. His report stated that the court retained jurisdiction of all matters presently before it. [Pa-60]. On April 8 and April 10, Mrs. Ashcraft received various documents indicating that she would lose custody of her children if she did not appear before Judge Donner on April 12, 1993. [Pa-86].

April 14, 1993

Order Florida (Judge Donner) awarding temporary custody of the parties' children to the Husband [which perforce terminated his child support obligations].

Judge Donner held Mrs. Ashcraft in contempt of court and ordered "primary residential custody of the minor children . . . immediately and temporarily and [sic] transferred from the Respondent/Mary Schuyler Ashcraft to the Petitioner/Samuel N. Schuyler pending a hearing" in the Florida court. [Pa-63; Da 103].

April 16, 1993

Judge Kenith Bloom signs New Jersey Order to Show Cause assuming jurisdiction over the subject matter of custody, visitation and support of the parties' minor children and restraining and enjoining this (Florida) Court from Issuing any orders effecting the issues of custody, visitation, and support of the parties' minor children.

On April 16, 1993, Judge Kenith Bloom held a hearing in New Jersey, where both parties were represented. [2T]. Mrs. Ashcraft's attorney had again informed the court of her fears that the children would disappear. [2T-2.4 to 2.5]. At oral argument, the court concluded that the Florida order of August 28, 1991, permitting the defendant to move to California, reserved jurisdiction in Florida only for the six month period following the order, and then relinquished jurisdiction. [2T-3.8]. The Judge stated, "I, therefore, intend to retain jurisdiction of this matter," and he set out a hearing date to establish a visitation schedule. [2T-3.8]. But he explained:

I do not view this as a jurisdictional case. I view this substantially as a family in stress, and I'm paying immediate attention to it, for the best interest of the children.

[2T-3.8].

Judge Bloom signed an order to show cause (dated April 13, 1993) providing that:

THIS MATTER HAVING BEEN opened to the Court by Harvey R. Meltzer, Esq., Attorney for Mary Ashcraft, f/n/a Mary Schuyler (hereinafter referred to as "Mother"), and Terry J. Finklestein appearing for Samuel Ned Schuyler, and it appearing, upon a reading of the Certification presented in support hereof, that immediate, substantial and irreparable harm could befall the best interest and well being the the [sic] parties' minor children if they were forced to abide by the position improvidently taken by the Hon. Amy Steele Donner, Judge, Eleventh Judicial Circuit, Dade County, Florida, and for good cause shown;

IT IS ON THIS 13th. DAY OF APRIL, 1993:

ORDERED, that the Superior Court of New Jersey, Chancery Division, Family Part, be, and the same has hereby established that it has jurisdiction, pursuant to the Uniform Child Custody Jurisdiction Act, N.J.S.A. 2A:34-28, et. seq., and F.S.A. Sec. 61.1302, et. seq., (hereinafter referred to as "UCCJA"), over the issues of Custody, Visitation and Support of the parties' minor children;

ORDERED, that, pursuant to the provisions of UCCJA, to wit: N.J.S.A. 2A:34-31a.(3)(ii); F.S.A. Sec. 61.1308(1)(c)2., this Court has the authority to set this matter down, on an emergent basis, for a plenary hearing in order to establish the issues of Custody, Visitation and Support;

ORDERED, that since Samuel Ned Schuyler (hereinafter referred to as "Father"), by Lewis G. Gordon, Esq., and by Russell A. Shepherd, Esq., has made a General Appearance before this Court when they filed his Notice of Motion with the Superior Court of New Jersey, Chancery Division, Family Part, dated February 16, 1993, that this Court has acquired in personam jurisdiction over the Father;

ORDERED, that since the Superior Court of New Jersey, Chancery Division, Family Part, by way of the filing of a certified copy of the Order on Emergency Motion to Modify Final Judgment to Obtain Court Approval for Former Wife and Minor Children to Relocate Outside of Florida, and the Order Directing Payment Through the Central Depository, both executed by the Hon. Philip Bloom, C.C.J., on August 28, 1991, and issuing to same Docket No. FD-07-6876-93, on January 25, 1993; by way of a NOTICE to the Florida Court and Counsel, dated January 25, 1993; and by way of the Father responding to said NOTICE by way of a Motion to Strike within the twenty (20) day time period provided by in UCCJA (N.J.S.A. 2A:34-33 / F.S.A. Sec. 61.1312), has obtained jurisdiction over the subject matter of Custody, Visitation and Support of the parties' minor children, the Circuit Court for the Eleventh Judicial District, in and for Dade County, Florida, be and the same is hereby enjoined, as of January 25, 1993, from issuing any Orders affecting the issues of Custody, Visitation and Support of the parties' minor children;

ORDERED that the Orders of the Hon. Hector DeSoto, J.S.C. dated March 19, 1993, and the Hon. Kenith D. Bloom, J.S.C., dated April 1, 1993, be and are hereby continued to be effective as they pertain to the parties to this action;

ORDERED that the Father shall show cause before the Hon. Kenith D. Bloom, J.S.C., at the Essex County Court House, Newark, New Jersey, on the 10th day of May, 1993, at 11:00 ante meridiem, or as soon thereafter as Counsel can be heard, why an Order should not be entered directing that this Court retain permanent jurisdiction over the issues of Custody, Visitation and Support of the parties' minor children, and why this Court should not modify the Final Judgment, dated May 7, 1990, and the Modified Final Judgment, dated August 28, 1991, to be reflective of the facts presently before this Court;

ORDERED that since the Father is represented by Lewis G. Gordon, Esq., a Florida Attorney, and that Mr. Gordon secured the services of Mr. Shepherd, a Florida/New Jersey Attorney, a copy of this Order and a copy of the accompanying Certification be served upon Lewis G. Gordon, Esq., by Certified Mail, RRR, at 1414 Ponce de Leon Boulevard, Coral Gables, Florida, 33134; and by FAX to (305) 442-9668; and it is finally

ORDERED that any responsive pleadings shall be filed with the Court as provided by the Rules of Court of the State of New Jersey and served upon Harvey R. Meltzer, Esq., Counsel for Mother, at 570 W. Mt. Pleasant Avenue, Livingston, New Jersey, 07039, no later than five (5) days prior to the return date hereof.

ORDERED, that responding pleading must filed [sic] and served as aforesaid no later than 5 days prior to the return date of this order to show cause.

[Pa-77 to 80].

The return date was adjourned until June 2, 1993. [Pb-35 to 36]. May 28, 1993

Husband's New Jersey counsel files Motion to Vacate Judge Kenith Bloom's orders of April 1 and 16, 1993, which Judge Bloom ultimately denied almost two years later on February 6, 1995.

On May 28, 1993, Mr. Schuyler also filed a cross motion with the New Jersey court requesting an order "dismissing defendant's application for the New Jersey Court to assume jurisdiction of the subject matter of the custody of the children"; vacating its earlier orders, and affording full faith and credit to the Florida orders. [Da-110 to 112 (n.b. misnumbered pages].

Also on May 28, 1993, Judge Donner issued an "Order Clarifying Order on Report of General Master" in which she specifically retained jurisdiction. [Da-109]. Mrs. Ashcraft claims she received no notice of this order. [Db-15].

The hearings ordered by Judge Bloom on April 16, 1993 in New Jersey were held June 4th and June 8, 1993. [3T; 4T]. The only witness was Lewis Gordon, Mr. Schuyler's Florida attorney. It was during this hearing that Gordon informed the court he had amended the August 21, 1991 Florida order without notifying the defendant, [3T-16, 8 to 26]. In fact, she had never been sent the order itself. [3T-26].

Q : Now when did you notice the party of your intention to amend that judgment of -- that order of Judge Bloom?

A [Gordon]: I did not.

Q : Huh?

A [Gordon]: I did not.

Q : You never noticed the party?

A [Gordon]: No, I did not.

Q : Now, did you endeavor to find out who her attorney was at the time?

A [Gordon]: I don't believe she was represented at that time. In fact, I'm certain she was not.

[3T-16 to 17].

The court also discovered that Gordon had not followed the Florida court's direction of August 28, 1991 and had not mailed notification of any of the petitions to the address listed in the order. [3T-37 to 38]. Gordon admitted that they were mailed instead to an address he believed to be Mrs. Ashcraft's place of employment and that the notice of the February 25, 1992 hearing was not personally served upon Mrs. Ashcraft until March 17, 1992. [3T-38, 43]. *fn18 Gordon continued his testimony on June 8, 1993, primarily amplifying his earlier remarks. [4T]. The information concerning Mr. Gordon's testimony regarding the lack of notice to Mrs. Ashcraft is entirely absent from Mr. Schuyler's brief before this court. [See Pb-38 where counsel merely indicates that Mr. Gordon testified.] The court also observed during the hearing that Mr. Schuyler was not paying child support at this time, [4T-2.114], and according to Mrs. Ashcraft's brief, at that point he had not paid support for over two years. [Db-21].

August 30, 1993

Order Florida (Judge Donner) again granting Husband immediate, temporary residential custody of the children and retaining jurisdiction concerning all matters presently before the Court.

On June 26, 1993, Judge Donner had stayed for sixty days her order transferring custody. [Pa-177]. No motion papers were served on Mrs. Ashcraft prior to the new order's signing. [5T-9]. Mr. Schuyler then filed an emergent order to show cause in New Jersey on July 1, 1993, during Judge Bloom's vacation, [6T-5], requesting six weeks of summer vacation with the children in Florida and an additional two weeks for time he claims he was denied. [5T-3]. After summarizing the facts of the Florida proceedings which he stated indicated "a strong possibility of legal fraud," and after voicing "grave concerns whether the children will be returned," on July 15, 1993, Judge Kenith Bloom denied the request. [5T-16 to 20, 25].

Thereafter, on August 30, 1993, according to Judge Feder's order, Judge Donner again granted Mr. Schuyler custody. Judge Feder's chronology omits any other information until April 29, 1994. However, on September 23, 1993, the New Jersey court held a hearing on an order to show cause and motion by Mrs. Ashcraft to enforce child support. [6T-2]. Although Mr. Schuyler was in arrears $4,518.00, upon notification by Mr. Gordon, the Florida central depository, on June 28, 1993, stopped assessing Mr. Schuyler for the monthly payments. [6T-12, 14]. The Judge ordered Mr. Schuyler to pay the arrears by November 1, 1993. [6T-14]. The court reiterated its jurisdiction over the case based on its April 1, 1993 order and the notice, which the court stated was "an appropriate pleading under the U.C.C.J.[A.] . . . ." [6T-24].

On January 21, 1994, Judge Bloom informed Mr. Schuyler that he was willing to give full visitation rights both in and outside of New Jersey if Mr. Schuyler could guarantee that the visitation would not interfere with Mrs. Ashcraft's custody. [7T-3.2 to 3.3]. To that end, he proposed that Mr. Schuyler admit jurisdiction in the State of New Jersey and obtain an order from Florida waiving jurisdiction. [7T-3.3]. Upon Mr. Schuyler's admission of New Jersey jurisdiction, the court would then establish full visitation and review the financial information because the mother was still not receiving child support. [7T-3.5]. Mr. Schuyler refused the Judge's suggestion. [8T-4.27].

Mr. Schuyler filed a petition in Florida on December 13, 1993 to amend the Central Depository records. [Pa-288]. The petition was received by Mrs. Ashcraft on January 7, 1994 with no return date indicated. [Pa-288]. On December 16, 1993, Mr. Schuyler had sent a letter to the Central Depository, without notice to Mrs. Ashcraft, requesting that his support obligation be reduced by $2,368.33 to compensate him for the trip he made to New Jersey to appear before Judge Bloom in the summer of 1993, for a vacation he took to Lake Tahoe, because he also saw the children in California, and for lost expenses for the airline ticket to pick-up the children in Philadelphia (which he had purchased without making arrangements with Mrs. Ashcraft). [Pa-289 to 290].

After receiving notification of Mr. Schuyler's actions, Judge Bloom held a hearing on February, 10, 1994. [Pa-277; 8T]. The Judge noted that when he asked for the production of certified documents from Florida, he received "a selective set." [8T-4.7]. In addition, Mr. Schuyler was asking for enforcement of an agreement which he claimed was reached between Ms. Gross and Mr. Gordon, but which he had not presented to Judge Bloom when requested, either in written form or as an agreement on the record. [8T-4.8 to 4.16]. Nor had Mr. Schuyler supplied any copy of a bankruptcy judgment to support his claim. [8T-4.2]. The Judge noted numerous discrepancies and inconsistencies in the financial affidavit Mr. Schuyler filed in Florida in 1992, including his purchase of a house and establishment of a business when he claimed he had no money. [8T-4.25, 4.21 to 4.27]. The court asserted that "all I've taken [is] protective jurisdiction of these children, until I get a clarification." [8T-4.40]. Mr. Schuyler asserted that he had not paid any support money because he did not have an order to that effect. [8T-4.42].

The Judge issued an order authorizing the parties to record all telephone conversations between themselves or with the children nunc pro tunc to June 1, 1993; fixing the hours for calls to the children, and fixing the amount of child support arrears at $8,053.00 which the court also reduced to a judgment against Mr. Schuyler. [Pa-295 to 296].

The Judge repeatedly insisted that, based on his review of every paper in the file, there were no matters pending in Florida after June 2, 1992. [8T-4.72, 4.82 to 4.83]. In his view, Judge Donner's order of June 2, 1992, finalizing the General Master's recommendations changed the status of the outstanding issues from "pending" to "final." [8T-4.83].

At a hearing on March 2, 1994, Judge Bloom reiterated his finding that the children were in danger in the state of Florida, as established by the August 28, 1991 order, and his determination that the danger was continuing, in part because of Mr. Schuyler's misrepresentations to the Florida courts. [9T-5.19]. Mr. Schuyler refused to produce any financial documents requested by the court. [9T-5.7]. Mr. Schuyler's attorney asserted that his client was being hung up on repeatedly when he called his children. However, Mrs. Ashcraft provided the court with witness certifications that Mr. Schuyler was in fact making repeated calls and disconnecting, while leaving messages on the answering machine threatening Mrs. Ashcraft for "hanging up" on him, apparently in order to create "evidence" of misconduct on the part of Mrs. Ashcraft. [9T-5.12, 5.15 to 5.16]. In his order issued that day, the Judge found that "immediate, substantial, and irreparable harm would befall the parties' minor children" if removed from New Jersey by Mr. Schuyler, and he enjoined Mr. Schuyler from removing the children from the New Jersey at risk of arrest, and from making any further applications in Florida regarding custody, visitation or support. [Pa-298 to 299].

In February 1994, Judge Bloom conferred with Judge Feder, Presiding Judge of the Family Division in Florida:

We had lengthy Discussions with respect to Judge Philip Bloom's order, Judge Donner's order, the failure of notice to Mary Schuyler, [Mrs. Ashcraft], and the best interest of the children. My recollection is that I had two conferences with him at that time.

Judge Feder indicated that he would speak to Judge Schwartz about relinquishing jurisdiction. Judge Schwartz was temporarily assigned to the Family Division since Judge Donner was no longer in the Family Division.

.

On March 4, 1994, Judge Lawrence A. Schwartz, acting circuit Judge in Florida, relinquished jurisdiction after

having reviewed the file and determined that the Court has previously permitted the removal of the children and the children having been removed from Florida, and having permanently resided outside of Florida for quite some time and that the New Jersey Superior Court, Essex County, having found it has jurisdiction and is in a better position to determine the status of the children due to access to teachers, doctors, neighbors and other persons with more up-to-date knowledge of the children . . . .

[Da-113 to 114].

Copies of the order were sent to Judge Kenith Bloom, and Richard Feder, Circuit Court Administrative Judge, Family Division, 11th Judicial Circuit, Lewis Gordon and Mary Ashcraft. [Da-114]. By fax letter dated March 7, 1993, Mr. Schuyler's Florida attorney, Lewis Gordon, wrote to Judge Donner stating that "someone" had contacted Judge Schwartz and Judge Richard Y. Feder and "mislead [sic] them to believe that jurisdiction does not belong in Florida." [Da-115]. Judge Bloom thereafter "received a call from Judge Feder who indicated that he was vacating the order without any reasons." . Judge Schwartz rescinded his earlier order. [Da-116].

April 29, 1994

New Jersey Judge, Kenith Bloom, renders written Order exercising jurisdiction over custody, visitation and child support matters and denying the Husband any contact and visitation with the children.

On April 6, 1994, Mrs. Ashcraft had received a phone call from Mr. Schuyler at her office although she had never given Mr. Schuyler that number because he had harassed her at previous jobs. [10T-6.5]. She testified that Mr. Schuyler "was being very sarcastic and thought it was very funny that he found out where I worked, and told me that he could find me anyplace I was ever at . . . ." [10T-6.6]. A co-worker certified that she saw Mrs. Ashcraft on the phone appearing very upset and picked up the line at Mrs. Ashcraft's direction. [Da-117; 10T-6.9 to 6.10]. The co-worker heard Mr. Schuyler say he was going to kill Mrs. Ashcraft; she would never be able to live her own life; he would never leave her alone and would see that she never had any peace; and he told her she "had better always be on her guard and watch her back." [Da-117]. Mr. Schuyler also threatened to kill Mrs. Ashcraft's counsel and his wife, and to take the children. [10T-6.6]. Mrs. Ashcraft filed a criminal complaint the same day. [Da-119 to 120]. After the incident, she continued to receive "at least 20 hangups per day" at her job. [10T-6.21 to 6.22].

On April 27, 1994, Judge Raymond Batton of the Family Part of the Chancery Division in Cape May County issued a final restraining order under the Prevention of Domestic Violence Act prohibiting Mr. Schuyler from contacting Mrs. Ashcraft or the children, or possessing weapons, which the court ordered seized from his home (in Florida). [Da-121 to 122]. The order "remains in effect until further Order of the Superior Court, Chancery Division, Family Part" and cannot be changed without both parties appearing before that court and obtaining a written order. [Da-123]. Visitation was also suspended pending further order of the court. [Da-122].

Upon leaving the courthouse on April 27, 1994, after receiving Judge Batton's order, Mrs. Ashcraft was assaulted two blocks away. [10T-6.14]. She was sitting in her car reviewing the court papers when a man reached in, ripping her clothes, pulled her by the hair and told her that she had "better drop the charges, this is [her] last warning, and not to get out of [her] car here, that he better see [her] drive away." [10T6.14 to 6.15] She immediately reported the incident to the police and applied the same day for emergent relief. [Da-124 to 126; 10T-6.16 to 6.17].

On April 28, 1994, Mrs. Ashcraft appeared before Judge Bloom on a request for emergent relief, seeking a permanent restraining order. [10T]. Mr. Schuyler was represented at the hearing by his current attorneys. [10T-6.3]. Mrs. Ashcraft described what happened the previous day and said she took Mr. Schuyler's threats very seriously based on her knowledge of Mr. Schuyler and his other incidents of violence. According to Mrs. Ashcraft, his abuse of her during their marriage which occurred in front of their son, resulted in "two felony counts against him." [10T-6.6, 6.18]. She had been followed in New Jersey in the past, and, one day she had returned home and after seeing someone going over her back fence, she entered her home with a security guard and discovered the word "dead" written in ketchup on her sliding glass door. [10T-6.7 to 6.8]. Mr. Schuyler told her he knew about car bombs, leaving her afraid each time she turned on her car, and he told her he was going to kill her with a gun she had bought him as a gift. [10T-6.19]. She also related that Mr. Schuyler bragged about his membership in the Klu Klux Klan and how he had arranged for the members to beat a man "nearly to death" after he had a falling out with him. [10T-6.18 to 6.19]. Through his attorney, who was present, Mr. Schuyler denied making the phone calls or any knowledge of Mrs. Ashcraft's work number. [10T-6.28].

The Judge invoked emergency jurisdiction over the children under the U.C.C.J.A. [10T-6.25]. On the basis of the testimony, he barred Mr. Schuyler from contacting Mrs. Ashcraft's employer and her husband's employer, the U.S. Coast Guard (Mr. Schuyler had allegedly harassed Mr. Ashcraft on his Coast Guard vessel, [10T-6.29 to 6.30]); barred him from the children's school or baby sitter's residence; and terminated all contact between Mr. Schuyler and Mrs. Ashcraft, her children and her new husband. [Da-167]. Mrs. Ashcraft was permitted to change and unlist her telephone number and residence without providing the new information to Mr. Schuyler. [Da-168]. Judgment was entered for the total amount of child support arrears which now stood at $9,568.00 and Mr. Schuyler was ordered to appear before the court. [Da-168]. Mr. Schuyler filed a notice of appeal from the order on June 9 or 10, 1994. [Pb-8; Pa-305 to 307]. This notice was later changed to a notice for leave to appeal on the basis that the trial court's order was interlocutory. [Pa-350 to 389]. (The motion was denied and the appeal was dismissed on August 19, 1994 by Judge D'Annunzio and Levy without opinion. [Da-387].)

June 9, 1994

Order Florida (Judge Barad) adopting and approving the recommendations of the Hearing Officer (William Dellow) providing Husband with a credit towards child support arrears and reserving and retaining jurisdiction in this matter.

Neither party has ever informed this court of the existence of this order or of any circumstances surrounding it, including whether an order of referral issued to Master Dellow, and whether Mrs. Ashcraft received notice of the hearing.

On June 30, 1994, Judge Kenith Bloom sua sponte appointed James P. Yudes, Esq. as guardian ad litem for the children with the powers granted by R. 5:8(A) and (B). [Pa-312 to 314].

August 11, 1994

Order Florida (Judge Feder) acknowledging that this Court has routinely "asserted jurisdiction continuing in Florida pursuant to decisions of the Appellate and Supreme Court" and that "the Florida Judge and New Jersey Judge (DeSoto) conferred by phone and the New Jersey Judge "declined jurisdiction", that thereafter another New Jersey Judge, Kenith Bloom assumed "emergency jurisdiction," that Florida "is in fact the Home State, does have exclusive jurisdiction over Custody, Visitations and Support of the Minor Children of the parties until a hearing can be held establishing otherwise" and that "all matters are stayed pending the resolution by the New Jersey Superior Court, Appellate Division of the pending appeal or leave to appeal."

On July 29, 1994, Judge Richard Y. Feder of the Florida Circuit Court, Family Division, ordered the parties to appear before him on August 15, 1994, to determine the issue of Florida's jurisdiction. [Da-715]. The order provided that the appearances would not "confer any jurisdiction over the person of any party which does not already exist." [Da-715]. The children's counsel was not notified of the hearing. [Da-716].

During a telephone conference, Judge Feder heard argument from both parties' counsel, but took no testimony from Mr. Schuyler or Mrs. Ashcraft, and did not hear from the children's counsel. [Db-26]. He signed the following order on August 11, 1994:

ORDER OF JURISDICTION

The above matter came on to be heard on the Court's own Motion For Status Conference, and the Former Husband being in attendance with local counsel, Lewis G. Gordon, the Former Wife being in attendance by phone in her attorney's office with her attorney, Harvey T. Meltzer, and the Former Husband's New Jersey attorney Ronald Abramson also being on the conference call, and the Court having received voluminous Memoranda and attachments reciting the history of this case, having heard each and every of the attorneys present argument to the Court as to the issue of jurisdiction, and the Court having reviewed the four volumes of the file, and being aware that the presence of the former wife and counsel did not constitute an appearance (by express Order of this Court) and other good and sufficient reasons appearing, the Court finds:

1) The matter originally arose in Florida which had jurisdiction over the marriage, the parties and the children, resulting in Final Judgment. Thereafter, there were post-judgment hearings in Florida, including an Order of Judge Philip Bloom permitting the former wife to move out of Florida. She moved to California and then to New Jersey in January, 1993.

2) Counsel filed a request for New Jersey to assume jurisdiction over the issues of "custody, visitation and support" and filed in Florida a "Notice Pursuant to UCCJA, for Change of Jurisdiction from Florida to New Jersey." That pleading was never granted by Florida; on the contrary, the Florida Court denied such relief and asserted jurisdiction continuing in Florida pursuant to decisions of the Appellate and Supreme Court.

3) As required by the UCCJA, the Florida Judge and New Jersey Judge (De Soto) conferred by phone and the New Jersey Judge "declined jurisdiction." Thereafter, another New Jersey Judge, Hon. Kenith Bloom, signed an Order on April 1, 1993 assuming emergent jurisdiction based on mailed notice to Florida counsel, and on April 13, 1993, based on a "position improvidently taken by the Hon. Amy Steele Donner, Judge, Eleventh Judicial Circuit, Dade County, Florida," ordered that the Superior Court of New Jersey has jurisdiction over the "issues of Custody, Visitation and Support of the parties' minor children" and further ordered that the Florida Court "be and the same is hereby enjoined, as of January 25, 1993", from "issuing any Orders affecting the issues of Custody, Visitation and Support of the parties' minor children."

4) Counsel for the Former Wife alleges that various Orders were entered in Florida without due process. Without commenting on the procedures followed in New Jersey concerning notice and due process to the former husband who never lived in New Jersey, nor even commenting on whether continuing jurisdiction existed over the Former Wife in Florida, such issues as jurisdiction over the person (unlike subject-matter) should be decided by the tribunal in question, at least initially. The undersigned Judge, as a Resident of New Jersey both pre and post the Vanderbiltian era, and as a New Jersey Attorney and Counsellor-At-Law before moving to Florida, Due Process is as alive and well in Florida, as it is in New Jersey. No State's Judicial system should be held up to ridicule or as a paragon of Justice, regardless of the geographic location.

Based on the foregoing, it is ORDERED AND ADJUDGED

THAT Florida is in fact the Home State, does have exclusive jurisdiction over the Custody, Visitation and Support of the Minor children of the parties until a hearing can be held establishing otherwise.

THAT all matters are stayed pending the resolution by the New Jersey Superior Court, Appellate Division, of the pending Appeal or Leave to Appeal.

THAT all issues concerning Post Judgment matters where lack of Due Process over the former wife have been properly raised will be re-examined by this Court on proper motions being filed after ruling by the New Jersey Appellate Division or Supreme Court, and independently thereof.

DONE AND ORDERED this 11th day of August, 1994, at Miami, Dade County, Florida.

[Da-711 to Da-714].

August 31, 1994

Order Florida (Judge Barad) adopting and approving the General Master's Report of August 8, 1994 providing that the State of Florida shall continue to retain jurisdiction over this matter.

Judge Barad's order was apparently issued in direct contravention of Judge Feder's August 11, 1994 ruling that all matters before the Florida court were stayed pending resolution by this court. However, once again, neither party has ever provided information to this court concerning the existence of this order or the circumstances surrounding it. It appeared for the first time in the chronology provided by Mr. Schuyler's attorney in Florida and adopted by Judge Feder.

On September 1, 1994, Judge Kenith Bloom ordered the parties to provide complete updated Case Information Statements, financial data, including attorney retainer agreements, and court files to children's counsel by August 25, 1994 [sic]. [Pa-422 to 425]. Children's counsel was awarded $5,000.00 in attorney's fees to be paid by Mr. Schuyler within 10 days of the order. [Pa-425]. The order provided that a warrant would issue for Mr. Schuyler's arrest if Mr. Schuyler failed to produce the documents. [Pa-424].

On October 21, 1994, children's counsel applied to the court to issue a warrant for Mr. Schuyler's arrest for failing to comply with the September 1st order. [Pa-426 to 432]. The children's counsel certified that Mrs. Ashcraft had complied with the request for a Case Information Statement and was attempting to comply with the other orders. [Pa-431].

February 6, 1995

Judge Kenith Bloom finally rules on (but denies) Husband's Motion to Vacate Judge Bloom's prior Orders of April 1 and 16, 1993.

On November 2, 1994, Mrs. Ashcraft had filed a motion to reduce Mr. Schuyler's child support arrearages of $13,103.00 to a judgment, and to hold Mr. Schuyler in contempt and order his arrest for failing to comply with previous court orders. [Pa-433 to 440].

On November 4, 1994, Judge Feder issued two orders of bodily attachment for the children. [11T-38 to 39].

Mr. Schuyler had filed a cross-motion on November 10, 1994 directed to Judge Philip M. Freedman, in addition to Judge Bloom, requesting the recusal of Judge Kenith Bloom and the substitution of Judge Freedman; stay of enforcement of all orders rendered by Judge Kenith Bloom; an order compelling a final decision on the jurisdiction issue; immediate visitation "scheduled by and under the direct control of" the Florida Circuit Court; the termination of court-appointed counsel for the children; and an order compelling Mrs. Ashcraft to pay all counsel fees associated with the motion. [Pa-442 to 443].

In Mr. Abramson's certification attached to the motion, he represented to the court that Mrs. Ashcraft had received notice of each Florida hearing. [Pa-447 to 449]. The certification completely omits the testimony, in Mr. Abramson's presence, in which Mr. Gordon admitted that, on more than one occasion, such notice was lacking or given improperly and late. [Pa-466]. The certification also asserts that Mr. Schuyler was "wrongfully deprived" of contact with his children by Judge Bloom's April 29, 1993 invoking "alleged 'emergency jurisdiction' . . . despite the fact that there was never any evidence asserted of plaintiff posing a threat to the children." [Pa-474]. Mr. Abramson omits all mention of Mr. Schuyler's threats to remove the children and kill Mrs. Ashcraft, and the circumstances of her assault.

Judge Bloom held a hearing on the parties' motions on January 13, 1995. [11T]. According to Judge Bloom, "two critical issues" in the case were "the credibility of the parties and the best interest of the children . . . ." [11T-11]. He noted that Mr. Schuyler claimed he had no money to pay child support, yet he had a business and a home in Florida, and was remarried with a new child. [11T-14]. He also noted that Mr. Abramson's papers incorrectly stated that a hearing was held in New Jersey whereas in reality it was aborted because Mr. Schuyler refused to participate. [11T-24]. The Judge disputed on the record the Florida court's reliance on Greenfield v. Greenfield, 569 So. 2d 1029 (Fla. Dist. Ct. App. 1992), and listed numerous distinguishing facts. [11T-16 to 20]. Children's counsel informed the court that Mr. Schuyler had made no effort to comply with the court's order to assist the children's guardian. [11T-20 to 22]. The guardian requested a psychological evaluation of the parties. [11T-23].

The court's resulting February 6, 1995 order issued a bench warrant for Mr. Schuyler's arrest for failure to comply with the court's September 1, 1994 order; ordered Mr. Abramson to provide a certification as to the amounts billed and payments received by his firm to be submitted within 15 days of the order; awarded children's counsel an additional $5,000.00 in counsel fees; awarded Mrs. Ashcraft's counsel $50,000 in fees; and entered a judgment against Mr. Schuyler for $14,113.00 in unpaid child support. [Da-378]. In addition, the court denied Mr. Schuyler's recusal motion, and found:

The State of New Jersey has absolute jurisdiction over the two minor children as a result of the testimony which was elicited at the time of the hearing in this matter which took place on June 4, 1993 and June 8, 1993. This Court hereby determines that the State of Florida lost jurisdiction under the Order of the Honorable Philip Bloom entered August 28, 1991. The subsequent Florida Order entered February 4, 1992 is null and void as a result of its violation of the constitutional rights of the defendant. This Order shall constitute a final Order as to the issue of jurisdiction. [Da-379].

The order also appointed Dr. Paul Syracuse to conduct psychological evaluations of the children and the parties. [Da-381].

On March 14 or 15, 1995, Mr. Schuyler filed a notice of appeal from the portion of the February 6th order which was final as to the jurisdiction issue. [Pb-11; Pa-680 to 683]. Mr. Schuyler asserted that the appeal would dispose of all issues as to all parties. [Da-682].

On April 28, 1995, Judge Bloom issued a bench order, later memorialized in a written order on June 9, 1995, denying the guardian ad litem 's application to hold Mr. Schuyler's New Jersey counsel, Ronald Abramson, in contempt for failing to comply with the court's February 6, 1995 order. [Da-383]. The court acknowledged Mr. Abramson's representation that Mr. Schuyler's family was paying his fees and found that "this litigation is being churned by [Mr. Schuyler's] family on behalf of the plaintiff." [Da-385]. The court ordered Mr. Abramson to produce copies of the payment instruments by May 30, 1995. [Da-385].

Based on the fact that he thus far had paid $30,000 in counsel fees to Mr. Abramson, the court found that Mr. Schuyler was secreting assets. [Da-386]. Mr. Schuyler was ordered to comply with all orders by April 28, 1995 or risk having all of his pleadings dismissed. [Da-386]. Furthermore, if Mr. Schuyler did not pay the court-ordered psychologist within 30 days of April 28, 1995, the court would entertain a motion to transfer sole custody of the children to Mrs. Ashcraft. [Da-386].

On July 29, 1995, Mrs. Ashcraft was arrested pursuant to an extradition order issued by Florida. On May 5, 1995, a Florida investigator had filed an affidavit before Dade County Circuit Judge Stanford Blake representing that Mr. Schuyler (whom it refers to as "victim") had been given "primary residential custody" and that defendant currently maintained the children outside of Florida and denied Mr. Schuyler access. [Da 747 to 750]. The affidavit related as the "facts" of the case only the circumstances and decisions of the Florida orders (including the amended order), and Judge Donner's order transferring custody to Mr. Schuyler, but omitted the portion of Judge Feder's order staying all previous orders until the decision of the Appellate Division. [Da-747 to 750]. The affidavit contains no references to the New Jersey proceedings. It asserts that "defendant violated the custody agreement" when she moved to New Jersey; Mr. Schuyler has not seen his children since 1992; and Mrs. Ashcraft repeatedly "prevented the victim from exercising his visitation rights." [Da-748 to 749]. Therefore, according to the facts as related in the affidavit, Mr. Schuyler rightfully possessed custody of the children and defendant was unlawfully keeping them outside of the state. The affidavit contained Mrs. Ashcraft's full address in New Jersey. [Da-750].

Mrs. Ashcraft was charged with "unlawfully Removing or concealing a child contrary to court order" in violation of Florida statute § 787.04 and an warrant was issued for her arrest. [Da-746, 751]. Mr. Schuyler signed an affidavit supplying Mrs. Ashcraft's photograph for the purpose of identification. [Da-751]. A "review [of] the evidence" by an investigator with the State Attorney's office "yielded facts" which once again related only the Florida orders and findings of General Master Dellow. It omitted Judge Feder's stay of the custody transfer, and accused Mrs. Ashcraft of interfering with Mr. Schuyler's visitation, refusing service of process, and denying Mr. Schuyler access to his children since summer of 1992. [Da-752 to 759]. On the basis of the affidavit, provided in support of a governor's warrant for extradition, a Circuit Court Judge of the 11th District in Florida found "probable cause" to believe Mrs. Ashcraft had unlawfully removed and concealed the children, and therefore should be extradited to Florida. [Da-759].

On June 7, 1995, William Schurr, an Assistant State Attorney in Dade County, applied to Governor Lawton Chiles of Florida for Mrs. Ashcraft's extradition and certified that he believed he had "within [his] reach and will be able to produce upon the trial, evidence to secure a conviction" and that "this proceeding is not instituted to enforce a private claim for any private ends whatsoever, but solely in furtherance of public Justice." [Da-743 to 744].

Governor Chiles of Florida signed extradition papers on June 28, 1995, [Da-742], and Governor Whitman of New Jersey issued a warrant for Mrs. Ashcraft's arrest and extradition July 20, 1995. [Da-741].

On July 29, 1995, Mrs. Ashcraft was placed in handcuffs and arrested in front of her children. [Da-681, 688; Da-762]. She was released to her husband on bail and ordered to appear before Judge Carmen Alvarez in Cape May County, New Jersey on July 31, 1995. [Da-762].

At the hearing before Judge Alvarez, the New Jersey prosecutor stated:

In the course of all this -- and I -frankly, I'll even place this on the record my feeling about this has become so strong during the course of learning about this from all the people involved in it. Apparently, a -- an attempt was made by the natural father in the State of Florida to conduct an end run around the litigation taking place in Essex County and now under appeal through the District Attorney's Office in Dade County, Florida, based upon information provided there that may or may not be -- and I suspect may not be -- complete from their perspective.

[Da-629].

The New Jersey prosecutor was concerned that the authorities in Florida would "attempt[] to do the same thing through either federal or other state avenues" given that Mrs. Ashcraft was free on bail on the current governor's warrant. [Da-634]. When he had informed Mr. Schurr, the Florida prosecutor, about New Jersey's concerns regarding the governor's warrant and its incomplete factual basis, Mr. Schurr indicated that he hoped Mrs. Ashcraft's counsel would contact him to come to an agreement or he might alternatively seek to proceed under federal law. [Da-633 to 634]. Judge Alvarez observed that "this reads like some of the old Family Court litigation that led to the adoption of the Uniform Child Jurisdiction and Custody Act. Because this kind of thing just really hasn't happened since the 40's and the 50's." [Da-645]. Mrs. Ashcraft's counsel informed the Judge that a similar writ of bodily attachment existed for the children. [Da-648]. He was concerned that the children would be subject to the same actions. However, there was nothing Judge Alvarez could do to restrain the criminal system from acting on a governor's later warrant. [Da-651]. The New Jersey Governor's office was expected to withdraw the warrant, but the Judge scheduled a time for a more comprehensive hearing to be held if necessary. [Da-646, 658].

On August 1, 1995, Judge Bloom held a hearing on the events of the previous week. Mr. Abramson informed the court that he knew Mr. Schuyler had been communicating with the Miami District Attorney's Office, but he believed the matter to be one of attorney-client privilege. [12T-2 to 3]. The Judge stated that, in light of the fraud perpetrated on the executive branch in New Jersey, the privilege did not apply and he was clearly disturbed that Mr. Abramson had withheld the information. [12T-2 to 3]. As the Judge noted, "Huge fees are being paid by the father with regard to this case, but not one dime for food for the children." [12T-30]. As a result of the hearing, on August 17, 1995, Judge Bloom issued a temporary restraining order enjoining Mr. Schuyler from pursuing this case in any other proceeding until the Appellate Division rendered its opinion. *fn19

After being notified by the Clerk of the Appellate Division that he might not be entitled to an appeal as of right due to the interlocutory nature of the order, Mr. Schuyler filed a motion for leave to appeal which was granted on August 2, 1995. [Pa-684; Spa-12].

On December 13, 1995, Judge Alvarez conducted a habeas corpus hearing, which also was observed by an attorney for Mr. Schuyler. [13T-2 to 3]. Prior to the hearing, the State and Mr. Meltzer had stipulated that the Florida and New Jersey warrants were facially valid; Mrs. Ashcraft was not a fugitive from the State of Florida and, as such, her extradition by New Jersey was discretionary; the Florida prosecution was based on Judge Shapiro's February 28, 1992 and subsequent orders; Judge Shapiro's order established in personam jurisdiction based on Mr. Gordon's representations that Mrs. Ashcraft was evading process; those representations had been determined by the Florida Supreme Court's Grievance Committee to be knowingly false; the case has been the subject of parallel litigation in Florida and New Jersey; and that neither the Florida nor New Jersey governor's offices were aware of the false representations or the existence of the New Jersey litigation when they granted extradition. [13T-4 to 8; Dsa-18 (copy of actual stipulations)].

Mr. Meltzer informed the court that he had requested discovery concerning any support documentation from Mr. Schurr, Assistant State Attorney in Florida, but had received nothing. [13T-11 to 12]. The State had left messages inviting Mr. Schurr to participate in the proceedings before Judge Alvarez, but had received no reply. [13T-14]. The Judge granted the writ of habeas corpus and also attached the stipulations, as suggested by the State. [13T-10, 15; Dsa-19]. The State agreed to provide copies of the writ to the Dade County District Attorney's office. [13T-16]. *fn20

On January 5, 1996, this court temporarily remanded this matter to the trial court to request that Judge Bloom provide the court with the substance of any conversations he had had with the Florida court in attempting to resolve the jurisdictional dispute, and to permit Judge Bloom to initiate telephone conversations with Judge Feder in Florida to attempt to resolve the dispute once again. [Dra-2]. Judge Bloom responded to the court's direction by letter on January 25, 1996. [Dra-4 to 6]. On January 29, 1996, Judge Feder relinquished jurisdiction:

ORDER ON JURISDICTION

THIS COURT having reviewed the file, being aware of the differences between this Court's Orders and that of New Jersey over jurisdiction and both the New Jersey Judge and this Court agreeing that such jurisdictional disputes are unseemly inimical to the true ends of Justice and antagonistic to the best interests of both the children and the parties, this Court and the new Jersey Court instituted telephonic communications under the aegis of the U.C.C.C.J.A. to try and reach a mutually satisfactory agreement.

The Court is aware that the children have been living in New Jersey for over two (2) years and that Court is better equipped at this date to evaluate and handle all parts of this case.

Therefore, it is ORDERED AND ADJUDGED that this Court cedes its jurisdiction in the within matter to the State of New Jersey.

DONE AND ORDERED at Miami, Dade County, Florida, this 29 day of January, 1996.

[Dra-7].

In response, this court dismissed the appeal on February 9, 1996. [Dra-8].

On February 8, 1996, Mr. Schuyler moved for a rehearing of Judge Feder's order on the basis that (1) he had not been given an opportunity to be heard; (2) the order was without factual or legal justification and (3) the order was contrary to the provisions of the UCCJA and the PKPA [the Parental Kidnapping Prevention Act]. [Dra-20]. Mr. Schuyler's Florida counsel noticed a hearing before Judge Feder on the issue for April 1, 1996. [Dra-22]. Prior to the hearing, neither Mrs. Ashcraft nor her counsel ever received from the Florida attorney the memorandum submitted to Judge Feder in support of the motion. Mr. Schuyler's New Jersey counsel provided Mr. Meltzer with the memorandum three weeks after the order was signed. Apparently there had been an unsuccessful attempt to serve defendant by Federal Express just three days prior to the hearing.

This court permitted the case to be restored to the trial court upon application of either party, [Dra-30], and on May 9, 1996, granted plaintiff's motion to restore the case. [Dra-38].

KESTIN, J.A.D., Concurring.

Because of Judge Dreier's prodigious effort in developing a detailed analysis of the sordid procedural history of this case, I am now persuaded that an adequate basis existed upon which a New Jersey trial court could validly assert subject matter jurisdiction over the custody and visitation issues. This is not to minimize defendant's primary responsibility to proceed by way of appeal in Florida to challenge any order of a Florida court by which she felt aggrieved. There was, however, an independent factual basis for the exercise of subject matter jurisdiction by our trial court, as Judge Dreier has so capably demonstrated.

Between the time the Florida trial court expressly established the terms governing its relinquishment of jurisdiction (the expiration of six months after the entry of its August 28, 1991 order) and the date of New Jersey's exercise of subject matter jurisdiction, no putative modification of the Florida order can be seen as having emanated from a proceeding that satisfied basic due process requirements. Thus, there was no impediment to the assertion of jurisdiction by a New Jersey court, whether motivated by its general parens patria concerns with the best interests of children resident here for some time, or by a more particularized, straightforward application of the standards contained in the Uniform Child Custody Jurisdiction Act, N.J.S.A. 2A:34-31.

It must be stressed that, in reaching this Conclusion, we are not reviewing the correctness of any determination made in a Florida trial court. That is a responsibility belonging exclusively and completely to the appellate courts of Florida. It is a function which we do not share and which we may not usurp. As I see it, we are merely applying a standard rule that no court is obliged by the full faith and credit clause of U.S. Const., art. IV, § 1, nor by any other rule of comity, to recognize or give effect to a judgment or order of another state that is clearly unsupported by adherence to fundamental due process standards such as notice and a fair opportunity to be heard. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S. Ct. 559, 564, 62 L. Ed. 2d 490, 497 (1980) ("A judgment rendered in violation of due process is void in the rendering State and is not entitled to full faith and credit elsewhere. Pennoyer v. Neff, 95 U.S. 714, 732-733, 24 L. Ed. 565 (1878). Due process requires that the defendant be given adequate notice of the suit, Mullane v. Central Hanover Trust Co., 339 U.S. 306, 313-314, 70 S. Ct. 652, 657, 94 L. Ed. 865 (1950)[.]"). Such a Conclusion follows from a customary and regular exercise of our judicial responsibilities in a matter before us, and is in no way intended to evince anything but the highest respect for the authority and proceedings of the courts in a sister state.

In the latter connection, I believe it is essential, while affirming our trial court's exercise of subject matter jurisdiction, that we emphatically disavow the general tone and some of the terms of its April 13, 1993 order to show cause, from which the Florida trial court has taken justifiable offense. The reference to a decision of a Florida trial Judge as having been "improvidently taken" and the provision that "enjoined" the Florida court from issuing any further orders affecting the issues in dispute were particularly ill advised. The trial court had no right to make the finding and no authority to order the injunctive relief. It not only acted ultra vires in doing so, but it also failed to accord a decent and essential respect to the courts of a sister state. Furthermore, the trial court omitted to address adequately the only valid basis for declining to afford full faith and credit, the due process issue.

No Judge of this state should ever treat the proceedings or authority of courts and Judges in other states with such disdain. None of us is privileged to evaluate the quality or correctness of sister state determinations, as we might well do in respect of decisions by coordinate or subordinate courts in our own state. Nor do we have any warrant whatsoever to enjoin the courts of a sister state from acting according to their best lights. The full faith and credit clause substantially limits our freedom of action in these respects; and our own sense of comity should confine the manner in which we deal with the judicial proceedings of sister states. Absent an independent, temperately expressed determination that due process was lacking, reached with the greatest reluctance, we are commanded to defer to the rulings of courts in other states, and institutionally compelled to exhibit every bit of the grace we expect to be reciprocated.

Judge Cuff joins in this concurrence.


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