June 25, 2008
K.E.P., NOW KNOWN AS K.M.E, PLAINTIFF-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2314-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 27, 2008
Before Judges Parrillo, Gilroy and Baxter.
Defendant M.P. appeals from a June 26, 2007 sua sponte order of the trial court that dismissed a pending notice of motion and cross-motion scheduled for July 6, 2007, on the basis that New Jersey courts no longer retained jurisdiction of the matter under New Jersey's Uniform Child Custody Jurisdiction and Enforcement Act (NJUCCJEA), N.J.S.A. 2A:34-53 to -95, because the parties' daughter has resided out of state for over five years. We reverse and remand.
Defendant and plaintiff, now known as K.E., were previously married and had one daughter. The child was born in New York City on July 7, 2001, but spent her first thirteen days out of the hospital with her parents in their home in East Brunswick, New Jersey. On July 26, 2001, plaintiff left defendant and took the couple's daughter back to New York where the two have resided ever since.
On August 1, 2001, plaintiff filed a petition for custody in Kings County (Brooklyn), New York. On August 8, 2001, she also filed for and obtained a domestic violence temporary order of protection against defendant from the same court. Defendant and his parents allegedly attempted to remove the couple's daughter from plaintiff's parents' home in New York, causing plaintiff to seek the aid of the courts. Plaintiff allowed the order of protection to expire on December 31, 2002.
On August 2, 2001, defendant*fn1 filed an application for a writ of habeas corpus in the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County. Plaintiff opposed the motion and, on August 22, 2001, cross-moved to have defendant's pending action in New Jersey dismissed and jurisdiction assigned to New York, where she and the parties' daughter resided.
Defendant's motion and plaintiff's cross-motion were heard on August 30, 2001, at which time the Family Part issued an order finding New Jersey "has subject matter jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA) to decide the issues of custody and visitation with respect to the parties['] daughter," and accordingly denied plaintiff's cross-motion to dismiss. The order specifically declared that "New York does not have Subject Matter Jurisdiction" to decide which parent should have custody. The judge also granted defendant supervised weekly parenting time.
Two months later, both parties and their respective attorneys appeared in the family court in Brooklyn and were informed that New York courts did not have jurisdiction over the matter. Plaintiff acknowledges that she thereafter withdrew her New York action, but insists that defendant threatened to seek sanctions in the New Jersey courts if she did not do so.
After the New Jersey court assumed jurisdiction, the Family Part appointed six different experts who conducted psychological evaluations of the parties and interviewed their daughter. The first was Dr. Robert Rosenbaum, who was appointed on August 31, 2001, to evaluate whether defendant posed a threat to his daughter if granted unsupervised parenting time. Later, plaintiff accused defendant of being verbally and emotionally abusive to the child and of bathing her while the two were naked in the bathtub together. The judge ordered that these abuse allegations be reported to DYFS. The agency conducted an investigation, did "not substantiate sexual abuse," but recommended family counseling. The third expert the judge appointed was Susan Arbeiter, Ph.D., who was appointed on November 19, 2003, "to therapeutically counsel [the parties] as to any child related issues that remain unresolved."
Linda Schofel was appointed on February 24, 2004, as the child's guardian ad litem. From February 2004 through May 2005, Schofel investigated plaintiff's allegations of abuse. Ultimately, she filed a comprehensive 191-page report in May 2005 to assist the judge in making various custody and parenting time determinations. Notably, she concluded that "New Jersey should retain jurisdiction of this matter so long as Mr. Parnes resides in this State." Dr. Sharon Ryan Montgomery, a specialist in child sexual abuse, was appointed on April 12, 2004, to contribute to the evaluation of plaintiff's sexual abuse allegations. After administering a series of psychological tests, Dr. Montgomery concluded that plaintiff's accusations against defendant were unfounded, but not done on purpose, instead stemming from plaintiff's anger and distrust toward defendant. Dr. Montgomery recommended that a parenting coordinator be appointed by the court and that defendant's visits with the child be unsupervised. Consequently, overnight parenting resumed.
The fifth expert, Dr. Edwin Rosenberg, Ph.D., was appointed on September 14, 2005, as parenting coordinator for a term of two years, to end in November 2007. The parties were ordered to contact Dr. Rosenberg to settle custody disputes ranging from the dates, times and places of transition between households to how to allocate healthcare reimbursements for the parties' daughter. The parties liberally availed themselves of Dr. Rosenberg's services, asking him for multiple recommendations regarding disputes over such issues as summer camps, summertime parenting schedules, school year parenting schedules, school holidays, Jewish holidays, after-school pick up, evening drop-off times at the end of the weekend, pick-up times, attendance at family parties, telephone calls, weekly dinners and baptism.
During this time, plaintiff filed for divorce and requested sole custody of the child in the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County. A dual judgment of divorce was entered on July 22, 2004. Issues of child custody were left unresolved pending trial.
A six-day child custody trial took place in Middlesex County in July and August 2005. In a November 16, 2005 order, the judge awarded: primary residential custody of the parties' daughter to plaintiff; joint legal custody to both parties; and parenting time to defendant. The November 16, 2005 order incorporated the earlier order that had appointed Dr. Rosenberg as parenting coordinator. Between 2001 and 2007, the New Jersey Family Part also heard and decided numerous child support motions.
On May 22, 2007, defendant filed the motion that resulted in the June 26, 2007 sua sponte order that is the subject of this appeal. In particular, on May 22, 2007, defendant filed a motion to enforce litigant's rights in which he requested that: Dr. Rosenberg's tenure as parenting coordinator be extended; some of Dr. Rosenberg's recommendations be implemented; and he be given additional parenting time. Plaintiff opposed the motion and also cross-moved on June 15, 2007, for enforcement of the original child custody order, changes in parenting time, non-renewal of Dr. Rosenberg as parenting coach or appointment of a parenting coach in New York, permission to baptize and raise the child in the Catholic faith, disclosure of defendant's finances and an upward adjustment in child support.
On June 26, 2007, the judge sua sponte dismissed the pending notice of motion and cross-motion. In its entirety, the judge's opinion stated the following:
[t]he pending Notice of Motion and Cross-Motion, currently scheduled for July 06, 2007, are hereby DISMISSED. Any relief requested by Plaintiff or Defendant must be sought in New York. This [c]court no longer has jurisdiction over the matter pursuant to the U.C.C.J.E.A. The parties' child has not resided in the State of New Jersey for over five (5) years. Accordingly, under the U.C.C.J.E.A., the child's home state is New York. As such, New Jersey no longer retains jurisdiction over this matter.
On appeal, defendant argues that the Family Part incorrectly dismissed his pending motion and plaintiff's pending cross-motion. He maintains that in light of the particular facts here, the NJUCCJEA requires that New Jersey retain "exclusive, continuing jurisdiction" over all of the parties' child custody issues. Plaintiff disagrees and argues that: New York is the child's home state and has been for more than seven years; the expert reports that have been prepared in New Jersey can be utilized in New York; and that the surrender of New Jersey's jurisdiction was proper.
Our analysis of the June 26, 2007 sua sponte order is de novo. The trial court's decision is not entitled to deference because it was based on the judge's interpretation of the law, and not the facts of the case. Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Ibid.
The NJUCCJEA was signed into law on September 14, 2004, and became effective ninety days after its enactment. The law is modeled on the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and replaces the former New Jersey Uniform Child Custody Jurisdiction Act (NJUCCJA). "The NJUCCJEA 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." Griffith v. Tressel, 394 N.J. Super. 128, 138 (App. Div. 2007).
At the time the August 31, 2001 order declared that New Jersey, not New York, had subject matter jurisdiction over the parties and their child, the NJUCCJA was still in effect. In relevant part, the statute provided that:
a. The Superior Court of the State of New Jersey has jurisdiction to make a child custody determination by initial or modification decree if:
(1) This State (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child's home state within 6 months before commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this State[.] [N.J.S.A. 2A:34-31(a)(1) (repealed Dec. 13, 2004, by L. 2004, c. 147, § 44).]
The parties agree that because their daughter was less than six months old when plaintiff removed her to New York, N.J.S.A. 2A:34-31 (a)(1) mandated that the child's home state was the state in which she resided from birth with either of her parents, which was New Jersey. They likewise agree that the New Jersey courts correctly assumed jurisdiction of this custody dispute in 2001 and had jurisdiction to render an initial custody determination in 2005.
Defendant's most recent motion, filed May 22, 2007, and plaintiff's cross-motion, filed June 15, 2007, are the underlying bases for the current appeal; therefore, the provisions of the NJUCCJA are no longer applicable, and we will analyze the parties' contentions in light of the NJUCCJEA.
Pursuant to the NJUCCJEA, once a state renders an initial custody determination, that state gains "exclusive, continuing jurisdiction" over the custody dispute. N.J.S.A. 2A:34-66(a). However, the jurisdictional analysis is not over when New Jersey is deemed a child's home state because neither the statute nor New Jersey law requires "blind obedience" to home state jurisdiction. In re Menq, 376 N.J. Super. 641, 644 (Ch. Div. 2004). When the "'relationship between the child and the [parent] remaining in the State with exclusive, continuing jurisdiction' . . . becomes too attenuated, 'exclusive, continuing jurisdiction' is lost." Griffith, supra, 394 N.J. Super. at 145 (quoting UCCJEA, § 202 comment 1, at 674). Accordingly, we must decide "whether, during the time between the initial order and the filing of the motion for modification, circumstances have changed so as to divest this state of [its] jurisdiction." Id. at 140.
The relevant portion of the NJUCCJEA is N.J.S.A. 2A:34-66(a), which provides:
a. Except as otherwise provided in section 16 of this act [2A:34-68], a court of this State that has made a child custody determination consistent with section 13 or 15 of this act [2A:34-65 or 2A:34-67] has exclusive, continuing jurisdiction over the determination until:
(1) a court of this State determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this State and that substantial evidence is no longer available in this State concerning the child's care, protection, training, and personal relationships; or
(2) a court of this State or a court of another state determines that neither the child, nor a parent, nor any person acting as a parent presently resides in this State. [N.J.S.A. 2A:34-66(a).]
Defendant has resided in East Brunswick since shortly before his daughter's birth; therefore, N.J.S.A. 2A:34-66(a)(2) is inapplicable. Consequently, if New Jersey has lost jurisdiction, it can only be as a result of N.J.S.A. 2A:34-66(a)(1), which provides that New Jersey's jurisdiction is lost if the child and one parent no longer have a "significant connection" to this State and "substantial evidence" concerning the child's well-being is "no longer available" here. N.J.S.A. 2A:34-66(a)(1).
Even if the application of those two factors does not warrant a surrender of New Jersey's jurisdiction, New Jersey is entitled nonetheless to relinquish its jurisdiction if New Jersey has become an inconvenient forum. N.J.S.A. 2A:34-71.
That statute provides, in relevant part:
a. A court of this State that has jurisdiction under this 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. The issue of inconvenient forum may be raised upon the court's own motion, request of another court or motion of a party.
b. Before determining whether it is an inconvenient forum, a court of this State shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:
(1) whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(2) the length of time the child has resided outside this State;
(3) the distance between the court in this State and the court in the state that would assume jurisdiction;
(4) the relative financial circumstances of the parties;
(5) any agreement of the parties as to which state should assume jurisdiction;
(6) the nature and location of the evidence required to resolve the pending litigation, including the testimony of the child;
(7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(8) the familiarity of the court of each state with the facts and issues of the pending litigation.
c. If a court of this State determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper. [N.J.S.A. 2A:34-71 (emphasis added.]
As a threshold matter, two portions of the foregoing statute are procedurally significant to this appeal. The first is subsection (a), which expressly permits a judge to raise the issue of "inconvenient forum" on the court's own motion. N.J.S.A. 2A:34-71(a). Consequently, the Family Part did not err in raising this issue sua sponte. The second significant procedural provision is set forth in subsection (b), which prohibits a judge from relinquishing New Jersey's jurisdiction unless the judge: has afforded the parties the opportunity to submit information bearing on the issue of forum selection; and has considered "all relevant factors," including the eight factors listed in N.J.S.A. 2A:34-71(b)(1) - (8).
The decision reached by the judge in his June 26, 2007 order unquestionably runs afoul of both requirements of subsection (b). The parties were clearly never given the opportunity to submit information on the jurisdictional issue since both the motion and cross-motion they filed requested modification of the child support order, not dismissal of the action. And, the judge never considered all relevant factors, let alone the other seven of the eight factors listed in N.J.S.A. 2A:34-71(b). The only factor considered by the trial court was the length of time the parties' child has lived in New York, which is factor (2). This, however, was only one of the eight factors the judge was required to consider.
These violations of N.J.S.A. 2A:34-71(b) were substantial and we are not permitted to ignore them. As the Court recently observed in Greely v. Greely, 194 N.J. 168, 179 (2008), any challenge to New Jersey's jurisdiction "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." (emphasis added).
At appellate oral argument, plaintiff acknowledged that the judge disregarded the mandate of N.J.S.A. 2A:34-71(b) when he issued the order relinquishing jurisdiction without ever affording the parties the opportunity to submit information that bears on the issue of jurisdiction. She argues, however, that in this particular case, there was no need to do so because the various expert reports, certifications and numerous motions over the preceding five years provided the judge with all the information he needed to make an informed decision on jurisdiction. We decline plaintiff's invitation to condone such a glaring violation of the statute. Moreover, we see no reason to deprive defendant of the opportunity to brief the issues and attempt to put the various expert reports, certifications and motions in perspective.
Defendant, while agreeing that the judge disregarded both of the requirements of N.J.S.A. 2A:34-71(b), urges us to exercise original jurisdiction in order to consider and apply both the "significant connection" and "substantial evidence" requirements of N.J.S.A. 2A:34-66(a)(1) as well as the eight statutory factors specified in N.J.S.A. 2A:34-71(b). We decline that request. An appellate tribunal is ill-suited to function as a trial court, especially in Family Part matters where the experience and expertise of Family Part judges is critically important. Cesare v. Cesare, 154 N.J. 394, 412 (1988). Appellate judges should avoid supplanting the decision-making responsibilities of Family Part judges, who are in the best position to evaluate the evidence and make findings of fact. Ibid.
Accordingly, we conclude that the only appropriate procedure for resolving the issue of jurisdiction is to remand this matter to the Family Part to conduct the proceedings and apply the factors that are set forth in N.J.S.A. 2A:34-66(a)(1) and N.J.S.A. 2A:34-71(b). Because the judge who entered the order in question is no longer serving, on remand this matter should be re-assigned.
Reverse and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.