May 19, 2008
TOBY GETMAN, PLAINTIFF-RESPONDENT,
THOMAS A. GETMAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1149-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 28, 2008
Before Judges Parrillo and Gilroy.
Defendant appeals from the August 4, 2006 order of the Chancery Division, Family Part, which, among other matters: 1) denied his motion to dismiss plaintiff's motion seeking to compel him to pay child support for the parties' three children; and 2) determined that he pay child support in an amount to be calculated using the New Jersey Child Support Guidelines, effective June 2, 2006.*fn1 The sole issue raised on appeal is whether defendant, a non-resident of New Jersey, was subject to in personam jurisdiction of the State at the time the trial court entered the two orders. Because we are satisfied that the trial court correctly determined that defendant was subject to the personal jurisdiction of this State, we affirm.
The procedural history and statement of facts are undisputed. On October 18, 1999, the parties were divorced pursuant to a consent divorce decree (CDD) entered in the Circuit Court of the Fourth Judicial Circuit, Duval County, Florida. The parties have three children: A.M.G., born in May 1986; D.A.G., born in April 1989; and D.J.G., born in August 1995. The CDD incorporated terms of the parties' property settlement agreement, which among other matters, designated plaintiff as the parent of primary residence and provided for defendant's parenting time; however, the CDD did not require defendant to pay child support, with the Florida court reserving jurisdiction to consider any future application for child support de novo.
On May 9, 2000, in anticipation of plaintiff relocating to California with the minor children, the parties entered into a consent order modifying the CDD, which addressed Florida's jurisdiction to decide future issues pertaining to the children. The amended order provided in pertinent part: "[b]y agreement of the parties, this Court shall continue to be the Court of proper jurisdiction for all issues regarding the minor children of the parties including visitation, custody, and support so long as the former Husband continues to reside within the jurisdiction of this Court . . . ." (emphasis added).
In April 2002, contrary to her intention of relocating to California, plaintiff moved to New Jersey with the children because of defendant's promise that if she did, he would relocate from Florida to the New York/New Jersey area. Several months later, defendant moved to Long Island, New York; then to Rochelle, New York; and subsequently to Edgewater, New Jersey, where he continued to reside for three years until he moved to California on October 21, 2005. While defendant resided in New Jersey, he exercised parenting time and interacted with his children.
On February 1, 2006, plaintiff docketed the Florida CDD with the Superior Court of New Jersey. On May 31, 2006, plaintiff filed a motion seeking to compel defendant to: 1) pay child support for the parties' three children; 2) reimburse plaintiff $5,178 for the college costs she had expended for their oldest son; 3) contribute toward their oldest son's future college costs and similar educational costs for their other two children when they reach college age; 4) reimburse plaintiff $3,083.30 for orthodontic expenses that she had expended for the children; 5) obtain life insurance in a minimum amount of $250,000, naming the children as irrevocable beneficiaries while they are un-emancipated; 6) pay one-half of the remaining co-pays or medical expenses of the children after plaintiff pays the first $250 per child each year; and 7) pay counsel fees and costs.
On June 12, 2006, plaintiff effected service of the motion papers on defendant by certified mail, return receipt requested, pursuant to Rule 4:4-4(b)(1). On July 10, 2006, defendant moved to dismiss plaintiff's motion for lack of personal jurisdiction. In support of his motion, defendant submitted a certification stating in pertinent part, that: 1) at the time plaintiff filed the motion for child support, he had not been a New Jersey resident and had not been present in New Jersey for more than six months;*fn2 2) he had no intention of returning to the State of New Jersey; 3) other than his relationship with plaintiff and his children, he has not had any other contact with the State of New Jersey; and 4) he had instructed his attorney to file an action in Florida, to modify, or otherwise, enforce the Florida divorce judgment.*fn3 In opposition to the motion, plaintiff certified that since defendant moved to California he had returned to New Jersey for the purpose of attending their oldest son's graduation from Burlington County College in June 2007.*fn4
On appeal, defendant argues that: "[t]he trial court committed reversible error in finding that it could exercise in personam jurisdiction over the plaintiff." Defendant contends that neither his past residency in New Jersey, nor his continued parenting contacts with the children who continue to reside in New Jersey, serve as a sufficient basis for New Jersey to exercise personal jurisdiction over him in this action. We disagree.
For an order compelling a parent to pay child support to be valid and enforceable, it must be founded on the premise that the court possesses adequate personal jurisdiction over the parent. Drobney v. Drobney, 146 N.J. Super. 317, 322 (App. Div. 1977). Actions to compel a non-resident parent to pay child support for children residing in this State are governed by the Uniform Interstate Family Support Act (UIFSA). N.J.S.A. 2A:4-30.65 to -30.123. N.J.S.A. 2A:4-30.68 provides means through which a court may obtain personal jurisdiction over a non-resident defendant:
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 non-resident 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.
The basis contained in Paragraph "g" of the statute refers "to the 'minimum contacts' analysis which provides a foundation for exercising this [S]tate's 'long-arm jurisdiction.'" Philipp v. Stahl, 344 N.J. Super. 262, 271 (App. Div. 2001) (citing Int'l Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945)), rev'd on other grounds, 172 N.J. 293 (2002). Accordingly, this State's only limitation on the exercise of long-arm jurisdiction over a non-resident defendant is that it be "consistent with due process of law." R. 4:4-4(b)(1). "'[D]ue process requires only that . . . if [the defendant] 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 notions of fair play and substantial justice.'" Lebel v. Everglades Marina, Inc., 115 N.J. 317, 322 (1989) (quoting Int'l Shoe Co., supra, 326 U.S. at 316, 66 S.Ct. at 158, 90 L.Ed. at 102).
Once a party challenges the court's exercise of personal jurisdiction over him or her, the burden rests on the proponent of the action to establish the jurisdiction. Reliance Nat'l Ins. Co. in Liquidation v. Dana Transp., Inc., 376 N.J. Super. 537, 546 (App. Div. 2005). In resolving the issue, the court is required to conduct a "case-by-case analysis of [the] defendant's relationship with the forum state" through the application of the "minimum contacts" test. Waste Mgmt., Inc. v. Admiral Ins. Co., 138 N.J. 106, 122 (1994). The court uses a two-prong analysis in determining whether it has personal jurisdiction over a non-resident defendant: "first, an examination of the nature of the contacts defendant has had with New Jersey and then a consideration [of] whether the exercise of jurisdiction comports with 'fair play and substantial justice,' i.e., is it reasonable in the overall context of the matter." Reliance Nat'l Ins. Co., supra, 376 N.J. Super. at 544 (quoting Lebel, supra, 115 N.J. at 328).
We have considered defendant's argument in light of the record and the applicable law. We are satisfied that the argument is without sufficient merit to warrant discussion in a full written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comment.
Plaintiff moved to New Jersey with her children in 2002, relying on defendant's representation that he would move to the New York/New Jersey area to be close to his children. Although he did not pay child support during the time he resided in New Jersey, he did exercise parenting time and interacted with the children, lending the children his fatherly moral support to the degree that the children expressed severe disappointment with him moving to California without prior notice. Moreover, defendant has continued his contacts with the children since moving to California, not only by returning to New Jersey to attend his oldest son's college graduation, but also by telephone and mail contact with both the children and plaintiff, including sending the children plane tickets to visit him in California. Under these contacts with the forum state, "defendant could hardly have been surprised at the possibility of being 'haled into court' in New Jersey." Philipp, supra, 344 N.J. Super. at 272 (quoting Waste Mgmt., Inc., supra, 138 N.J. at 120-21). This is especially so where the 2000 amendment to the CDD provided that Florida would only retain jurisdiction over issues concerning the children "so long as the [defendant] continues to reside within the jurisdiction of [Florida]." Both parties had long left the jurisdiction of Florida at the time this action was filed.