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Franza v. Saxon-Kowalsky

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 30, 2009

RAYMOND FRANZA, PLAINTIFF-APPELLANT,
v.
MEREDITH SAXON-KOWALSKY, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-993-06D.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 1, 2009

Before Judges Stern, Waugh and Ashrafi.

Plaintiff Raymond Franza appeals from a judgment of divorce (JOD) based on the counterclaim of his wife, defendant Meredith Saxon-Kowalsky. The JOD was entered by the Family Part after Franza's complaint and his answer to the counterclaim had been stricken due to discovery violations. The trial judge held a proof hearing, pursuant to Rule 4:43-2(b) and Rule 5:1-1, at which Saxon-Kowalsky testified and was subject to cross-examination by Franza. We affirm as to all issues except: (1) counsel fees, as to which we remand; and (2) the transfer of the case to Connecticut, which we vacate. However, we affirm the implicit ceding of primary jurisdiction to Connecticut with respect to future child support and child custody proceedings to the extent Connecticut has jurisdiction over Franza.

I.

We glean the following facts from the testimony given at the proof hearing. The parties were married in June 2001. They have two sons: the first born January 1, 2003; and the second born October 16, 2004.

In late 2005, Franza made several large withdrawals from the parties' joint checking account. He filed a complaint for divorce on January 12, 2006. On February 27, 2006, Saxon-Kowalsky filed an answer and counterclaim for divorce. Franza subsequently filed an answer to the counterclaim.

On January 19, 2006, Saxon-Kowalsky was leaving the marital residence with the two children when Franza "grabbed [her] by the neck and told [her] he was going to kill [her]." Franza's father, who was also present, "motion[ed] that he was going to kill [Saxon-Kowalsky] and slice [her] father's throat." Saxon-Kowalsky and her father were able to get to her car with the children. Franza followed after them, kicking the car and spitting at Saxon-Kowalsky and her father.

In an order in the matrimonial action dated January 26, 2006, the parties consented to joint legal custody of their children, with Saxon-Kowalsky having temporary residential custody. Franza was to have parenting time on alternating weekends, with Saxon-Kowalsky dropping the children off at the marital home, where Franza was residing until it was sold.

Saxon-Kowalsky filed a complaint on February 28, 2006, seeking a domestic violence restraining order against Franza, apparently based on the events of January 19, 2006. See N.J.S.A. 2C:25-17 to -35. On March 10, 2006, a final restraining order was entered against Franza. That order provided for Franza's parenting time to be supervised at the Monmouth County Courthouse, with daily telephone contact.

On May 16, 2006, Saxon-Kowalski filed a petition for bankruptcy protection under 11 U.S.C.A. §§ 701-784. In the petition, she listed total assets in the amount of $945,270 (primarily the marital home) and total liabilities of $955,896.91 (primarily the mortgage on the martial home). It appears from the petition that the marital home was titled solely in Saxon-Kowalsky's name.

On May 24, 2006, the trial judge issued a case management order concerning the parties' discovery obligations. Franza was ordered to answer all interrogatories and to comply with a notice to produce by June 30, 2006.

The trial judge issued an order for pendente lite relief on June 9, 2006, in response to a motion filed by Saxon-Kowalsky. In the order, the trial judge denied several of Saxon-Kowalsky's requests, including a request that the court draw a negative inference from Franza's failure to provide his income for 2005 in his case information statement and to require Franza to keep his life insurance policy in place, with Saxon-Kowalsky named as beneficiary. The order also deferred Saxon-Kowalsky's request for counsel fees and for Franza to be required to pay damages for certain property taken by him from the marital home. Franza was ordered to pay unallocated support in the amount of $2,750 per month. He was also enjoined from interfering with the sale of the marital home by the trustee in Saxon-Kowalsky's bankruptcy, provided that she delivered a copy of her bankruptcy petition to Franza by June 16, 2006.

On October 23, 2006, the trial judge entered a case management order, providing, in part:

1. Plaintiff shall provide more specific Answers to Interrogatories as requested in correspondence dated September 7, 2006, on or before Nov[ember] 16, 2006.

2. Plaintiff shall provide a response to the Notice to Produce that was originally due on May 5, 2006, and June 30, 2006 on or before Nov[ember] 16, 2006.

On December 7, 2006, Saxon-Kowalsky moved for dismissal of Franza's pleadings for failure to provide a response to the notice to produce. In the alternative, she requested that Franza be ordered to comply with the notice to produce, listing a number of other outstanding discovery requests.

On January 26, 2007, in response to Saxon-Kowalsky's motion, the trial judge ordered:

1. That if the parties cannot agree on a joint custody evaluator, the attorneys for the parties shall submit three names of acceptable custody evaluators to the Court within fifteen (15) days and the Court will appoint an evaluator off of the submitted list; and

2. That the Plaintiff shall pay all costs related to the custody evaluation, without prejudice and subject to allocation at final hearing; and

3. That the Plaintiff shall provide all requested discovery within thirty (30) days, or in the alternative submit a certification that the requested items do not exist; and

4. That in the event the Plaintiff fails to provide a response to the Notice to Produce within thirty (30) days, the Court will consider the imposition of appropriate sanctions; and

5. That the Defendant's request of the Court to dismiss the Plaintiff's pleadings for failure to provide a response to the Notice to Produce in accordance with R. 4:23-5(a)(1) is DENIED without prejudice; and

6. That the Plaintiff shall appear for a deposition on a date before February 26, 2007, which date should be agreed on by the parties within seven (7) days . . . . [(Emphasis in original).]

Thereafter, Franza filed a motion seeking to lower his support obligation. In response, Saxon-Kowalsky filed a motion requesting enforcement of litigant's rights. Her motion sought, among other things: (1) denial of Franza's application to lower his support obligation; (2) a bench warrant for Franza's arrest for failure to pay his pendente lite support obligations; (3) payment of all support arrears; (4) a written response to a prior discovery request along with all requested documents; and (5) for Franza's complaint to be stricken for failure to comply with discovery requests.

The trial judge issued her order on June 8, 2007, denying Franza's request to lower his support obligation, but providing that there would be no enforcement of the full amount if Franza paid a minimum of $1,500 in support per month. The order also provided for Franza to have parenting time on alternating weekends, with drop off and pick up to take place at the police station in Danbury, Connecticut. Saxon-Kowalsky had resided in Connecticut since shortly after the parties separated. The trial judge once again ordered Franza to comply with the outstanding discovery requests.

In August 2007, Saxon-Kowalsky filed a second motion to enforce litigant's rights. The motion sought relief similar to that sought in April. On October 5, 2007, the trial judge again ordered Franza to pay the minimum $1,500 per month in support payments and authorized wage garnishment to satisfy this obligation. She ordered Franza to sign authorizations allowing Saxon-Kowalsky to obtain information regarding life and health insurance directly from the insurance companies. Finally, the trial judge warned that Franza's pleadings "may be stricken and [Saxon-Kowalsky] may proceed by default," if Franza was not forthcoming with information concerning his insurance polices or failed to comply with all outstanding discovery requests.

In November 2007, Saxon-Kowalsky sought relief in a third motion to enforce litigant's rights. She sought a determination that Franza was in violation of the October 5, 2007, order requiring him to sign authorizations regarding two insurance policies and to comply with discovery orders. She also requested the trial judge to strike his pleadings.

On December 20, 2007, the trial judge entered an order providing:

1. That the Plaintiff is in violation of litigant's rights for failing to pay support and to provide discovery pursuant to prior Orders of the Court . . . .

3. That if the Plaintiff fails to retain an attorney and to substantially comply with the Defendant's discovery requests, including the execution of all requested authorizations, the Defendant shall be permitted to proceed by default at the next scheduled Court proceeding on January 29, 2008 . . . .

On January 4, 2008, Saxon-Kowalsky served a notice of equitable distribution, stating her intention to proceed with the default proceeding on January 29, 2008, if Franza failed to comply with the December 20, 2007, order.

On January 29, 2008, Franza appeared without counsel, asserting that he was not well and had been unable to obtain counsel through "legal aid." He presented two generalized reports from his doctor, acknowledging that Franza suffered from high blood pressure, a tear in his left rotator cup, and herniated cervical and lumbar discs. They did not address the issue of whether he was medically able to participate in a trial. The trial judge found that Franza's medical condition did not prevent him from proceeding "in an intelligent and articulate fashion." Later in the proceedings, Franza asserted that he had not only been in a car accident, but he had also suffered a stroke. The trial judge found "absolutely no evidence of a stroke."

Addressing Franza's claim that "legal aid" had denied his request for assistance, the trial judge stated, "obviously, they would not take your case," suggesting her agreement with Saxon-Kowalsky's argument that Franza was more than capable of paying for legal services. Relying on Franza's prior history of disregarding orders requiring him to provide discovery and the warning in her December 20, 2007, order, the trial judge determined that the case would "proceed by default." However, the trial judge allowed Franza "to give some of his input on certain issues" and "to ask questions on cross examination." Although Franza was never called to testify, he was placed under oath at the beginning of the proceeding and allowed to offer factual statements from time to time.

The trial judge took testimony from Saxon-Kowalsky separately with respect to the following issues: the cause of action for divorce, support, child custody, and her request that jurisdiction be transferred to the State of Connecticut. At the time of trial, neither party lived in New Jersey. Saxon-Kowalsky lived in Connecticut with the children and Franza lived on Staten Island. The cause of action is not in dispute on this appeal.

With respect to custody, there appeared to be a presumption that Saxon-Kowalsky would be the custodial parent and the testimony focused on the issue of Franza's parenting time. Saxon-Kowalsky testified that Franza sometimes failed to pick up the children for his parenting time or canceled while she was already in transit to the transfer location in Danbury. She asked that the transfer take place in West Hartford, which is closer to her residence than Danbury. She also testified that Franza rarely took advantage of his daily, hour-long telephone time with his children. Franza disputed Saxon-Kowalsky's factual assertions, and strongly opposed the change in the transfer point.

Saxon-Kowalsky also testified about the marital lifestyle. She reported that Franza was the primary provider for the family making a living as, among other things, an actor, an executive for his father's company, and a loan officer. She stated that they had enjoyed an extravagant lifestyle while married, spending approximately $24,469 a month.

Saxon-Kowalsky noted that, while Franza claimed injuries from two post-complaint automobile accidents, he failed to provide the authorizations for his medical records, so discovery could be completed regarding his medical condition and any related disability. Saxon-Kowalsky testified that she was unable to obtain discovery on Franza's assets and income. She also testified that Franza had used her name and forged her signature in order to obtain credit cards, which he then maxed out.

With regard to her own earning potential, Saxon-Kowalsky testified about her income before marrying Franza and what her income had been since their separation. Based on this testimony, Saxon-Kowalsky asked the court to impute an income of $20,000 to her, and an income of $200,000 to Franza. She requested $433 per month for alimony and $1,870 per month in child support, which was a reduction of approximately $450 per month from the amount provided by the pendente lite order. Saxon-Kowalsky also testified about the health and life insurance that Franza had failed to secure.

Saxon-Kowalsky was the only formal witness at the January 29, 2008, hearing. During his summation, Franza, who had been put under oath, argued that he had never earned income at the level to which Saxon-Kowalsky testified. The trial judge pointed out that he had failed to cooperate and provide proof of that during discovery. The judge concluded by stating:

Mr. Franza, unfortunately for you today, you are in default. You are in default today. And I've heard from you, and I've tried to be patient with you, and I've allowed you to cross examine the defendant.

But unfortunately, as I said, all of this is really your own making. And I've told you that. I told you it on December the 20th, when despite [defense counsel's] great objection, I gave you even more time until today, five weeks.

And I even suggested to you, figure out a way to get back to [your former counsel] if indeed he has all of these files. But you didn't do anything.

You arrived here today, and I don't know what you were hoping, but . . . the reality is today is the day that the case will end. Today is the day that I'm considering the request to enter a default judgment based on the testimony that was provided by defendant.

And quite honestly, not on one single issue have your questions been such that I've modified or would modify any of the requests made in the default judgment of divorce.

And is it a good day for you? No. Because I - - a lot of this is guesswork. And a lot of it would have been less guesswork on my part, or [defense counsel's] part, or anybody's part, had you simply cooperated. We don't like to guess in court. But I don't know what else to do, other than to have left the case open for months and months more. And that isn't even a possibility at this point.

The trial court then granted Saxon-Kowalsky's counterclaim for divorce and awarded her the requested child support and alimony payments.

On January 29, 2008, the trial judge entered the JOD, based on Franza's "willful failure to comply with the prior Orders of the Court; and upon proofs being taken in open court as to the dissolution of the marriage and equitable distribution." In addition to granting the divorce, the JOD granted sole custody of the children to Saxon-Kowalsky, allowing Franza visitation every other weekend and on certain holidays along with scheduled telephone contact. The transfer location was changed from Danbury to West Hartford, as requested by Saxon-Kowalsky.

The JOD set forth the following findings and conclusions with respect to the issue of spousal and child support:

(a) MARITAL LIFESTYLE

The parties enjoyed a substantial standard of living during the marriage which included living in a 1.2 million dollar home, driving expensive cars and extravagant spending. During the marriage, the parties expended approximately $24,469.00 per month or $293,628.00 per year for marital expenses.

(b) PLAINTIFF'S EARNING POTENTIAL

The Plaintiff was the primary provider and supported the family's lifestyle throughout the marriage by performing various jobs, all of which produced significant income. The Plaintiff has held positions as a mortgage consultant and has been employed by various Unions, including but not limited to Union Local 79 and Union Local 638. The Plaintiff has been employed as the Chief Financial Officer of his father's company, All City Mechanical Corporation. The Plaintiff has also pursed an acting career and maintains an acting manager and acting agent, as well as being a member of the Screen Actor's Guild. The Plaintiff has performed in many productions including but not limited to HBO productions, Warner Brothers productions and NBC productions. Additionally, the Plaintiff has performed in multiple screen productions, many of which have been released in video and DVD format for which the Plaintiff receives residuals.

Recently, the Plaintiff has alleged that he is disabled due to multiple motor vehicle accidents. The Plaintiff, under the Order of the Court, has failed to produce (1) Authorizations necessary to obtain his medical information; (2) Proofs of any motor vehicle accidents including but not limited to Police Reports and/or insurance reports; and (3) Proofs that he has applied for or has been granted any type of disability status, either permanent or temporary. Therefore, the Plaintiff's disability allegation has not been proven and shall not be considered at this time.

Furthermore, the Plaintiff has identified his "net worth" as being $500,000.00 as recently as June 20, 2007. Plaintiff's Case Information Statement, dated March 29, 2006, states a net worth of [negative] $65,000.00. Plaintiff has increased his net worth in 2 1/2 years by $565,000.00. Plaintiff's failure to provide accurate income information, as Ordered by the Court, shall be inferred as intentional so as not to disclose his true income.

Therefore, based upon the parties' marital spending which exceeded $290,000.00 per year with the Plaintiff as the sole income provider and the fact that Plaintiff's net worth increased over the past 2 1/2 years by $565,000.00, it is obvious that the Plaintiff has had substantial income which he has intentionally withheld from the Court and the Defendant. Accordingly, the Plaintiff shall have an income imputed to him in the amount of $200,000.00 per year for alimony considerations and child support calculations.

(c) DEFENDANT'S EARING POTENTIAL

The Defendant, prior to the marriage, was employed as a full-time physical therapist. During the vast majority of the marriage, the Defendant did not work as the result of a mutual decision between the parties. Any part-time work by the Defendant was sporadic and never exceeded six (6) hours per week after the birth of their first child in 2003. The Defendant never worked during the marriage after the birth of their second child in 2004. The Defendant sacrificed her career in order to be a full-time, at home mother and homemaker for the family. This was also a mutual decision between the parties.

At the present time, the Defendant is employed on a temporary basis by Eastern Rehabilitation Network in Newington, Connecticut. The Defendant's ability to work is severely limited due to the necessity to care for the two children of the marriage. The Defendant's earnings for the year 2007, through December 8, 2007, were $11,840.00 gross.

Therefore, for alimony considerations and child support calculations, the Defendant shall have imputed to her an annual income of $20,000.00 per year.

(d) ALIMONY

The Defendant shall receive term alimony from the Plaintiff in the amount of $100.00 per week or $430.00 per month for a term of three (3) years subject to modification at the end of the three year term pursuant to existing law within the State that holds jurisdiction at the end of the three (3) year term. All such alimony payments shall be made through the Probation Department via wage garnishment within the proper jurisdiction.

(e) CHILD SUPPORT

The Plaintiff shall pay the Defendant as and for child support of the two (2) minor children born of this marriage the sum of $435.00 per week or $1,870.50 per month as calculated by the Child Support Guideline Worksheet [] All such child support payments shall be made through the Probation Department via wage garnishment within the proper jurisdiction. All child support notices pursuant to R. 5:7-2(f) shall be incorporated herein. []

(f) WORK-RELATED DAY CARE

At any time that Defendant requires work-related day care for one or both of the two minor children born of the marriage, the Plaintiff shall be responsible for 67% of the cost thereof and the Defendant shall be responsible for 33% of the cost.

(g) REVIEW OF CHILD SUPPORT

Child support shall be reviewable every three (3) years. Child support shall be reviewable and recalculated at any time that the Plaintiff's term alimony obligation ends.

(h) PENDENTE LITE ARREARAGES FOR SUPPORT

Plaintiff is in arrears as of January 23, 2008 in the amount of $29,213.95. This amount shall be reduced to Final Judgment against the Plaintiff as in favor of the Defendant.

The JOD required Franza to reinstate the children's health insurance policy with the Screen Actor's Guild, or to provide equivalent coverage. It also made provisions for the payment of unreimbursed medical expenses, as well as the requirement that he maintain life insurance in the amount of $500,000 for as long as he has either alimony or child support obligations.

With respect to equitable distribution, the trial judge noted that there was no real property subject to equitable distribution. She entered judgment in favor of Saxon-Kowalsky for $28,225.05, representing her share of personal property removed from the marital residence by Franza, and for $28,500, representing her share of funds withdrawn from a joint bank account by Franza. The trial judge awarded Saxon-Kowalsky one half of any pensions or other retirement assets, but only with respect to those parts of any such assets obtained during the marriage.

The JOD transferred jurisdiction to Connecticut. Although the wording of the JOD is not entirely clear, we presume that the transfer was limited to jurisdiction over matters pertaining to child support and custody. Finally, the JOD awarded Saxon-Kowalsky counsel fees in the amount of $190,000.

On January 31, 2008, the trial judge put her reasoning for proceeding with a default judgment on the record. She began by reviewing the most recent orders with which Franza had failed to comply, specifically the orders of June 8, October 5, and December 20, 2007.

Here [Franza] has been arguing that he has been unwell. He's had a stroke or a mini-stroke. He's had a car accident. He's unfit or unhealthy.

I will say for the record that when he appeared here two days ago he seemed completely fit, completely healthy, indeed perhaps more healthy than he appeared in the past because he's not working at all. And he appeared to the Court to be up to his own - - trying to put forth I'll say, his own agenda.

He is an actor by trade and [defense counsel] continually pointed out that it appeared that he was acting. And I have to completely concur with that. [Franza] is not well when he wants to be. He's well when he wants to be. And I did not find any evidence, none whatsoever, of any disability on the part of [Franza].

She also elaborated on her reasons for other aspects of the JOD.

This appeal followed.

II.

On appeal, Franza challenges the trial judge's decisions to: (1) proceed by default; (2) impute $200,000 in income to him; (3) award $190,000 in counsel fees; (4) impose the entire burden of travel for parenting time on him; and (5) transfer jurisdiction to Connecticut.

We begin by noting that, because of the special expertise of Family Part judges, "we do not second-guess their findings and the exercise of their sound discretion," Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007), and we recognize that "'[j]udicial discretion connotes conscientious judgment, not arbitrary action; it takes into account the law and the particular circumstances of the case before the court.'" Ibid. (quoting Higgins v. Polk, 14 N.J. 490, 493 (1954)).

Our scope of review of a Family Part judge's factual findings is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1988); Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007). We are generally bound by the trial court's findings of fact "when supported by adequate, substantial, credible evidence." Cesare, supra, 154 N.J. at 411-12. This is especially so when questions of credibility are involved. Id. at 412. In addition, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. The trial judge's legal decisions, however, are subject to our plenary review. Crespo, supra, 395 N.J. Super. at 194; Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

A.

Before we turn to the issues raised on appeal, we address Saxon-Kowalsky's argument that we ought not even consider the appeal at all. Citing Haber v. Haber, 253 N.J. Super. 413, 416 (App. Div. 1992), she argues that a direct appeal does not lie from a default judgment. Instead, she contends that Franza's remedy is a motion to set aside the default under Rule 4:50-1. In the context of this case, we disagree.

In Haber, a matrimonial action, the defendant husband had answered and counterclaimed, but chose not to attend the trial. A default judgment was entered after the judge took testimony from the plaintiff wife. The husband appealed, arguing that the evidence was insufficient to support the relief granted. Haber, supra, 253 N.J. Super. at 415. We held that, as an intermediate appellate court, we were bound by the holding in two decisions of the former Court of Errors and Appeals to the effect that "a direct appeal will not lie from a judgment by default." Id. at 416 (citing McDermott v. Patterson, 122 N.J.L. 81, 84 (E. & A. 1939); Walter v. Keuthe, 98 N.J.L. 823 (E. & A. 1923)). Consequently, we dismissed the appeal, but "without prejudice and with leave to make an application for relief from judgment pursuant to Rule 4:50-1." Id. at 418.

In the present case, Franza's pleadings were stricken as a sanction for his failure to provide discovery. Although the trial judge proceeded to determine the matter by default, she nevertheless permitted Franza to participate in the proof hearing, to cross-examine his wife, and even to add some testimonial statements of his own. Consequently, we view this case as comparable to Kolczycki v. City of East Orange, 317 N.J. Super. 505 (App. Div. 1999), in which we determined a direct appeal from a judgment entered by default under similar circumstances.

B.

We now turn to the issue of the trial judge's determination to strike Franza's pleadings for discovery violations.

Dismissal of a party's pleadings is the "ultimate sanction," and should be avoided unless no lesser remedy is reasonably available. Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 514 (1995). "Until courts have exhausted means of performing their shepherding function which do not terminate or deeply affect the outcome of a case, they ought not bar a litigant's way to the courtroom." Audubon Volunteer Fire Co. No. 1 v. Church Constr. Co., 206 N.J. Super. 405, 407 (App. Div. 1986). We will not interfere with the exercise of discretion by a trial judge in discovery matters unless the judge mistakenly exercised his or her discretion. Abtrax, supra, 139 N.J. at 517. Simply stated, discovery "'sanctions will not be disturbed on appeal provided they are just and reasonable under the circumstances.'" Grubbs v. Knoll, 376 N.J. Super. 420, 435 (App. Div. 2005) (quoting Aetna v. Imet Mason Contracters, 309 N.J. Super. 358, 365 (App. Div. 1998)).

The record before us clearly reflects that the trial judge made the required effort to obtain Franza's compliance with her discovery orders, and that he routinely refused to comply. The financial and medical information sought by Saxon-Kowalsky were central to the contested issues in the divorce.

In addition, the trial judge made it sufficiently clear to Franza that, if he did not remedy his discovery violations and was not prepared to proceed on January 29, 2008, she would proceed by default. He appeared on that date without the required discovery, without counsel, and without medical information specifically addressed to his purported inability to proceed. Consequently, we find that the trial judge's decision to proceed by default was not an abuse of discretion and affirm as to that issue.

C.

We turn next to the issue of the imputation of income to Franza, which he claims is not supported by the record.

As noted above, appellate courts generally show considerable deference to the factual findings and exercises of discretion by Family Part judges. In the context of a default judgment, "the [trial] court should ordinarily apply the prima facie standard to plaintiff's proofs, thus not weighing evidence or finding facts, but only determining bare sufficiency."

Kolczycki, supra, 317 N.J. Super. at 514. Further, the trial court is obliged "to view plaintiff's proofs 'indulgently,'" and the general practice is "to require only a prima facie case." Heimbach v. Mueller, 229 N.J. Super. 17, 20 (App. Div. 1988). "[U]nless there is intervening consideration of public policy or other requirement of fundamental justice, the judge should ordinarily apply to plaintiff's proofs the prima facie case standard of Rule 4:37-2(b) and Rule 4:40-1 . . . ." Pressler, Current N.J. Court Rules, comment 2.2.2 on R. 4:43-2 (2009).

We have determined that the record developed at the default hearing, particularly through the testimony of Saxon-Kowalsky, supports a prima facie case for the imputation of significant income to Franza. It would appear from the record that there was considerable unreported income, given the marital lifestyle. That the trial judge may not have had a full financial picture is largely Franza's fault, resulting from his persistent refusal to provide financial discovery.

Consequently, we affirm the trial judge's imputation of $200,000 to Franza, subject to his right, after full disclosure, to seek a reduction based upon his then current financial and employment information.

D.

With respect to the award of $190,000 in counsel fees, we do not find support in the record for the award. Indeed, it appears from the record that the trial judge was not even presented with a counsel fee application comporting with the requirements of Rule 4:42-9 and Rule 5:3-5(c). Consequently, we vacate the award of counsel fees and remand the issue to the trial judge for further consideration in light of the applicable Court Rules, as well as N.J.S.A. 2A:34-23. See Mani v. Mani, 183 N.J. 70, 93-95 (2005).

E.

Franza also challenges the trial judge's decision to require him to perform all exchanges of the parties' children for parenting time in West Hartford, which he asserts is approximately 145 miles from his residence.

Matters involving children implicate the type of intervening public policy, referred to in the quotation from Pressler, supra, comment 2.2.2 on R. 4:43-2, in which the trial court must look for more than a prima facie case in considering an application for a default judgment. Where issues of child custody and parenting time are concerned, the focus must be primarily on the best interests of the children. Sacharow v. Sacharow, 177 N.J. 62, 80 (2003).

There was testimony from Saxon-Kowalsky at the proof hearing that Franza was irregular in his participation in parenting time, causing her inconvenience and the children disappointment. In her supplemental oral opinion, the trial court addressed the issue as follows:

[T]he plaintiff had the opportunity to have a custody evaluation. He never followed through with it. So, what I ordered was simply that the parties continue doing what they had been doing which was that the plaintiff would have parenting time with the children alternating weekends from Saturday at 10:00 a.m. to Sunday at 10:00 a.m.

Now previously the pick up and drop of had been at eight. I believe it was the Stamford, Stamford Connecticut Rest Stop but I'm not sure. But it was further south and Ms. Kowalski testified credibly at the proceeding on January 29th, 2008 that Mr. Franza would not appear. Would appear late and there were problems with the pick up and drop off.

And because she was traveling an hour and a half each way to get there and to get back, if Mr. Franza decided he was not going to show up or he was going to show up late, not only would it be a great disappointment to the children but she would also be driving a great distance with the children only to be disappointed and then have to drive a great distance back.

So, she requested that the pick up and drop off location be changed to the West Harford Police Department and she gave the address as 103 Raymond Road in West Harford. And I granted that request. That was a request that Mr. Franza was not happy about but he did acknowledge that he had not been necessarily cooperative I think. And maybe he acknowledged two or three occasions.

But two or three occasions are two or three occasions too many and again I was troubled to think that the children had been disappointed by their father's behavior. We also have to remember that at the beginning of this case Mr. Franza had supervised visitation and again he did not follow through with having the custody evaluation.

The remaining provisions concerning the parenting time I thought were all reasonable. The plaintiff didn't always and doesn't always communicate by phone as he'd been granted. But again, I found that the other requests concerning custody and parenting time were appropriate.

Given our standard of review, we find no basis to set aside the trial judge's credibility findings, nor do we see an abuse of discretion in her decision to move the transfer location in light of Franza's spotty participation and last minute cancellations. It was sufficiently based on the best interests of the children, given the testimony that they were disappointed and inconvenienced by Franza's irregularity in keeping to the parenting schedule. Consequently, we affirm as to that issue. There is nothing to prevent Franza from having his parenting time in Connecticut, or ultimately from seeking an adjustment of the transfer point based upon a proven track record of regular participation in parenting time.

F.

Finally, we turn to the issue of the transfer of jurisdiction to Connecticut. In her order of January 29, 2008, the trial judge stated:

The Defendant and two minor children of the marriage reside in the State of Connecticut and have been residing there for more than six months. Upon dissolution of this marriage, jurisdiction shall be moved from the State of New Jersey to the State of Connecticut for any further action, including but not limited to enforcement action.

Franza challenges the authority of the trial court to enter such an order.

We conclude that the trial court did not have the authority to "transfer" the proceedings to another state. Rather, she had the authority to determine that New Jersey no longer retains "exclusive, continuing jurisdiction" over matters pertaining to modification of orders related to the children and child support. See N.J.S.A. 2A:34-66(a)(2) (A court may relinquish its "exclusive, continuing jurisdiction" over child custody cases when it "determines that neither the child, nor a parent, nor any person acting as a parent presently resides in this State."). While 42 U.S.C.A. § 1404 allows for the transfer of cases between the federal courts, no such provision exists for use by the state courts.

Nevertheless, Saxon-Kowalsky may seek to enforce the support orders in any state having the jurisdiction necessary to do so. Depending upon the extent of their statutory authority and personal jurisdiction, Saxon-Kowalsky may seek to enforce the provisions of the orders entered in New Jersey in either Connecticut, where she and the children live, or New York, where Franza lives, by registering the order of the Family Part with the appropriate courts. See 28 U.S.C.S. § 1738B(a)(1) ("The appropriate authorities of each State [] shall enforce according to its terms a child support order made consistently with this section by a court of another State."). See also Conn. Gen. Stat. § 46b-213i; N.Y. Fam. Ct. Act § 580-603. It is not clear, however, that Connecticut would be able to exercise personal jurisdiction over Franza.

In addition, the Connecticut courts may be able to modify the child custody order under the Uniform Child Custody Jurisdiction and Enforcement Act, Conn. Gen. Stat. § 46b-115 to -115jj. However, New Jersey would retain continuing jurisdiction over such orders, albeit not "exclusive" jurisdiction.

Turning to the issue of the spousal support order, as was recently explained by the Judge Robert J. Mega in a published opinion from the Family Part, New Jersey courts retain exclusive jurisdiction over the spousal support order and any attempt at modification of such order. Pek v. Prots, ___ N.J. Super. ___ (Ch. Div. July 2, 2008). N.J.S.A. 2A:4-30.72(f) provides:

A tribunal of this State issuing a support order consistent with the law of this State has continuing, exclusive jurisdiction over a spousal support order throughout the existence of the support obligation. A tribunal of this State may not modify a spousal support, custody visitation, or non-child support provisions of an order issued by a tribunal of another state having continuing, exclusive jurisdiction over that order under the law of that state.

"Therefore, the issue of spousal support modification cannot be disposed of in the same manner as child support modification under the [Uniform Interstate Family Support Act]." Pek, supra, ___ N.J. Super. ___ (slip op. at 5).

Pursuant to [the Uniform Interstate Family Support Act] parties may contract and choose a forum as it relates to child support modification, but may not choose a forum other than the forum that has continuing, exclusive jurisdiction, as it relates to spousal support modification. A jurisdiction that establishes a spousal support order retains continuing exclusive jurisdiction for the life of the order. [Pek, supra, ___ N.J. Super. ___ (slip op. at 7).]

Therefore, while the Connecticut courts could potentially have jurisdiction to modify the child support and custody orders, the New Jersey courts retain exclusive, continuing jurisdiction over the spousal support order. In addition, the courts of any state having personal jurisdiction over Franza would have authority to enforce his support obligations.

III.

In summary, we affirm the JOD as to the following issues:

(1) the trial judge's decision to strike Franza's pleadings and proceed by default; (2) the imputation of $200,000 of income to Franza; and (3) the parenting time transfer location. We vacate the award of counsel fees and remand to the trial judge for proceedings consistent with this opinion. We vacate the portion of the order "transferring" jurisdiction of the custody and child support issues to Connecticut, but affirm the trial judge's ceding of jurisdiction to the Connecticut courts.

Affirmed in part, remanded in part, and vacated in part.

20090730

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