March 10, 2008
APRIL M. BRENNAN, PLAINTIFF-RESPONDENT,
WILLIAM M. BROWN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FD-05-273-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 6, 2008
Before Judges Parker and Lyons.
Defendant William M. Brown (Brown) appeals from a trial court order finding him to be the father of twin girls and requiring him to pay support for them. Brown claims the order was entered without the trial court having personal jurisdiction over him. Because we find that Brown did not have the requisite minimum contacts with New Jersey to establish personal jurisdiction, we reverse the trial court order and dismiss the complaint.
The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. Plaintiff April M. Brennan (Brennan) and Brown began a relationship in 2000. Initially, the parties lived in New Jersey; however, they later moved to Maine. They lived together in Maine, where twin girls were conceived and, subsequently, born on April 28, 2003. Later in August 2003, Brennan left Maine with her children and moved to Maryland. According to Brennan, after she moved to Maryland, she attempted to obtain child support from Brown by filing a complaint pursuant to the Uniform Interstate Family Support Act (UIFSA). See N.J.S.A. 2A:4-30.65 to 39.123. In 2003, pursuant to UIFSA, Brennan filed a complaint for paternity and support in Maryland. Maryland forwarded the complaint to Maine so that Brown could be served and a Maine court could enter a paternity and support order. When that was attempted in 2003, Brennan advises that Maine "denied the claim."
In 2004, Brennan again sought to file a complaint against Brown for paternity and support. On that occasion, the complaint was forwarded to New Jersey. On March 22, 2004, that complaint was dismissed after the New Jersey court found that Brown was not a resident of New Jersey, based on the proofs Brown submitted demonstrating his Maine residency. Accordingly, Brennan again, through the state of Maryland, attempted to file a petition in Maine. The record indicates that Brown was served in 2005 in Maine, but there is no documentation as to the result of that application.
On September 12, 2006, Brennan again filed, pursuant to UIFSA, a complaint for paternity and child support in Maryland. Maryland transmitted the complaint to New Jersey. New Jersey mailed notice of the complaint and hearing certified mail/return receipt requested to Brown at 220 Marshville Road, Woodbine, New Jersey, the home of Brown's father. According to Brown, when his father, who lives at the address, informed Brown that there was a notice that a certified letter was at the post office, Brown had a friend obtain the letter from the post office. Brown recognized the notice to be similar to what he had received in 2004, and wrote a letter advising the New Jersey court that he was not a resident of New Jersey, but rather a resident of Maine. He also included in his letter the prior order from March 2004 which dismissed a similar complaint.
Brennan's complaint stated that she sought support for the twins; that defendant was listed as their father on the children's birth certificate; that the children were conceived and born in Maine; and that she was living in Maryland. On November 30, 2006, a hearing was held before a hearing officer on Brennan's complaint. Neither Brennan nor Brown were present. The hearing officer read through the petition, but did not explore Brown's objection to jurisdiction. Rather, the hearing officer noted that a "green card" had been signed for the certified mail and simply proceeded to prepare an order for paternity and support. That order was then executed by the trial court.
When Brown learned of the order, he moved to dismiss it. On January 16, 2007, a hearing was held in New Jersey at which time Brown and Brennan appeared, and Brown submitted various documents demonstrating his Maine residency. Brown argued to the court that he was not a New Jersey resident, and that while acknowledging that he does come to New Jersey to work sporadically, he is not a resident of New Jersey. He produced Maine tax returns, as well as other documents indicating his domicile to be Maine. Brown stated that, with respect to whatever applications Brennan had made in Maine, he did not receive the papers. Brennan disputed Brown's claims and argued that Brown works in New Jersey, has a cell phone with a New Jersey area code, and that he pays child support through New Jersey for four other children from his ex-wife who lives in New Jersey after having obtained a divorce here years ago. Brown, on the other hand, pointed out his current Maine driver's license; his Maine income tax return; Maine property tax bills; utility bills showing his address in Maine; and he testified that he has for many years been registered to vote in Maine. After hearing testimony and reviewing the proofs, the trial court concluded that because Brown paid child support "through New Jersey" for his four other children who live in New Jersey, that the court had jurisdiction to entertain Brennan's complaint. The trial court stated that a New Jersey cell phone and Brown's intermittent work in the state created sufficient minimum contacts to find the court had jurisdiction. The court, therefore, entered a modified paternity and child support order.
On February 1, 2007, Brown, through counsel, filed a motion for reconsideration which was denied and this appeal ensued. On appeal, Brown argues that neither he nor Brennan have been a resident of New Jersey at any relevant time and that the New Jersey courts have no jurisdiction to hear this paternity and support action. Brown also argues that if we are to find that New Jersey had jurisdiction, he was denied due process by the trial court. Brennan on the other hand argues that the facts indicate Brown is a resident of New Jersey, and the court does have jurisdiction.
We begin first by setting forth some fundamental principles. N.J.S.A. 2A:4-30.68 sets forth the law with respect to personal jurisdiction over a non-resident individual in connection with establishing a support or paternity order pursuant to UIFSA. It reads as follows:
In a proceeding to establish, enforce, or modify a support order or to determine parentage, a tribunal of this State may exercise personal jurisdiction over a nonresident individual or the individual's guardian or conservator if:
a. the individual is personally served with a summons or notice within this State;
b. the individual submits to the jurisdiction of this State by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;
c. the individual resided with the child in this State;
d. the individual resided in this State and provided prenatal expense or support for the child;
e. the child resides in this State as a result of the acts or directives of the individual;
f. the individual engaged in sexual intercourse in this State and the child may have been conceived by that act of intercourse; or
g. there is any other basis consistent with the constitutions of this State and the United States for the exercise of personal jurisdiction.
We are satisfied from our review of the record that the only provision of the statute which might confer personal jurisdiction over Brown in this case is N.J.S.A. 2A:4-30.68(g). That provision allows the court to exercise jurisdiction if it is "consistent with the constitutions of this State and the United States."
We have made it clear that "New Jersey has expressed as its policy its intent to exercise personal jurisdiction over nonresident defendants to the extent 'consistent with due process of law.'" Katz v. Katz, 310 N.J. Super. 25, 30 (App. Div. 1998) (quoting R. 4:4-4(d)(1)).
The United States Supreme Court has said that "due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not 'offend traditional motions of fair play and substantial justice.'" [Ibid. (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278, 283 (1940))).]
As we have said in the past:
It is fundamental "that a valid judgment imposing a personal obligation or duty in favor of the plaintiff may be entered only by a court having jurisdiction over the person of the defendant." Kulko v. Cal. Super. Ct., 436 U.S. 84, 91, 98 S.Ct. 1690, 1696, 56 L.Ed. 2d 132, 140 (1978). In addition to the presence of reasonable notice to the defendant of an action, the existence of personal jurisdiction turns on "a sufficient connection between the defendant and the forum State to make it fair to require defense of the action in the forum." Ibid., 436 U.S. at 91, 98 S.Ct. at 1696, 56 L.Ed. at 141; see also International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102 (1945). [Sharp v. Sharp, 336 N.J. Super. 492, 500 (App. Div. 2001).]
There is no question in this matter that Brown's activities in New Jersey cannot be characterized "as continuous and systematic" contacts such that New Jersey would have general jurisdiction which would subject Brown to suit on virtually any claim. Lebel v. Everglades Marina, Inc., 115 N.J. 317, 323 (1989). Rather, the question in this case is whether the complaint for paternity and support relates directly to minimum contacts with New Jersey such that we can find "specific jurisdiction." Id. at 322. The "minimum contacts" test, however, "is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite 'affiliating circumstances' are present." Kulko, supra, 436 U.S. at 92, 98 S.Ct. at 1697, 56 L.Ed. 2d. at 141 (quoting Hanson v. Denckla, 357 U.S. 235, 246, 78 S.Ct. 1228, 1235, 2 L.Ed. 2d 1283, 1293 (1958)). Moreover, "[i]n the context of specific jurisdiction, the minimum contacts inquiry must focus on 'the relationship among the defendant, the forum, and the litigation.'" Lebel, supra, 115 N.J. at 323 (1989) (quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2579, 53 L.Ed. 2d 683, 698 (1977)).
In this case, therefore, we must examine the contacts Brown has with the State of New Jersey in order to determine whether he has sufficient minimum contacts with New Jersey to permit us to exercise personal jurisdiction over him concerning this paternity and support complaint.
The proofs indicate that Brown possesses a Maine driver's license, files income tax returns there, receives real estate tax bills and utility bills addressed to him there, and that he is registered to vote in Maine. The contacts with New Jersey appear to be three. First, Brown owns a cell phone with a New Jersey area code number. Second, he intermittently works in New Jersey as an electrician or laborer. Third, Brown pays child support through New Jersey for four other children to his ex-wife who moved to New Jersey from Maine and received the divorce here. Brown testified that the reason he maintains a New Jersey area code number on his cell phone is that because he has significant family in New Jersey and it is cheaper to make the calls with that number. He readily admits that he occasionally works in New Jersey, but he stresses that it is not his domicile. Lastly, he acknowledges that his former wife moved to New Jersey, sought a divorce here, and that he does pay child support to her for their four children.
We find that these three contacts with New Jersey are insufficient to permit us to exercise personal jurisdiction over Brown concerning this complaint. None of these contacts focus on or bear upon the relationship he has with Brennan, the paternity of the children, or their support. There is no connection between Brown's occasional work in New Jersey, with Brennan, or the children. Likewise, the location of his children from the prior marriage has nothing to do with this action.
Accordingly, we are convinced that Brown's contacts with New Jersey do not afford a basis to exercise in personam jurisdiction over him with respect to this matter which is totally unrelated to Brown's New Jersey contacts.
We are mindful, of course, of the repeated attempts by Brennan to obtain an adjudication of paternity and child support for her children and can appreciate what must be her frustration at twice having applied to Maine, and twice having applied to New Jersey without a successful resolution. We also recognize that Brown, however, cannot now claim in Maine that he is a New Jersey resident. If he were to do so, he would be judicially estopped. Judicial estoppel "arises when a party advocates a position contrary to a position it successfully asserted in the same or prior proceeding." Kimbel Int'l v. Northfield Metal Prods., 334 N.J. Super. 596, 606 (App. Div. 2000), cert. denied, 167 N.J. 88 (2001); accord Me. Educ. Assoc. v. Me. Cmty. College Sys. Bd. of Trs., 923 A.2d at 914, 918 (Me. 2007). Nor can Brown argue that it would be inequitable for him to pay support from his earlier notice of the complaint should he be found the twins' father. However, Brennan will have to repeat her application in Maine to obtain a full and final hearing. Accordingly, we note that although Brennan cannot at this time pursue Brown in New Jersey, she apparently has an available remedy in Maine.
Based upon the analysis set forth above, the trial court's order for paternity and child support is reversed and the complaint dismissed.
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