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Hendry v. Hendry

April 23, 2001

ANDREW DELANEY HENDRY, PLAINTIFF-RESPONDENT,
v.
JEAN SHARON HENDRY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-292-96.

Before Judges King, Coburn and Lefelt.

The opinion of the court was delivered by: Lefelt, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 4, 2001

Plaintiff Andrew Hendry and defendant Jean Hendry were married on June 17, 1970. The parties adopted one child at birth, Robert Andrew Hendry ("Robbie"), who is eleven years old. On June 10, 1997, Andrew and Jean were divorced by dual judgment, and on March 12, 1998, the parties incorporated a property settlement agreement into their divorce judgment. The parties negotiated, as part of the settlement agreement, a provision continuing jurisdiction in New Jersey for all matters relating to their child. Jean and Robbie currently live in North Carolina and Andrew has moved to New York. Jean in this appeal contends that Judge Herr violated the Uniform Child Custody Jurisdiction Act, N.J.S.A. 2A:34-28 to -52 ("UCCJA"), by enforcing the negotiated continuing jurisdiction provision. We disagree with Jean's contention and affirm.

I.

Jean and Andrew lived in New Jersey together from 1976 through 1980 and from 1991, when Robbie was adopted at birth, until June 1998, when Jean moved with Robbie to North Carolina. As part of their divorce proceeding, Andrew and Jean negotiated a detailed consent-to-jurisdiction provision for inclusion in the parties' property settlement. The parties recognized that Jean wanted to relocate to North Carolina with Robbie. Jean wished to move to North Carolina for its milder climate and more affordable lifestyle. She had no job and no family in North Carolina, but hoped to establish a horse farm. In consideration for Andrew's consent to Jean's move with Robbie, the parties agreed, as follows, that New Jersey shall "irrevocably" retain jurisdiction over any subsequent dispute they may have relating to their former marriage:

Jurisdiction. The parties agree to submit any dispute concerning their son to Judith Grief for mediation. In the event Judith Grief is not available for such mediation, the parties shall attempt to agree to a similarly qualified mental health professional and, if they cannot agree, the court shall appoint a mediator of its choice. In the event said mediation does not resolve the dispute, or in the case any dispute arises between the parties with regard to any financial issues, each of the parties hereby irrevocably consents and submits to the jurisdiction of the courts of the State of New Jersey in connection with any suit, action or other proceeding arising out of or relating to the child, this Agreement or the transactions contemplated hereby, waives any objection to venue in the County of Hunterdon, and agrees that service of any summons, complaint, notice or other process relating to such suit, action or other proceeding may be upon Gary Newman, Esquire for Wife and Susan Reach Winters, Esquire for Husband, regardless of where each party resides at the time said dispute arises, and regardless of any law to the contrary.

Besides negotiating this consent-to-jurisdiction provision, the parties also agreed on timesharing and co-parenting arrangements and shortly thereafter entered into a consent order that incorporated the co-parenting guidelines into the settlement agreement and divorce judgment. A little over one month after the parties agreed to the consent order, Jean and Robbie relocated to North Carolina. Sometime thereafter, Andrew also moved from New Jersey and currently resides and works in New York City, though he also has a second home in North Carolina about five miles from Jean's home.

A little over one year after Jean and Robbie moved to North Carolina, Jean on July 16, 1999, filed a motion seeking to have North Carolina assume jurisdiction under the UCCJA to modify visitation. Andrew countered on September 1, 1999 by filing a motion to enforce litigant's rights in Hunterdon County, New Jersey seeking primary residential custody of Robbie and setting a timesharing schedule for Jean. After the North Carolina judge consulted with Judge Herr and was advised of the parties detailed consent-to-jurisdiction agreement, the judge declined jurisdiction.

Jean then filed a cross-motion in Andrew's New Jersey action, requesting that under the UCCJA New Jersey decline jurisdiction over the custody and parenting issues in favor of North Carolina. Jean claims that the parties' agreement, in essence, abrogates the UCCJA and New Jersey should not be permitted to retain jurisdiction permanently because neither party nor the child has any connection with New Jersey. Judge Herr rejected (a) Jean's cross-motion to relinquish jurisdiction to North Carolina, (b) Andrew's motion for primary physical custody, and (c) both parties' applications for attorney fees. Only Jean appealed from these determinations to contest New Jersey's refusal to recognize North Carolina's jurisdiction over this dispute.

II.

The UCCJA indicates that "New Jersey has jurisdiction to make a child custody determination. . . if: (1) This State (i) is the home state of the child at the time of commencement of the proceeding . . . ." N.J.S.A. 2A:34-31a(1). Generally, to be the "home state," the statute requires that the child reside in that state for "6 consecutive months" before the custody suit began. N.J.S.A. 2A:30-30e. There are also other UCCJA provisions authorizing this State to determine child custody disputes, which do not require "home state" status. For purposes of this appeal, however, we note merely that neither party contends that New Jersey derives jurisdiction in this matter either as the "home state" or under any of the other UCCJA jurisdiction authorizing provisions. N.J.S.A. 2A:34-31a,b. In fact, Jean's position is that North Carolina is clearly the "home state" and the only state that ought to determine this dispute. We reject this position.

The UCCJA was enacted in part to"[a]ssure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training and personal relationships is most readily available . . . ." N.J.S.A. 2A:34-29a, c; Ivaldi v. Ivaldi, 147 N.J. 190, 198 (1996); Neger v. Neger, 93 N.J. 15, 25-26 (1983). An argument can be ...


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