On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, FV-14-242-98; FV-14-160-98; FV-140000354-99.
Before Judges Stern, Collester and Fall.
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Pursuant to leave granted, plaintiff Edith Anyanwu appeals from an order of the Family Part, Morris County, on February 9, 2001. The order released the defendant, Longy Anyanwu, from custody in the Morris County Correctional Facility, to which he was confined on August 14, 1997. The parties are citizens of Nigeria who have resided in the United States for over twenty years. Defendant was a professor at Montclair State University prior to his incarceration.
The parties were married in Baltimore, Maryland, on August 25, 1984. Defendant claims an earlier marriage in Nigeria on May 26, 1984, but plaintiff maintains this was only a customary ceremony to announce their engagement and that defendant was not even present. Their two children were born in the United States: Uchechi, born June 1, 1985; Ogechi, born October 19, 1986, and now deceased. The children had dual citizenship with Nigeria.
By 1996 there were significant marital problems.
Plaintiff filed a complaint under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17, and obtained a Final Restraining Order which she later voluntarily dismissed. Defendant filed for a divorce in Nigeria in August 1996, although plaintiff contends that she was never served.
In June of 1997 the parties and their children traveled to Nigeria where they have over 100 family members. Plaintiff avers that while in Nigeria defendant told her that the marriage was over, confiscated her passport and denied her access to the children. Claiming that she was in fear for her physical safety, she returned alone to the United States in July 1997. Later that month defendant also returned. The children remained in Nigeria.
On August 5, 1997, plaintiff filed another complaint under the Domestic Violence Act, N.J.S.A. 2C:25-17, and a Temporary Restraining Order directed defendant to return the children to plaintiff's custody. Defendant was served with the order after his return from Nigeria. At a hearing on August 11, 1997, the restraints against defendant were continued, and he was directed to produce the children in court three days later.
On August 14, 1997, both parties appeared, but the children were not present. Defendant advised the court that his father had decided to raise the children according to the customs of Nigeria and would not allow them to return to the United States. Nevertheless, the judge found that defendant could exert sufficient power over his family in Nigeria to have the children returned, held him in violation of the Final Restraining Order and pursuant to R. 1:10-3 remanded defendant to the Morris County Correctional Facility until he complied with the order. Defendant has remained confined since that date.
After a review hearing on September 4, 1997, defendant was again found in contempt for a violation of the Final Restraining Order and was remanded to the county jail. We granted leave to appeal on defendant's emergent application and remanded to the Family Part judge with the direction that defendant receive a "trial-type" hearing to give him an opportunity to prove his claimed inability to comply with the order and with the further direction to the hearing judge that if defendant was successful, he should be released immediately.
That hearing was held on September 18, 1997. Defendant testified he called relatives in the United States to aid in convincing his father to permit the children to leave Nigeria but was advised that his father refused. He added that he was told the children were no longer living with his father but with an aunt and uncle in Nigeria.
At the hearing defense counsel also produced a letter dated September 10, 1997 from Chief Val Onugha, Chairman of the Amaraka Customary Court of Imo State, Nigeria, directed to the trial judge stating that the issue of custody of the two daughters was before the Customary Court in Nigeria as a result of the 1996 divorce action filed by defendant and that the Nigerian court ordered that the children were to remain in Nigeria. The letter also stated that jurisdiction was based on a celebration of a customary marriage in Nigeria and that plaintiff had knowledge of the suit brought by defendant. The letter concluded:
Finally, Longy's lawyers have hinted [to] me of the possibility of Longy be[ing] forced to sign papers which would enable the children [to] be returned to America. I have taken note of this, and as long as Nigeria remains independent I shall not honor any document signed by Longy because as long as he is [in] prison and in Chains (as "the star-ledger" reports), any document he signs cannot be free of duress.
In response to the inquiry of the judge, defendant declined to sign or submit documents to the Nigerian court or other authorities because of the statements in the letter from Chief Onugha that no weight would be given to any requests from him while he remained in prison. The hearing judge found that defendant's testimony and the letter from the Nigerian court were insufficient to meet defendant's burden to prove an inability to comply with the court order. Defendant was remanded back to confinement.
On September 24, 1997, defendant appealed. We affirmed the hearing judge and emphasized that defendant was not in jail for failure to produce his children but because he had not abided by the order of the trial court to make good faith and best efforts to do so. We remanded with a direction to focus the R. 1:10-3 order more sharply to detail exactly what steps defendant needed to take to purge himself of contempt and secure his release. On remand and after considering arguments of counsel the hearing judge entered an order on January 4, 1998, setting forth the following actions by defendant that would satisfy the requirement that he act in good faith to achieve the return of his daughters to the United States:
1. Direct a letter to his father authorizing his father to turn over custody of the Defendant's children to a representative of the United States Department of State or such person as the Plaintiff may designated.
2. File an application to the appropriate Court in Nigeria requesting that custody of the children be turned over to the Plaintiff/mother so that they may be returned to the State of New Jersey for further proceedings.
3. Request that the appropriate Court in Nigeria appoint a Guardian of his children, request the court to direct that custody of the children be turned over to the Guardian and that the Guardian deliver the children into the custody of the United States Department of State at the Embassy/Consulate in Lagos.
4. Direct his father to make immediate arrangements for the return of the children to New Jersey including making arrangements to take the children to the airport and place them on a flight whose ultimate destination is New Jersey.
5. Write a letter to the President and/or Prime Minister of Nigeria requesting their assistance in obtaining the return of his children to New Jersey.
6. Request his father, the government and the Courts in Nigeria to Order that the sister and brother-in-law of Defendant who last had custody of the children immediately to notify him of their latest whereabouts and medical condition.
7. File a Certification/Affidavit with the United States Department of State, the Nigerian Consulate and the United States Embassy in Lagos stating that he is the father of the children and he wants them returned to the United States. He must authorize whatever ...