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Greely v. Greely

March 19, 2008


On certification to the Superior Court, Appellate Division.


(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

This appeal presents limited questions concerning the procedures to be followed in seeking a voluntary dismissal of a complaint for divorce or, in the alternative, dismissal by the plaintiff of that complaint under the doctrine of forum non conveniens.

The parties were married in Omaha, Nebraska, in 1989. Approximately six years later, they moved with their infant daughter to Summit, New Jersey. A son was born in 1997. In 2003, defendant, having lost his job in New Jersey, secured employment in California that required his presence there at intervals for periods of up to three months. He maintained a small apartment there and commuted between California and New Jersey, spending significant blocks of time in New Jersey as a "stay-at-home dad." The marriage deteriorated and, in May 2006, plaintiff and defendant separated. Plaintiff and the children remained in New Jersey where the children attended school, maintained their friends and social support structure, and received medical attention. In short, their lives were in New Jersey.

On June 13, 2006, plaintiff filed a verified complaint for divorce in the Chancery Division seeking, among other relief, joint legal custody but designating plaintiff as the parent of primary residence, "reasonable" parenting time for defendant, and child support from defendant. After receiving consent for an extension of time, defendant filed an answer seeking judgment dismissing the complaint, an award of fees and costs, and other relief. The parties engaged in discovery and a court-mandated early settlement panel conference. Settlement efforts were unavailing, and, on February 1, 2007, the parties were ordered to mediate their dispute.

Meanwhile, plaintiff relocated with her children to Omaha, Nebraska. Unable to schedule the court-ordered mediation, defendant moved for an order directing mediation and an evaluation of the children. In response, on March 28, 2007, plaintiff filed a unilateral stipulation of dismissal without prejudice. The very next day, plaintiff filed a complaint for divorce in Nebraska seeking the same relief she sought in her New Jersey divorce complaint. Defendant's New Jersey counsel asserted that plaintiff's purported unilateral "stipulated" dismissal was a nullity, and requested that plaintiff withdraw it. Defendant moved to reinstate the New Jersey divorce action and to enjoin plaintiff from proceeding with the Nebraska action.

In a thoughtful, unpublished opinion, the trial court found that the stipulation was filed in violation of Rule 4:37-1, vacated the dismissal, and ordered the matter restored to the active trial calendar. The trial court noted that Rule 4:37-1(a) provides that after the filing of a responsive pleading, an action may be voluntarily dismissed upon stipulation of dismissal signed by all parties. Further, Rule 4:37-1(b) provides that where a defendant opposes dismissal, then an action can be dismissed only by leave of court. The trial court also rejected plaintiff's suggestion that the New Jersey complaint for divorce be dismissed under the doctrine of forum non conveniens, explaining that plaintiff, having chosen New Jersey as the forum where the original complaint was filed, should be estopped from arguing forum non conveniens. In addition to ordering restoration of the matter to the active trial calendar, the trial court enjoined plaintiff from continuing the Nebraska divorce complaint.

Plaintiff sought leave to appeal and the Appellate Division granted the application and summarily reversed the trial court's order. According to the Appellate Division, "New Jersey has no further interest in the litigation since both parties have moved out of State, the children now reside in Nebraska and neither party owns property in this State. This Court granted defendant's petition for certification.

HELD: Voluntary dismissals in the Family Part of the Chancery Division are governed by Rule 4:37-1 and plaintiff's stipulation of dismissal failed to follow the dictates of that Rule. In addition, under the Uniform Child Custody Jurisdiction and Enforcement Act, a motion to dismiss a child custody matter on inconvenient forum grounds may be made by any party, by the court on its own motion, or by another state's court.

1. Rule 4:37-1(a) permits only two processes for the voluntary dismissal of cases: unilateral dismissal by the plaintiff before service by the adverse party of an answer or motion for summary judgment, and consensual dismissals by filing a stipulation of dismissal signed by all parties. Here, defendant had filed an answer to the compliant, meaning a unilateral dismissal was unavailable to plaintiff. Short of filing a motion to dismiss her action pursuant to Rule 4:37-1(b), plaintiff's sole avenue for relief was to secure a consensual dismissal by stipulation signed by all parties to the action. That plaintiff failed to do. Plaintiff's purported unilateral stipulation of dismissal was and remains a legal nullity. (pp. 6-8)

2. The trial court also rejected plaintiff's application to dismiss the divorce complaint on forum non conveniens grounds. 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. The Court is confronted with an anomalous circumstance here: plaintiff, who originally filed her complaint in what was then a convenient forum (New Jersey) but who has since relocated elsewhere (Nebraska) asserts that it is now inconvenient for her to prosecute her claim here, and, hence, it should be dismissed so as to allow her to proceed in her new forum state. The Court cannot accept the notion that the doctrine can be triggered solely by a plaintiff's after-the-fact choices. As a practical matter, acceptance of plaintiff's assertions that her original forum choice is now inconvenient simply because she has elected to relocate elsewhere could open the door to crass forum shopping. Plaintiff's personal electionto relocate, standing alone, cannot drive the machinery of the judiciary. To the extent plaintiff's application addresses the non-custody allegations of her complaint, the Court finds no abuse of discretion in the trial court's rejection of plaintiff's forum non conveniens claim. (pp. 8-11)

3. Plaintiff's application for dismissal based on a claim of inconvenient forum included her request for the dismissal of the parties' child custody claims. Child custody disputes in New Jersey are governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), N.J.S.A. 2A:34-53 to -95. The UCCJEA provides that a court in this State that has jurisdiction under the act to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. N.J.S.A. 2A:34-71(a). It also provides that "[t]he issue of inconvenient forum may be raised upon the court's own motion, request of another court or motion of a party." Thus, the determinations sought in plaintiff's complaint are subject to inconvenient forum challenges under the UCCJEA regardless of the identity of the movant. Such challenges nevertheless must adhere to the statutory standards of N.J.S.A. 2A:34-71 and must fulfill the overarching purposes of the UCCJEA to provide for cooperative and seamless juridical supervision of child custody controversies. Because plaintiff did not file an application for dismissal pursuant to N.J.S.A. 2A:34-71, the Court does not address whether this matter satisfies the standards set forth in that provision. (pp. 11-12)

The judgment of the Appellate Division is REVERSED, the trial court's amended order is REINSTATED, and the cause is REMANDED to the ...

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