Before Judges Stern, A. A. Rodr¡guez and Collester.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 26, 2000
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County.
Defendants, Tatsuya Matsumoto and his mother Kazuko Matsumoto, appeal from an Amended Judgment of Divorce and from a separate order both entered on July 26, 1999. Yasunori Matsumoto, guardian ad litem of Hugo Matsumoto, *fn1 appeals from a paragraph of the same judgment and from the denial of his motion for reconsideration on October 12, 1999. Defendants challenge portions of the Amended Judgment of July 26, 1999 which include the award to plaintiff, Satoko Matsumoto, as her share of equitable distribution, of the marital home even though it is titled in the name of Kazuko (and the order which appoints plaintiff as a receiver to convey the property) and $944,500 in assets; the award of legal and residential custody of Hugo, the son of plaintiff and Tatsuya, together with child support; the award of damages and punitive damages for both defendants' "intentional interference" with the custody of Hugo, and the award of counsel fees in favor of plaintiff. The guardian appeals from the paragraph of the judgment requiring that the security deposited in lieu of bond be retained by plaintiff, as trustee, for future use in connection with Hugo's counseling.
Kazuko argues that the court did not have in personam jurisdiction; that the default judgment against her should be vacated; that plaintiff's allegations cannot sustain a cause of action against her for tortious interference with custody; that the award of counsel fees against her (in the amount of $38,152.38 jointly and severally with Tatsuya) is unauthorized under the Rules; that the appointment of plaintiff as receiver to sell her premises violates her due process rights, and that the proceedings on remand should be before another judge.
Tatsuya also challenges the default. In addition, he argues that the determination regarding custody and child support, the award of alimony and $750,000 in life insurance benefits for plaintiff, and the award of compensatory and punitive damages for the tortious interference claim are "without foundation" and not supported by the record.
The guardian, Yasunori, Tatsuya's brother, claims that it was an abuse of discretion and violation of due process for the trial judge to order that the cash posted by him in lieu of bond (retained in an account of defendants' counsel (now counsel for Kazuko)) is to be held and used by plaintiff, as trustee, for Hugo's counseling.
It is uncontested before us that on May 2, 1997, defendants were found to be in violation of an April 25, 1997 order requiring them to return Hugo to New Jersey from Japan (where he remained after a family vacation) and ordering the issuance of arrest warrants for defendants; that on October 6, 1997, the trial judge found that it had in personam jurisdiction over Kazuko; *fn2 that on December 4, 1997 defendants were both indicted for conspiracy to interfere with custody, interference with custody, and endangering the welfare of a child; that on December 23, 1997 arrest warrants were issued for their arrests on the charges when they did not appear for arraignment, and that on April 10, 1998, after plaintiff requested the entry of default against defendants, *fn3 defendants both certified that they would "acknowledge that the New Jersey courts may exercise personal jurisdiction over [them]," based on acceptance of various conditions including vacation of the civil arrest warrants, issued on May 2, 1997 and continued on July 3, 1997, and dismissal of the indictment and criminal arrest warrants issued thereon. In light of this procedural background, and particularly defendants' fugitive status, we asked at oral argument whether the defendants could seek the relief of this court while remaining fugitives on both the related civil and criminal proceedings. We invited, and received, briefs on that subject.
With the exception of consideration of Kazuko's in personam jurisdiction argument, we decline to consider the appeal by her or Tatsuya. While we could first require her to move for dismissal of the indictment against her or vacation of the warrant in the criminal proceedings on jurisdictional grounds, we consider the in personam jurisdiction claim because we feel that due process requires a finding of jurisdiction before dismissing the appeal on the ground that she remains a fugitive in this matter as well as in the criminal case.
It appears uncontested that "[a]ll of the parties to this lawsuit are Japanese nationals"; plaintiff and Tatsuya lived in New Jersey from 1985 to 1997; Hugo was born here in 1985, and Tatsuya and Hugo have lived in Japan since 1997. Kazuko asserts that because the trial judge found the marital home in Cedar Grove "had been gifted to Tatsuya and [plaintiff,]" she could not be found to be the owner for purposes of jurisdiction, but even if "the Cedar Grove property belongs to [her], . . . New Jersey courts still cannot exercise personal jurisdiction over her," and that her "New Jersey property provided no basis for the exercise of in personam jurisdiction on the interference of custody claim."
Kazuko moved for dismissal below, arguing that she lacked sufficient contacts with New Jersey to subject her to in personam jurisdiction. Plaintiff responded, contending that Kazuko had visited New Jersey four or five times and that she had invested in real property here. Plaintiff also emphasized Kazuko's key role in luring Hugo to Japan and preventing his return to New Jersey and in ...