On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FD-11-414-00.
Before Judges Stern, Collester and Fall.
The opinion of the court was delivered by: Fall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: December 12, 2000
The primary issue in this appeal is whether the facts contained in this record support a finding of in personam jurisdiction of the Family Part over the California-resident father in an action by the New Jersey-resident custodial mother seeking the allocation of the college costs of the parties' unemancipated daughter. Because the parties were divorced in California, child support was established in California and subsequently modified through interstate proceedings in California, and the father has insufficient minimum contacts with this State, we conclude the Family Part lacks personal jurisdiction over the father and cannot entertain an action seeking to impose an obligation upon him for the college costs of the child.
Defendant, Gregory K. Sharp, appeals from entry of an order on November 5, 1999, denying his motion for dismissal. Defendant had moved to dismiss, on jurisdictional grounds, the application of plaintiff, Abbey L. Sharp, that sought an order compelling defendant to contribute to the college costs of the parties' unemancipated daughter, Jennie Suzanne Sharp.
The parties were married in California on August 18, 1973, separated in September 1981, and were divorced in the State of California by judgment of the Superior Court of California, San Bernardino County, on or about February 25, 1982. One child was born of the marriage, Jennie Suzanne Sharp, on March 15, 1980. The California judgment of divorce incorporated the parties' marital settlement agreement, which vested custody of Jennie with plaintiff and required defendant to pay plaintiff the sum of $50 per month in child support, "continuing until the child reaches her majority, marries, dies, becomes self-supporting, or further order of the Court, whichever first occurs." The judgment and agreement are silent on the issue of responsibility for the future college costs of the child. In June 1983, plaintiff and Jennie moved to New Jersey, where they have since lived. Defendant remains a resident of California.
Defendant's child support contributions were increased progressively over the years through proceedings initiated by plaintiff under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), N.J.S.A. 2A:4-30.1 to -30.64, reaching the sum of $475 per month in 1993. Jennie and defendant maintained a strong relationship over the years and she would spend each summer with defendant in California. In September 1998 defendant ceased paying child support for Jennie.
Jennie graduated from high school in June 1998 and began her freshman year of college in August 1998 at the University of Massachusetts, at a cost of approximately $14,204 annually. In a letter to defendant dated July 23, 1998, plaintiff requested defendant to contribute to Jennie's college costs by paying fifty- percent thereof through an increase in his monthly child support by $700. The issue of Jennie's college costs was not resolved by the parties.
On or about August 3, 1999, plaintiff filed a motion in the Family Part, returnable September 10, 1999, seeking an order compelling defendant to contribute to Jennie's college costs.(*fn1) The motion was received by defendant by certified mail. Defendant, through a letter to plaintiff's counsel by defendant's California counsel dated August 4, 1999, claimed the Family Part lacked jurisdiction over him. However, no response to the motion was filed by defendant with the Family Part.
At the September 10, 1999 motion return date, the motion judge noted defendant had not filed any response to the motion. The judge reserved decision and ordered both parties to submit financial information consisting of "two years tax returns, W-2's and three most recent paystubs." An order prepared by the court was executed on September 14, 1999, memorializing the September 10, 1999 decision, the court reserving "its decision on the issue of whether or not Defendant must contribute to the college expenses of the parties' daughter, Jennie Suzanne Sharp."
Thereafter, the parties entered into settlement negotiations that were unsuccessful. On October 20, 1999, defendant filed a motion seeking an order establishing that the Family Part lacked jurisdiction over him to consider plaintiff's college-contribution application. In support thereof, defendant certified that with the exception of three brief vacations, he has never been to New Jersey and has had no other contacts with this State.
Defendant stated his "child support obligation has always been enforced, collected and modified in California through the interstate child support collection system." Defendant further noted that prior to plaintiff's motion, there were no New Jersey court proceedings between the parties.
Plaintiff filed a cross-motion, seeking an order dismissing defendant's motion and assessing counsel fees and costs against him.
The motions were argued on November 5, 1999. The motion judge construed defendant's motion to dismiss as a motion for reconsideration of the September 14, 1999 order, pursuant to R. 4:49-2. The judge then found defendant's motion to be filed out- of-time stating, in pertinent part:
[The] Court would note that under the section of 4:49-2
[that] provides that any affirmative defense which . . . has been waived, is not subject to revival by being raised in a motion for reconsideration. The Court will note that when this motion was initially filed, there was no affirmative defense raised by way of the jurisdictional issue. That was the appropriate time to bring it up. It is only on the motion for reconsideration that [counsel for defendant] ...