March 17, 2008
SARIT HIRSCHKORN, PLAINTIFF-APPELLANT,
JAY HAIT, INDIVIDUALLY, LAWRENCE STANLEY, JIM COSBY, VOC FREE.COM., INC., VOC FREE, INC., PPA., INC., CHARLES SCHWAB, INC., CITIBANK, INC., CSB COMMUNITY STATE BANK, AND LAKELAND BANK, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 March 13, 2005, was afforded comity.
On April 30, 2007, a judgment of divorce was entered by Judge Torack. The order states that plaintiff and defendant are to be divorced from the bonds of matrimony based upon the cause of action stated in the Complaint, which went unanswered by the Defendant, and the said parties and each of them be freed and discharged from the obligations thereof, and the marriage between them be and is hereby dissolved. All other custody, parenting and economic issues shall be disposed of in accordance with this court's order entered 3/30/07.
On May 15, 2007, plaintiff filed the present notice of appeal with this court, appealing from Judge Torack's March 30, 2007, and April 5, 2007, orders.
Subsequently, the Rabbinical Court issued a decision on May 17, 2007.*fn1 That court decided:
1. The parties must divorce. The wife must accept the "GET"*fn2 in a court in New York, at a date and time that they decided.
2. Due to the fact that the children have been with the father for a number of years now, and that there is a disconnect from the mother almost all together, and in light [of] everything that is in the file, the children will be in the father's custody. But, the court is ordering the father to take the children to a therapist in order to renew that relationship between the mother and the children. And, the father must report to the court every six months on the progress.
3. With regard to assets, the court will make a decision within 30 days from the acceptance of the GET.
Plaintiff argues that the trial court erred by not asserting jurisdiction over the issue of child custody. She also asserts that the Rabbinical Court's decision should not be followed because it violated plaintiff's due process rights, its determination was not based on the best interests of the children, and it violated plaintiff's right to travel freely.
Plaintiff also argues that the trial court erred by requiring final judgment by the court of last resort in Israel before the issues could be litigated in New Jersey. Plaintiff repeats her argument that the Rabbinical Court violated her right to travel. Furthermore, plaintiff argues that the trial court, in essence, "coerc[ed] the Plaintiff to surrender to and litigate her divorce issues under the jurisdiction of a foreign religious court against her wishes and in violation of her right to freedom of religion under the First Amendment."
Plaintiff further argues that the trial court erred by determining that Israel is the more convenient forum for the parties to litigate their divorce issues. Plaintiff asserts that the best interests of the children and public policy require New Jersey to assert its jurisdiction. Plaintiff supports her argument by claiming that defendant will not be inconvenienced by litigating in New Jersey.
Plaintiff's final argument is that her action is not barred by collateral estoppel or the statute of limitations. Plaintiff claims that collateral estoppel is inapplicable because it would result "in great injustice against Plaintiff and her children, all in contravention of New Jersey's public policy." Furthermore, plaintiff argues that the Hague remedies are not exclusive and, therefore, plaintiff is not estopped from pursuing kidnapping claims against defendant. Plaintiff also claims that counts one through four of her complaint should not have been dismissed "because tolling of the limitation period effectuates the legislative purpose of the statute."
Defendant argues that the trial court properly exercised its discretion in dismissing plaintiff's complaint based on the doctrine of forum non conveniens. In addition, defendant argues that Israel has jurisdiction over all of the custody issues and is the more convenient forum because defendant and children have a closer connection to Israel and the majority of potential witnesses and relevant evidence is in Israel. Furthermore, defendant argues that the trial court properly found that deferring to the Israeli court's jurisdiction did not violate New Jersey public policy.
Defendant also asserts that the trial court properly exercised its discretion in requiring plaintiff to wait until the Israeli court of last resort had issued a final judgment before litigating in New Jersey.
Finally, defendant argues that the trial court properly dismissed the second through fifth counts of plaintiff's complaint because they are barred by the statute of limitations, and in accordance with the entire controversy doctrine should be litigated in Israel We turn first to plaintiff's argument that the trial court erred in not exercising its jurisdiction over the parties' child custody issue.
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), N.J.S.A. 2A:34-53 to -95, became effective December 13, 2004. Its predecessor, the Uniform Child Custody Jurisdiction Act (UCCJA), N.J.S.A. 2A:34-28 to -52, was repealed, effective December 13, 2004.*fn3 Its replacement, the UCCJEA should be interpreted so as to avoid jurisdictional competition and conflict and require cooperation with courts of other states as necessary to ensure that custody determinations are made in the state that can best decide the case. Although the UCCJEA was promulgated to refine and improve upon the UCCJA, it retains the central purposes of the prior act. UCCJEA, supra, § 101, comment at 657 (stressing that the UCCJEA should be interpreted according to the purposes of the UCCJA and explaining that Section 1 of the UCCJA, which stated the purposes of that act, was omitted to conform with the format of more recent uniform laws). Those central purposes include avoidance of jurisdictional competition and conflict and promotion of cooperation between courts to ensure that custody determinations are rendered by a court of the state that "can best decide that case. . . ." Ibid. (quoting UCCJA § 1(a)(2), 9 (Part IA) U.L.A. 649-54 (1999)); accord N.J.S.A. 2A:34-29 (repealed with New Jersey's UCCJA when that act was replaced with the NJUCCJEA, L. 2004, c. 147, § 44). [Griffith v. Tressel, 394 N.J. Super. 128, 138-39 (App. Div. 2007).]
The UCCJEA explicitly treats foreign nations as states for the purpose of this act, except when "the child custody law of a foreign country violates fundamental principles of human rights or does not base custody decisions on evaluation of the best interests of the child." N.J.S.A. 2A:34-57.*fn4
N.J.S.A. 2A:34-65 enumerates the circumstances where it would be proper for New Jersey to be the state of initial jurisdiction in a child custody case:
a. Except as otherwise provided in section 16 of this act [2A:34-68], a court of this State has jurisdiction to make an initial child custody determination only if:
(1) this State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State;
(2) a court of another state does not have jurisdiction under paragraph (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under section 19 or 20 of this act [2A:34-71 and 2A:34-72] and:
(a) the child and the child's parents, or the child and at least one parent or a person acting as a parent have a significant connection with this State other than mere physical presence; and
(b) substantial evidence is available in this State concerning the child's care, protection, training and personal relationships;
(3) all courts having jurisdiction under paragraph (1) or (2) of this subsection have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody of the child under section 19 or 20 of this act; or
(4) no state would have jurisdiction under paragraph (1), (2) or (3) of this subsection.
b. Subsection a. of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this State.
c. Physical presence of, or personal jurisdiction over, a party or a child is neither necessary nor sufficient to make a child custody determination.
d. A court of this State may assume temporary emergency jurisdiction in accordance with section 16 [N.J.S.A. 2A:34-68] of this act.
At the time that the Israeli court asserted jurisdiction, both the parents and the children were living in Israel, their "home state." Therefore, Israel had jurisdiction under N.J.S.A. 2A:34-65(a)(1). Under (a)(2) and (a)(3), Israel had jurisdiction and did not decline to exercise it. Lastly, (a)(4) is inapplicable because Israel did have and asserted jurisdiction. Furthermore, N.J.S.A. 2A:34-68 is inapplicable based upon the facts in the record.
With respect to plaintiff's argument that the Israeli Rabbinical Court's child custody determination violated her due process rights, was not based on the best interest of the children, and violated her fundamental rights to travel, we will address those issues in our discussion of the trial court's decision to afford comity to the Israeli Court's decisions.
Several years ago, we discussed comity as applied to international courts:
Comity is the recognition that one nation gives to the "legislative, executive or judicial acts of another nation." Hilton v. Guyot, 159 U.S. 113, 164, 16 S.Ct. 139, 143, 40 L.Ed. 95, 108 (1895). It is more than a "mere courtesy" but less than an "absolute obligation." Fantony v. Fantony, 21 N.J. 525, 533 (1956). It is "grounded in the policy of avoiding conflicts in jurisdiction, . . . and the general principle that the court which first acquires jurisdiction of an issue has precedence, in the absence of special equities." Ibid. [Exxon Research and Engineering Co. v. Industrial Risk Insurers, 341 N.J. Super. 489, 503 (App. Div. 2001).]
The flexible principle of comity is "dependent upon the 'special equities' of the case, the existence of which are left to the sound discretion of the trial court . . . ." Id. at 505. "The recognition of a judgment of a foreign court under the principle of comity is subject generally to two conditions: (1) that the foreign court had jurisdiction of the subject matter; (2) that the foreign judgment will not offend the public policy of our own State." Fantony, supra, 21 N.J. at 533 (citations omitted); MC v. MC, 215 N.J. Super. 132, 138 (Ch. Div. 1986).
Despite plaintiff's assertion that she refused to submit to the jurisdiction of the Rabbinical Court because there are civil courts within Israel, defendant was correct in filing his case in Rabbinical Court. That court has exclusive jurisdiction in regard to marriage and divorce of Jews in Israel.*fn5 See Natan Lerner, The Foundations and Frontiers of Religious Liberty, 21 Emory Int'l L. Rev. 239, 261 (2007). Contrary to plaintiff's assertion, the civil courts in Israel, while they do exist, have no jurisdiction over divorce matters between Jews. The Rabbinical Jurisdiction (Marriage and Divorce) Law, 5713-1953 (1953), art. 2. There is extensive evidence in the record that both plaintiff and defendant practice Orthodox Judaism, that the parties were married in Israel, and that the parties moved to and were domiciled with their family in Israel. Therefore, the issue of marriage would be properly before the Rabbinical Court.
In addition, despite plaintiff's claims that she never submitted to the jurisdiction of the Rabbinical Court, the record shows that she did, in fact, submit to the jurisdiction of the Rabbinical Court. Plaintiff is an Israeli citizen, who chose to get married in Israel. Plaintiff and her entire family moved to Israel. While plaintiff claims that she was coerced into the move, we must defer to the trial court's factual determination that she moved of her own volition. As an Israeli citizen, married in Israel, living in Israel, and practicing Judaism, plaintiff submitted herself to the jurisdiction of the Rabbinical Court. See Elmora Hebrew Center, Inc. v. Fishman, 125 N.J. 404 (1991) (finding that parties were bound by the religious tribunal's decision due to their agreement to submit their disputes to that body for its adjudication).
New Jersey courts have previously found that orders of the Rabbinical Court should be enforced:
There is no contention that the Israeli courts lacked jurisdiction over the subject matter or the parties. The parties were married in Israel and resided in Israel, and the defendant was represented by counsel before the Rabbinical Court as well as before the Appeals Court. Furthermore, there is no suggestion that the Israeli judgment was procured by fraud. See Mercandino v. Devoe and Raynolds Inc., 181 N.J. Super. 105 (App. Div. 1981). [Schwarcz v. Zik, 273 N.J. Super. 78, 83 (Ch. Div. 1993).]
The identical criteria are present here and Schwarcz's sound reasoning extends to this case as well.
Next, "the court turns its focus on whether or not the enforcement of the foreign judgment will offend the public policy of New Jersey." Schwarcz, supra, 273 N.J. Super. at 83. The Rabbinical Court did not violate our public policy. First, contrary to plaintiff's assertions, the Rabbinical Court did apply the "best interests of the child" test, although it did not use those very words. The court noted, in awarding custody to the father, that the children have been with their father exclusively for a number of years while there was little contact with their mother during that time. The court considered the record as a whole to determine that the children should be in the care of the father. As evidence that the court acted to further the best interests of the children, the court ordered that the children see a therapist to "renew that relationship between mother and the children." To ensure compliance, defendant was directed to report the children's progress to the court every six months.
Second, plaintiff argues that the Israeli court failed to provide any notice to plaintiff prior to "granting Defendant . . . full temporary child custody." She cites MC, supra, 215 N.J. Super. 132, and N.J.S.A. 2A:34-51.*fn6 In MC, the New Jersey court found an Irish court's order null and void because "the lack of notice as ordered by that Court not only violates that Court's order, but is also contrary to the enunciated policy of N.J.S.A. 2A:34-51." MC, supra, 215 N.J. Super. at 139. The New Jersey court upheld a second Irish court order when the mother "had been noticed and entered an appearance through counsel." Ibid. Judge Torack found that plaintiff "had been given fair notice of the Israeli proceeding similar to New Jersey procedural rules."
Based on information that plaintiff "and her lover have conspired maliciously to elope with [defendant's] children abroad, so that the [plaintiff] can . . . live with her lover," the Rabbinical Court granted defendant's request of temporary custody "until the hearing of the permanent court which is to grant the final decision." Based on the information before that court, it appears that it granted the ex parte motion to prevent the mother from absconding abroad with the children. The Rabbinical Court found that defendant made a clear showing of irreparable harm likely to result before notice could be given. Our law and rules also permit ex parte injunctions in such emergency circumstances. R. 4:52-1(a); See Sherman v. Sherman, 330 N.J. Super. 638, 643-44 (Ch. Div. 1999). Judge Torack found that the Israeli procedure was similar to New Jersey's order to show cause where a court may "grant emergent temporary relief and assign a return date shortly thereafter to give all parties an opportunity to appear and be heard."
In addition, plaintiff's claims that her right to travel was infringed is without merit. There is no suggestion that the travel prohibition was improper in Israel, and New Jersey may exercise similar prohibitions when necessary. "The purpose of a writ of ne exeat is to compel a defendant's physical appearance in court when required." Tedards v. Auty, 232 N.J. Super. 541, 548 (App. Div. 1989) (quoting Perlmutter v. DeRowe, 58 N.J. 5, 16 (1971)). The purpose of the writ of ne exeat, derived from the Roman law writ of ne exeat republica ("Let him not go out from the Republic"), "was therefore one of restraint to maintain the presence of the defendant within the state, for the purpose of securing the practical application of legal process." Foote v. Foote, 102 N.J. Eq. 291, 293 (E. &. A. 1928). It appeared from the extensive proofs submitted to the Rabbinical Court by defendant that plaintiff intended to flee the jurisdiction. Therefore, the court took steps to prevent plaintiff from leaving the country before the hearing was held.*fn7
In Bass v. DeVink, we held that in "[a]pplying principles of comity, we have long adhered to the general rule that the court first acquiring jurisdiction has precedence absent special equities." 336 N.J. Super. 450, 455 (App. Div.), certif. denied, 168 N.J. 292 (2001); Innes v. Carrascosa, 391 N.J. Super. 453, 492 (App. Div. 2007).
[This court] also laid a framework for analyzing questions involving the filing of similar litigation in two separate jurisdictions:
The defendant bears the initial burden of establishing three predicate facts:
(1) there is a first-filed action in another state,
(2) both cases involve the same parties, the same claims, and the same legal issues, and
(3) the plaintiff will have the opportunity for adequate relief in the prior jurisdiction. [Innes, supra, 391 N.J. Super. at 492 (quoting Bass, supra, 336 N.J. Super. at 456).]
Here, it is undisputed that defendant first filed in Israel. Also, the parties are the same and the legal issues, such as divorce, child custody, and support, are identical. In addition, defendant has shown that plaintiff would have the opportunity for adequate relief in Israel. In fact, plaintiff is required to accept a "get," the divorce that she seeks. New Jersey courts have held before that Israeli courts, particularly Rabbinical Courts, can provide adequate relief. See Schwarcz, supra, 273 N.J. Super. at 83. Accordingly, there is no reason why the Israeli court's decisions should not be afforded comity pursuant to the analysis set forth in Innes.
Plaintiff argues that the trial court erred in determining that Israel is a more convenient forum for the parties to litigate their matrimonial issues. "The doctrine of forum non conveniens is 'firmly embedded in the common law of this State'". Kurzke v. Nissan Motor Corp., 164 N.J. 159, 164 (2000) (quoting Civic S. Factors Corp. v. Bonat, 65 N.J. 329, 332 (1974)). "'Although phrased in a variety of ways, the essence of the doctrine is that a court may decline jurisdiction whenever the ends of justice indicate a trial in the forum selected by the plaintiff would be inappropriate.'" Id. at 164-65 (quoting D'Agostino v. Johnson & Johnson, Inc., 225 N.J. Super. 250, 259 (App. Div. 1988) aff'd, 115 N.J. 491 (1989)). "The doctrine is equitable in nature and, therefore, decisions concerning its application ordinarily are left to the sound discretion of the trial court. An appellate court should not substitute its judgment for that of a trial judge unless there is a showing of clear abuse of that discretion." Id. at 165 (internal quotations omitted.)
Our careful review of the record in this regard shows no abuse of discretion by the trial court. The parties took up residency in Israel and have for many years enjoyed dual citizenship of both Israel and the United States. The children have now been in Israel for almost four years. There is family in Israel and the action was first instituted there. We can see no reason to disturb the trial court's reasonable exercise of discretion in this regard.
Plaintiff argues that her action with respect to the custody of her children is not barred by collateral estoppel. The trial court appropriately outlined the elements of collateral estoppel as set forth in Brae Associates v. Park Ridge Borough, 17 N.J. Tax 187 (Tax 1998). We agree with the trial court's application of the doctrine. It applies clearly to the issue of custody of the children with the caveat set forth in paragraph four of the trial court's April 5, 2007, order. That order particularly provided that after the divorce issues, including custody, are resolved by a final unappealable judgment in Israel, plaintiff is permitted to file a motion to address the issue of whether the final Israeli judgment should not be recognized in New Jersey because it violates basic principles of fundamental fairness or that the final custody decision should not be recognized because the Israeli court did not consider the best interests of the children.
Plaintiff also argues that the trial court's dismissal of counts one, two, three, and four of plaintiff's complaint as barred by the statue of limitations was error. We note that the trial court's order dismissed only the second, third, fourth, and fifth counts, as barred by the applicable statute of limitations. Moreover, we note that the second count, assault and battery, the third count, reckless and intentional infliction of emotional distress, and the fourth count, battered woman's syndrome, all sound in the nature of marital torts. The fifth count seeks injunctive relief to preserve business records, assets, and various other properties and does not sound in tort for which a statute of limitations would apply.
We are not aware of nor have the parties enlightened us as to whether Israeli courts in a matrimonial action recognize and entertain marital tort claims as we do. See Tevis v. Tevis, 79 N.J. 422 (1979). To the extent that an Israeli court will entertain either directly or in conjunction with a matrimonial action a claim for marital torts, those claims should, consistent with a trial judge's determination as to comity, be heard by an Israeli court. However, to the extent that the Israeli courts do not recognize a cause of action for marital torts, we find that those claims are not barred by the statute of limitations because plaintiff substantially complied with the statute of limitations by filing similar claims in her 2004 marital complaint. See Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 239-40 (1988). Therefore, we reverse the trial court's order dismissing counts two, three, and four of the complaint on statute of limitations grounds. To the extent they may be brought in Israel, they should be. To the extent Israeli law does not recognize such claims, the statute of limitations shall be tolled until such time as there is a final judgment from the Israeli court dealing with the other matrimonial matters. At that time, pursuant to the trial court's order of April 5, 2007, the marital tort claims may be brought in New Jersey, along with whatever motions are recognizable under paragraph four of the trial court's order.
The entire controversy doctrine is "an equitable preclusionary doctrine whose purpose is to encourage comprehensive and conclusive litigation determinations, to avoid fragmentation of litigation, and to promote party fairness and judicial economy and efficiency . . . ." Pressler, Current N. J. Court Rules, comment 1 on R. 4:30A (2008). Those laudable goals and purposes may not be brought to fruition in this case unless the Israeli courts entertain actions for marital torts. Therefore, to the extent that the trial court barred the marital tort claims under the entire controversy doctrine, given the absence of information as to whether such claims may be raised in an Israeli matrimonial action, we are constrained to reverse that portion of the order, as well. As stated above, those claims may be raised here after a final resolution in the Israeli courts in accordance with the trial court's April 5, 2007, order. If, however, it is later demonstrated that the Israeli courts entertain such actions, and plaintiff did not avail herself of that opportunity, we do not preclude the doctrine being raised in the future as a bar to pursuing those actions here.
To the extent that we have not addressed specifically any other arguments raised by plaintiff, we find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Accordingly, the thoughtful and well-reasoned opinion of the trial court is affirmed in all respects except that it is reversed with respect to the dismissal of counts two, three, and four on the basis of the statute of limitations and the entire controversy doctrine.