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Ganz v. Rust

April 4, 1997

MICHELLE GANZ, PLAINTIFF-APPELLANT,
v.
EDWARD RUST, DEFENDANT-RESPONDENT.



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

Approved for Publication April 8, 1997.

Before Judges Stern, Humphreys and Wecker The opinion of the court was delivered by Wecker, J.

The opinion of the court was delivered by: Wecker

The opinion of the court was delivered by

WECKER, J.S.C., t/a

This case requires us to determine the propriety of a Family Part order declining to exercise jurisdiction under the Uniform Child Custody Jurisdiction Act, N.J.S.A. 2A:34-28 et seq. (UCCJA), and consequently dismissing plaintiff's custody complaint. We conclude that the dismissal was premature, and reverse and remand for a plenary hearing to determine whether New Jersey has jurisdiction, if so whether Pennsylvania also has jurisdiction, and if both states have jurisdiction, which is the more appropriate forum in which to resolve the ongoing custody and visitation issues.

I.

A chronology is crucial to an understanding of the issue presented. Jacob Q. Rust was born to plaintiff Michelle Ganz and defendant Edward Rust on December 2, 1992 in Washington County, Pennsylvania, not far from Pittsburgh. At the time of Jacob's birth, Ganz and Rust were living together, along with Ganz' older child born of a previous relationship. The parties never married, and sometime in May 1993 they separated. Ganz alleges in her complaint that the separation was a result of Rust's drinking and acts of domestic violence. By June 1, 1993 Rust had moved to his parents' Washington County home, and Ganz had moved with the two children to live with her parents in Freehold, New Jersey. On September 1, 1993 Ganz filed for child support under the Uniform Reciprocal Enforcement of Support Act (URESA), N.J.S.A. 2A:4-30.24 et seq., in the Family Part of the New Jersey Superior Court in Monmouth County. The record does not disclose the result of the New Jersey support action.

On October 22, 1993, Rust filed for a determination of custody and visitation in the Court of Common Pleas in Washington County. The Complaint filed by Rust alleged that Jacob had lived with Ganz in New Jersey since June 1993, a period of about five months. The parties reached a detailed agreement regarding custody and visitation, and the terms of that agreement were memorialized in a consent order filed in the Pennsylvania action on February 23, 1994. That order, signed by Judge Debbie O'Dell Seneca, provided for joint legal custody, primary physical custody with Ganz, and visitation for Rust according to a detailed schedule under which Jacob would spend 33 days in 1994 and 35 days in 1995 with Rust. While the consent order does not expressly refer to each party's state of residence, we infer from the circumstances that the parties contemplated that Ganz would continue to live in New Jersey. The child lived in New Jersey with his mother and had visits with his father in Pennsylvania, except for a period when Ganz requested Rust to keep the child for several months *fn1 because, as Ganz alleges and Rust does not dispute, she had Lyme disease.

The parties dispute many facts that impact on the merits of an ultimate custody determination, which is not before us, as well as on jurisdiction. For example, while Rust alleges that he was unable to exercise visitation for extensive periods because Ganz would not give him her address or phone number, Ganz claims she always provided that information. Rust challenges her fitness to parent Jacob, and Ganz cites the prior acts of violence against her. Ganz has been receiving public assistance for at least some portion of the period since moving to New Jersey, and claims that the financial situation that inhibited her ability to litigate in Pennsylvania is a result, at least in part, of inadequate child support.

On May 3, 1995 Rust filed a petition in Pennsylvania to modify the consent order and grant sole custody to him. The record reveals a May 8, 1995 order from the Pennsylvania court requiring Ganz to appear in Washington County on June 26 for a pre-hearing conference, and providing the name, address and telephone number of the Washington County Legal Aid Society and the local lawyer referral service. It is unclear when Ganz received that notice. A subsequent notice to Ganz dated June 27, 1995 to appear at a September 6, 1995 hearing also appears in the record. Ganz received that notice sometime in the summer of 1995.

On August 22, 1995 Ganz filed a Verified Complaint in Warren County, New Jersey, seeking sole custody of Jacob and a restraint against Rust proceeding with the Pennsylvania action. Ganz is represented in the New Jersey action by Warren County Legal Services. On August 25, 1995 her New Jersey attorney wrote to John P. Smider, Esq., the master appointed by the Pennsylvania court, to notify him of the filing of the New Jersey action, as well as Ganz's contention that New Jersey and not Pennsylvania was now the home state of the child. The letter explained that Ganz's appearance in Washington County would be a hardship, that jurisdiction over custody issues was properly in the New Jersey court, and asked that the Pennsylvania proceeding be dismissed. A copy of that letter was sent to Rust's Pennsylvania attorney.

On December 14, 1995, without Ganz's presence or formal appearance in the Pennsylvania action, a custody hearing was conducted by the master, whose written report of the same date is in the record before us. The master found that a notice of hearing was served upon Ganz in New Jersey on July 15, 1995. He noted that the court had received a letter from Ganz's New Jersey attorney describing her difficulty in obtaining representation *fn2 and in appearing in western Pennsylvania, due to her limited financial circumstances. The master categorized the letter as an "ex parte communication," despite a copy noted thereon to Kenneth Stemberg, Esq., the Pennsylvania attorney who filed Rust's petition for modification, and the master concluded that the letter did not constitute the required appearance. After hearing testimony from Rust and his mother, the master concluded that custody should be awarded to Rust, with visitation for Ganz only in Washington County.

It was after learning of that report and a proposed court order adopting the master's recommendations that Ganz on December 27, 1995 sought an Order to Show Cause in the New Jersey action why she should not be granted temporary custody, restraints against Rust proceeding in Pennsylvania, a plenary hearing on jurisdiction, a custody investigation, and related relief. The New Jersey Family Part Judge made telephone contact on December 27, 1995 with Judge Seneca of the Pennsylvania Court of Common Pleas, and faxed to her the papers filed by Ganz in New Jersey. The Pennsylvania Judge on December 27 told the New Jersey Judge she intended to proceed with the Pennsylvania custody determination. While the New Jersey Judge was not satisfied with that response, he ordered Ganz to contact the Washington County (Pennsylvania) Legal Aid Society and to file her exceptions to the Pennsylvania master's report by December 28. On December 27 the New Jersey Judge also wrote to Judge Seneca requesting her view of the appropriate resolution of the jurisdictional issue. Judge Seneca never responded.

Ganz, who was unable to obtain representation by the Washington County Legal Aid Society, sent a letter to Judge Seneca on her own behalf on or about December 28, explaining her inability to obtain representation and the basis for claiming jurisdiction in New Jersey. A copy appears to have gone to Rust's attorney of record in Pennsylvania. On December 28, Judge Seneca signed an order giving Ganz an extension of 15 days to file her exceptions. However, it appears that neither Ganz nor her New Jersey attorney received that order until February 1, 1996. In the meantime, on January 23, 1996, Judge Katherine B. Emery entered an order in Pennsylvania incorporating the December 14 master's report and awarding custody to Rust. Neither the report nor the order addressed subject-matter jurisdiction. Assuming that Ganz had notice of the Pennsylvania hearing, and assuming that without counsel and with limited means she nevertheless had the obligation to appear at the master's hearing in Pennsylvania on December 14, 1995 *fn3, even sufficient notice and opportunity to be heard do not confer subject-matter jurisdiction or validate an otherwise void Pennsylvania court order. See Neger v. Neger, 93 N.J. 15, 35, 459 A.2d 628 (1983).

Apparently the January 23 order was mailed to Ganz in New Jersey at a prior address, and not at the Hackettstown address that Ganz provided in her December 28 letter to the Pennsylvania court. Ganz learned of the order when Rust arrived at her home in Hackettstown, New Jersey on January 31, accompanied by a local police officer, seeking physical custody of Jacob and claiming to have a Pennsylvania court order. Ganz was not provided with the order at that time. On February 1, 1996, Ganz's New Jersey attorney obtained a faxed copy of the order directly from the Pennsylvania court, and on that date the Family Part Judge entered an Order to Show Cause with temporary restraints against Rust enforcing the Pennsylvania order changing custody. On March 29, 1996, the return date of the Order to Show Cause, the Family Part Judge denied Ganz the relief sought and dismissed her complaint, concluding that because the Pennsylvania proceeding had been initiated and was pending when Ganz filed her New Jersey complaint on August 22, 1995, New Jersey was barred by the UCCJA from exercising jurisdiction or modifying the Pennsylvania order. The Judge granted Ganz a temporary stay pending the filing of her notice of appeal, and we granted a further stay of the dismissal order pending this appeal.

II.

The only question before us is whether the Judge erred in dismissing Ganz's complaint without a hearing. Ganz's claim that New Jersey has jurisdiction is based on the UCCJA provisions conferring jurisdiction where New Jersey "is the home state of the child at the time of commencement of the proceeding," N.J.S.A. 2A:34-31a(1), and defining "home state" as

the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as a parent, for at least 6 consecutive months, and in the case of a child less than 6 months old the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the 6-month or other period.

[N.J.S.A. 2A:34-30e]

Ganz argues that Pennsylvania did not have jurisdiction at the time Rust brought his modification action, because Jacob had been living in New Jersey for more than six months. If indeed she is correct, then N.J.S.A. 2A:34-42a(1) does not bar a New Jersey modification decree.

Rust argues that the New Jersey Family Part Judge correctly concluded that New Jersey's exercise of jurisdiction was barred by N.J.S.A. 2A:34-34a, which provides:

A court of this State shall not exercise its jurisdiction under this act if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this act, unless the proceeding is stayed by the court of the other state because this State is a more appropriate forum or for other reasons. (emphasis added).

The actual custody determination, in the best interest of Jacob *fn4, is not before us. We address only the method by which the trial court must determine jurisdiction under the controlling statutes. Despite the many "tie-breaking" provisions of the Act, we see the potential if not the actuality of an impasse in this case. The Pennsylvania court that has now issued its own modification decree never addressed the jurisdictional issue or the application of the UCCJA to this case.

The UCCJA mandates recognition and enforcement of the Pennsylvania modification decrees if that state

assumed jurisdiction under statutory provisions substantially in accordance with [that Act] or . . . made under factual circumstances meeting the jurisdictional standards of [the Act].

[N.J.S.A. 2A:34-41.]

Similarly, New Jersey is not to modify such a decree "unless (1) it appears to the court of this state that the [Pennsylvania] court . . . does not now have jurisdiction under [the UCCJA] . . . and (2) [New Jersey] has jurisdiction. N.J.S.A. 2A:34-42.

A court must make a threshold determination that it has subject-matter jurisdiction before entering a modification decree. See N.J.S.A. 2A:34-31; 23 Pa.C.S.A. § 5344. The Pennsylvania statute is virtually identical to the New Jersey version, and provides in pertinent part:

(a) General rule.--A court of this Commonwealth which is competent to decide child custody matters has jurisdiction to make a child custody ...


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