On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FV-07-1840-88.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and Collester.
Plaintiff Edna Bonsal, wife of defendant David Bonsal, appeals from the November 3, 2006 order of the Family Part continuing restraints imposed entered on March 14, 1998, pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-29(a). In addition to restraining David from the marital home, the 1988 order provided:
Based on negotiations between the parties, which included consideration of Husband's present circumstances and Wife's estimated needs, Husband shall pay Wife as support and maintenance the sum of three thousand dollars ($3,000) per month with the first payment due one week from the date of this Order, and on the first day of each month thereafter, and continuing until a further order is entered by the Court, either by consent of the parties or otherwise.
Approximately one year later on April 14, 1989, a further order entitled "Correction to Consent Order" was entered detailing the tax treatment of the support payments as alimony taxable to Edna and deductible to David. In September 1994, Edna submitted an application for enforcement of the support provisions of the 1988 and 1989 consent orders. David filed a cross-motion to terminate or reduce support. The result was another consent order, this one granting the application for enforcement and setting a payment schedule for David to satisfy the arrears of about $7,167.
In 1995 Edna moved to Ireland and she has resided there since that time with occasional visits to the United States. She certified she expected to return to the United States at some point and that it was always her intention to do so. Meanwhile, David relocated to Kansas in 1991 and has continuously resided there. Both parties stated that Edna flew to Kansas to be with David on several occasions at David's expense.
On April 13, 2005 David filed a complaint for divorce in the Johnson County, Kansas District Court. Edna answered and filed a motion in the Kansas court, to enforce the New Jersey support orders and for pendente lite support. David opposed and filed a cross-motion to dismiss Edna's motion on grounds Kansas did not have jurisdiction to enforce the New Jersey orders. An evidentiary hearing commenced on October 13, 2005, before Judge William O. Eisenhour, Judge of the Tenth Judicial District of the State of Kansas. Edna testified on direct examination and was partially cross-examined before the end of the court day. Although Judge Eisenhour directed the matter to be re-scheduled, the Kansas court records do not indicate that the hearing was continued.
Following oral argument on this appeal, information was supplied to indicate that Edna stipulated that Kansas had jurisdiction in the divorce action, and the case is currently active in the Kansas Tenth Judicial District. The Kansas court records indicate Judge Eisenhour will decide all issues including cause of action, Edna's claim for alimony, property distribution, and the enforceability of arrearages arising out of orders of the New Jersey Family Part.
Since the Kansas court has jurisdiction over the action for dissolution including all financial issues between the parties, we affirm only that portion of the November 3, 2006 order of the trial court continuing the restraints initially imposed on March 14, 1988. However, we reverse that portion of the order denying Edna's motion to fix arrears and voiding David's obligation of support since these matters are to be determined by the Kansas court.
Affirmed in part. Reversed ...