On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1898-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 14, 2008
Before Judges Wefing, R. B. Coleman and Lyons.
This case involves a marital dispute between plaintiff Sarit Hirschkorn and defendant Jay Hait. Plaintiff appeals from a trial court's order of April 5, 2007, which found that New Jersey did not have jurisdiction over the issue of the couple's children; that Israel is the home state of the children; and dismissed plaintiff's requested relief for divorce, child custody, child support, spousal support, equitable distribution, marital torts and counsel fees, other than the dissolution of the marriage.
The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. Plaintiff was born and raised in Israel until she moved to the United States with her family when she was fifteen. Defendant was born in the Bronx, New York. Both parties hold dual citizenship in the United States and Israel. The parties were married in 1991 in Israel, after which they returned to New Jersey where they had three children and lived for the next thirteen years.
Defendant is an attorney and works as in-house counsel for the company VOCFREE, Inc. Plaintiff works in the Information Technology Department of a company called ACS, Inc.
The parties acquired two real properties during the course of their marriage; one in Fair Lawn, which was rented, and one in Teaneck, in which the family lived.
It is undisputed that the couple's marriage was not going well. Plaintiff claims that defendant was abusive to her and the couple's children. Sometime in 2002, plaintiff began having an extra-marital affair. Plaintiff claims that defendant was aware of this affair and threatened her paramour because of it. However, defendant asserts that he was not aware that his wife was having an affair until after he arrived in Israel in 2004.
According to defendant, he conditioned the marriage upon the couple eventually emigrating to Israel. However, plaintiff claims that while defendant had pressured her to move to Israel on more than one occasion, she had always made it clear to defendant that New Jersey was her home, and she had no desire to make a new home in Israel. Plaintiff further claims that she only agreed to move to Israel for a trial period to work on the marriage.
On September 1, 2004, the parties, along with the children, moved to Israel. Defendant and the three children, now ages fourteen, twelve, and eight, still reside there.
On September 27, 2004, defendant filed a complaint in the Rabbinical Court of Israel for a divorce and for temporary custody of the parties' three children. Judge Rabbi Ezra Batzri granted defendant's request for temporary custody and ordered plaintiff not to leave Israel with the children before oral argument, which was scheduled for October 12, 2004. Plaintiff then filed a motion with the Rabbinical Court to dismiss defendant's divorce complaint for lack of jurisdiction. A hearing on the motion was scheduled for November 28, 2004.
Plaintiff filed a complaint for divorce in Superior Court, Chancery Division, in Bergen County on October 20, 2004. Plaintiff also filed an application for an order to show cause on that date. The trial court granted the order to show cause, which restrained defendant from dissipating any of his assets, required defendant to submit passports for all three of the parties' children and appointed an attorney to do a financial inventory of defendant's professional office.
On November 10, 2004, plaintiff filed a Hague application in the Family Matters Court in Israel, alleging that the parties' children were unlawfully brought to Israel and were being detained there. As a result of that filing, the Rabbinical Court postponed the hearing on the motion to dismiss for lack of jurisdiction until the Family Matters Court issued a ruling on plaintiff's Hague application.
On November 18, 2004, defendant filed an answer to plaintiff's complaint in the New Jersey divorce action, alleging among other things, that the court lacked jurisdiction because of the two actions that were pending in Israel. Further, defendant filed a notice of motion to dismiss on the same date, claiming that the New Jersey court lacked jurisdiction.
On January 16, 2005, a hearing was held on plaintiff's Hague application before Judge Jacob Cohen in the Family Matters Court. In an opinion dated March 13, 2005, Judge Cohen denied plaintiff's Hague application and awarded defendant counsel fees and court costs. In the Family Matters Court action, plaintiff argued that her consent to go to Israel was obtained by means of pressure and threats carried out by defendant and that she decided to go with the hope of rehabilitating the marriage and of saving the family unit. Plaintiff also argued that defendant's sole intent in going to Israel was to subject plaintiff to the authority of the Rabbinical Court and to prejudice her rights. Plaintiff went on to claim that her consent to go to Israel was obtained by defendant by means of deception and deceit and that if she had known of defendant's plans to file a divorce claim against her in the Rabbinical Court, she would never have gone to Israel with her children.
Judge Cohen concluded that plaintiff lacked credibility. The Family Matters Court found as a matter of fact that plaintiff decided to immigrate to Israel together with defendant to preserve her marriage and the family unit. Judge Cohen determined that plaintiff had made a free choice to move to Israel and that having made that choice, she went with the intention to settle there. The judge stated that there was no doubt as to both plaintiff and defendant's intentions to establish themselves permanently in Israel.
Based upon these factual findings, the Family Matters Court also found that there was no violation of plaintiff's custody rights with respect to the children since there had been mutual consent by the parents to transfer the "residential place of the minor." The court further concluded that plaintiff's consent to go to Israel with defendant and her children was her independent decision and was not the product of deceit. The judge decided that bringing the children to Israel and the continuation of their stay in Israel was legal since it was based on the consent of both parents and their mutual intention to immigrate to Israel. Consequently, plaintiff's Hague application was rejected.
After various submissions were made to the New Jersey court, the Chancery Division heard oral arguments on April 13, 2005, on defendant's motion to dismiss. Meanwhile, on August 3, 2005, plaintiff traveled back to the United States without her children and has lived in New Jersey ever since. In a written opinion dated March 27, 2006, the New Jersey trial court dismissed plaintiff's complaint for lack of jurisdiction on the grounds that plaintiff was not a bona fide resident of New Jersey one year prior to filing her complaint for divorce and that, therefore, New Jersey lacked jurisdiction. The trial court adopted Judge Cohen's factual findings, which rejected plaintiff's argument that her move to Israel was conditioned on the parties trying to make their marriage work and that because of this intention, she did not give up her New Jersey residence or domicile. The New Jersey trial court, therefore, afforded comity to the decision of the secular Israeli Family Matters Court, found that the parties effectively changed their domicile from New Jersey to Israel, and concluded that it lacked jurisdiction in this dispute. See N.J.S.A. 2A:34-10. On May 8, 2006, plaintiff filed an appeal from the March 27, 2006, decision.
We affirmed the New Jersey trial court's March 27, 2006, decision in an opinion filed on February 15, 2007. We held:
Given this unique factual situation [plaintiff not being a bona fide resident of New Jersey for one year prior to filing the New Jersey divorce action, but subsequently becoming a bona fide resident since April 3, 2005], we therefore affirm the trial court's order dismissing the complaint for divorce on grounds of mootness. We do not pass on the trial court's recognition of the Family Matter Court's judgment concerning domicile. We specifically acknowledge plaintiff's right to refile her complaint on establishing the one year bona fide residency required by N.J.S.A. 2A:34-10, and the concomitant right of both plaintiff and defendant to argue what, if any, recognition should be accorded to the Israeli Rabbinical Court's divorce decree as well as anything presented on this appeal. [Hirschkorn v. Hait, No. A-4573-05T5 (App. Div. Feb. 15, 2007) (slip op. at 12).]
Accordingly, on about February 26, 2007, plaintiff filed her second complaint for divorce in Bergen County. Defendant filed a motion to dismiss. Judge Torack presided over hearings on March 30, 2007, and April 5, 2007. On April 5, 2007, Judge Torack entered an order finding that "New Jersey does not have jurisdiction over the issue of custody under the UCCJEA, that Israel is the home state of the children, that the children are currently present in Israel, and that Israel has exclusive continuing jurisdiction to determine the custody issue . . . ." The order further stated that the parties are still litigating in Israel and that the Israeli courts have not entered a final judgment. In addition, the order stated that although Israel is a more convenient and appropriate forum to litigate, New Jersey has jurisdiction over the marital res, "since Plaintiff has been a bona fide resident of New Jersey for more than one year . . . ."
Therefore, the order dismissed all of plaintiff's requested relief for divorce, custody, child support, spousal support, equitable distribution and counsel fees, other than dissolution of the marriage, with prejudice under the doctrine of forum non conveniens and collateral estoppel. The trial court restrained plaintiff from litigating the other issues in New Jersey until a resolution of the issues is rendered in Israel. Thereafter, plaintiff will be permitted to move in New Jersey to determine if the final Israeli judgment will not be recognized because it violates principles of fundamental fairness or does not consider the best interests of the children. The trial court dismissed with prejudice plaintiff's tort claims against defendant and her claims to restrain transfers of certain business and personal assets as being barred by the applicable statutes of limitation, the doctrine of collateral estoppel, and the entire controversy rule.
Finally, the judgment of the Family Matters Court denying the return of the children under the Hague Convention on ...