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Shah v. Shah

November 9, 2004


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FV-02-586-04.

Before Judges Kestin, Alley and Falcone.

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


Argued: October 19, 2004

On August 22, 2003, plaintiff, Gayatri Shah, filed a complaint seeking relief under the Prevention of Domestic Violence Act of 1991 (the Act), N.J.S.A. 2C:25-17 to -35.

Following the entry of a temporary restraining order (TRO), defendant, Mayank Shah, moved to dismiss the complaint for lack of jurisdiction over the person. The trial court denied that motion.

In the meantime, in an amended TRO, the court had continued the restraints previously imposed on defendant, and had ordered defendant, by way of temporary support, to pay plaintiff $1,500 within eight days and an additional $300 per week pending a hearing and the entry of a final order. The amended TRO also provided that defendant was to send plaintiff"[her] work permit, social security card, all immigration related documents and plaintiff's personal mail."

We granted leave to appeal, staying further proceedings in the trial court but providing"that the temporary order remains in effect pending the appeal." On appeal, defendant argues that the courts of New Jersey lack subject matter and personal jurisdiction; and that, by application of forum non conveniens principles, the issues should be tried in the State of Illinois, where a divorce action between the parties is pending. The Illinois divorce complaint, which defendant had filed at about the same time this matter was commenced, was served on plaintiff at the time argument of the motion to dismiss occurred.

The parties were married in India on November 12, 2001, in what defendant asserts was"a religious ceremony" and plaintiff characterizes as"an arranged marriage." Defendant, a U.S. citizen, is a physician licensed to practice in Illinois. Plaintiff is a citizen of India. Following the marriage, defendant returned to the United States alone. Plaintiff came to the United States almost a year-and-a-half later, in April 2003, after receiving proper immigration papers.

The parties resided together in Illinois from the date of plaintiff's arrival until August 12, 2003, when plaintiff left the marital home and sought refuge with family friends in Bergen County. She was pregnant (two months according to defendant; five months according to plaintiff) at the time. Plaintiff's domestic violence complaint charged as the underlying offenses: terroristic threats, criminal restraint, false imprisonment, and harassment; and alleged supporting facts attributed to defendant and his family that motivated plaintiff to"jump[] out of a window to escape...."

The initial TRO was entered on the date the complaint was filed, August 22, 2003, returnable for a final hearing on September 4, 2003. The trial court entered the amended TRO on the latter date, providing for a rescheduled final hearing on September 23, 2003, the date of which was again continued to October 9, 2003. In the interim, defendant filed his jurisdictional motion, in respect of which argument was heard on September 23, with an order entered on October 8, 2003.

Counsel, appearing on defendant's behalf for the limited purpose of advancing the jurisdictional challenge, has represented throughout that defendant has never resided in New Jersey and has no connection with this State sufficient to satisfy minimum contacts requirements for the assertion of personal jurisdiction. See Hanson v. Denckla, 357 U.S. 235, 245-46, 253, 78 S.Ct. 1228, 1235, 1240 1235, 2 L.Ed.2d 1283, 1293, 1297-98 (1958); International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 101-02 (1945); Pennoyer v. Neff, 95 U.S. 714, 732-33, 24 L.Ed. 565, 572 (1878). See also Kulko v. Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978); A.R. v. M.R., 351 N.J. Super. 512, 519 (App. Div. 2002); Sharp v. Sharp, 336 N.J. Super. 492, 499-05 (App. Div. 2001). Cf. Johnson v. Bradbury, 233 N.J. Super. 129, 132-34 (App. Div. 1989). For the purposes of this appeal, plaintiff having asserted no challenge to the factual bases of defendant's claim that minimum contacts are lacking, we accept the jurisdictional facts as presented by defendant to be true.

The lack of minimum contacts does not resolve all of the issues before us, however. We are as concerned with this State's responsibility to provide the protection afforded by our laws to any person resident here, i.e., plaintiff, as we are with our duty not to overstep the bounds of what supervening law requires before we can properly assert jurisdiction over the person of defendant.

Manifestly, both for public policy reasons and more general prudential considerations, any person resident in this State may expect the protection of our laws. More particularly,"[t]he Act's plain language authorizes New Jersey courts to protect domestic violence victims seeking shelter in this State." State v. ...

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