August 11, 2009
MICHAEL CAMPBELL, PLAINTIFF-RESPONDENT,
CLAUDIA CAMPBELL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-330-03C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 22, 2009
Before Judges Yannotti and Lyons.
This case arises from a dispute between former spouses, defendant, Claudia Campbell, and plaintiff, Michael Campbell. Defendant appeals an order granting plaintiff full legal and physical custody of the parties' two daughters, M.C., age twelve, and G.C., age nine. We affirm.
The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. The parties were married in a civil ceremony in New York on November 12, 1993. At some point, the parties moved to New Jersey and purchased a home in Mercer County. After nearly ten years of marriage, on October 21, 2003, the parties entered into a separation agreement. The trial court entered a judgment of divorce, which incorporated the separation agreement on November 20, 2003. The parties agreed to share joint legal and physical custody of the children, with defendant being the parent of primary residence.
The parties' youngest child, G.C., was born with a club foot, and after years of pursuing other treatments, it became apparent that surgery would be necessary to correct the problem. For primarily financial reasons, defendant desired that the surgery be performed in Europe.
On August 17, 2006, when G.C. was seven-years-old, the motion court signed a consent order allowing defendant to take the children to Europe so that G.C. could receive the necessary surgery. At the time, defendant and the children still resided in New Jersey. The order stated that if, after a "reasonable period of time" the surgery could not be performed, the children were to return to the United States. The order further clarified that, pending a court order to the contrary, the children should be brought back to the United States by August 31, 2007. The parties were to continue to share legal custody of the children.
Shortly thereafter, M.C. and G.C. left the United States with their maternal grandparents. Defendant eventually followed. However, G.C. did not receive any surgery and, sometime between September and December 2006, the children and defendant returned to New Jersey.
In December 2006, plaintiff, not realizing the children had returned, filed a motion requesting that defendant bring the children home to the United States. He also requested physical custody of the girls. The motion court heard plaintiff's motion on January 17, 2007. The court expressed frustration at defendant's insistence that M.C. accompany her while she traveled through Europe attempting to arrange G.C.'s surgery. The motion court's primary concern was the impact this lack of continuity had on M.C.'s education. The court, however, denied plaintiff's motion and permitted defendant to take the children to Europe again, stating, "[M.C.] may return to France/Italy and remain in defendant's primary residential custody for the duration of [G.C.'s] surgery and recovery period."
On April 5, 2007, plaintiff again filed a motion requesting that the children be returned to New Jersey and that he be granted physical custody. In response to plaintiff's motion, the court ordered Dr. Norman Weistuch, the children's guardian ad litem,*fn1 to prepare a report concerning the issue of custody. The motion court determined that it would "consider whether to schedule a plenary hearing on the matter" based on that report.
On July 19, 2007, Dr. Weistuch submitted his report to the motion court. He recommended plaintiff be awarded custody of the children. As a result, the trial court scheduled a plenary hearing for January 2, 2008.
On January 2, 2008, defendant failed to attend the hearing. As such, the court entered an order requiring her to provide proof of G.C.'s surgery and prognosis, to return to New Jersey with the children, and to submit to an interview by Dr. Weistuch. The trial court then adjourned the plenary hearing until March 21, 2008.
G.C. finally received surgery to correct her club foot on February 12, 2008. The surgery was performed in Europe.
Since initially taking the children overseas, defendant moved to different locations in Europe a total of five times and did not keep plaintiff informed of her location, nor did she provide him with contact information. On March 4, 2008, the motion court entered an order requiring defendant to provide plaintiff with contact information for herself and the children. The order also required defendant to provide plaintiff with information concerning G.C.'s doctors and her recovery. She was ordered to return the children to the United States by June 27, 2008. The trial was again adjourned until July 1, 2008.
On April 28, 2008, the trial court, upon being informed by defendant that she could not afford the airfare back to the United States to attend the plenary hearing, ordered plaintiff to pay for his children's flights home. The court, however, required defendant to pay for her own plane ticket. That same order adjourned the plenary hearing to August 5, 2008.
On August 5, 2008, defendant did not attend the hearing, nor did she return the children to the United States. Defendant did participate telephonically. Defendant first asserted that the court's January 17, 2007, order allowing her to take the children to Europe stated that they were permitted to "remain in defendant's primary residential custody for the duration of [G.C.'s] surgery and recovery period." Defendant argued that G.C.'s doctors opined she would not be completely recovered from her surgery for another year-and-a-half, and so that order still controlled.
In the alternative, defendant argued that she simply could not afford to be physically present at the hearing. She also informed the court for the first time that, because the children had resided in Germany for more than six months, she had filed for custody in the German court system. She had retained counsel in Germany, who advised her not to participate in the hearing. Defendant then ended the telephone call with the court. However, the court proceeded to the proofs without her participation.
The trial court held that its prior order of January 17, 2007, which allowed the children to remain in defendant's physical custody until G.C. recovered from her surgery, was not meant to span over two years, and, because G.C. had successfully received the operation and was in physical therapy, that order was no longer controlling.*fn2 The court ruled that it had retained jurisdiction over the matter, which had been pending several months before defendant filed her claim in Germany.
The court then proceeded with the hearing and permitted plaintiff to put forth his proofs concerning custody of the children. At the conclusion of the hearing, the court considered the fourteen factors set forth in N.J.S.A. 9:2-4(c). Specifically, the court considered plaintiff's stable employment and home life, as opposed to defendant's "nomadic" lifestyle in Europe. The court found that the children would receive a better, more continuous education in plaintiff's care, and relied heavily on Dr. Weistuch's report, which recommended plaintiff be given physical custody. The court also determined defendant's chronic disregard for its orders to be important. The trial court, therefore, entered an order on August 6, 2008, granting plaintiff immediate legal and physical custody of the children.
Defendant filed a notice of appeal on that order on September 19, 2008. We denied her motion for a stay on October 17, 2008. At the time of filing the appeal, M.C. and G.C. were still residing with defendant in Germany, in apparent violation of the court's order.
We begin by noting that defendant was not represented by counsel in this appeal and her brief and appendix do not comport with the Rules of Court. Importantly, defendant's brief did not provide point headings, R. 2:6-2(a)(5), and she asserts facts and submits material that are outside the record. R. 2:5-4(a). Her arguments are difficult to decipher. We will, however, address defendant's issues as we interpret them. See VW Credit, Inc. v. Coast Automotive Group, Ltd., 346 N.J. Super. 326, 335 (App. Div.), certif. denied, 172 N.J. 178 (2002) (considering an appellant's contention even though it was not set forth in a separate point heading as required by R. 2:6-2(a)(5)).
Defendant first contends that she has filed for physical custody of the two children in Germany. She argues that because the children lived with her in Germany for the six months prior to the August 5, 2008, plenary hearing, the German court system now has jurisdiction over the matter.
The first question that must be decided, therefore, is whether the Superior Court had jurisdiction to consider custody issues presented in this case as of April 5, 2007, the date plaintiff filed for a change in custody. In order to make this assessment, we must first consider whether the Superior Court had jurisdiction over the parties' divorce complaint and initial custody determination.
With regard to jurisdiction over the divorce action, N.J.S.A. 2A:34-8 states:
The Superior Court shall have jurisdiction of all causes of divorce . . . when either party is a bona fide resident of this State. The Superior Court shall have jurisdiction of an action for alimony and maintenance when the defendant is subject to the personal jurisdiction of the court, is a resident of this State, or has tangible or intangible real or personal property within the jurisdiction of the court . . .
N.J.S.A. 2A:34-10 similarly holds that jurisdiction over divorce matters is acquired when a defendant is served under the court rules and:
1. When, at the time the cause of action arose, either party was a bona fide resident of this State, and has continued so to be down to the time of the commencement of the action . . .; or
2. When, since the cause of the action arose, either party has become and for at least [one] year next preceding the commencement of the action has continued to be, a bona fide resident of this State.
"[T]he words 'bona fide resident' are synonymous with 'domiciliary' and mean that plaintiff or defendant must be actually domiciled within New Jersey." Gosschalk v. Gosschalk, 48 N.J. Super. 566, 572 (App. Div.), aff'd, 28 N.J. 73 (1958). Here, there was never any dispute that at the time plaintiff filed the divorce action in 2003, the court had jurisdiction to enter the judgment of divorce because the parties' resided in Mercer County, New Jersey for at least one year prior to the divorce action. Plaintiff continues to be a bona fide resident of the State and currently holds real property in New Jersey. It follows, therefore, that the Superior Court had jurisdiction over the divorce action and, likewise, the custody determinations associated with the divorce.
The New Jersey court also had subject matter jurisdiction over the custody dispute at that time pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA), N.J.S.A. 2A:34-28 to -52. That statute was later repealed and replaced by the Uniform Child Custody Jurisdiction and Enforcement Act, (UCCJEA), N.J.S.A. 2A:34-53 to -95, on December 13, 2004. The UCCJEA was promulgated to refine and improve upon the UCCJA and it retains the central purposes of the prior act. Griffith v. Tressel, 394 N.J. Super. 128, 138 (App. Div. 2007). Because the UCCJA was in effect at the time of the initial custody determination, it controls whether this State had jurisdiction. N.J.S.A. 2A:34-94.
The UCCJA stated that the Superior Court of New Jersey had jurisdiction to make an initial custody determination if New Jersey was the child's "home state" at the time of the commencement of the proceeding. N.J.S.A. 2A:24-31. The statute defined "home state" as "the state in which the child immediately preceding the time involved lived with his parents . . . for a least 6 consecutive months . . . ." N.J.S.A. 2A:34-30.
In this case, it is again undisputed that New Jersey was the children's "home state" at the time the parties were granted their judgment of divorce. It appears from the record that the children had spent the majority of their lives prior to the divorce residing in New Jersey. Also, at the time of the proceeding, both parties resided in the State and it is clear that the children had substantial ties to New Jersey.
Plaintiff filed his April 5, 2007, motion requesting physical custody of the children after the UCCJA was repealed. Therefore, that motion is governed by the UCCJEA, N.J.S.A. 2A:34-94. Because New Jersey was the children's home state at the time of the initial custody determination, we must consider 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 that jurisdiction. Griffith, supra, 394 N.J. Super. at 140.
The UCCJEA states that once the "home state" has made a child custody determination consistent with N.J.S.A. 2A:34-65, which determines initial child custody jurisdiction based on similar criteria found in the UCCJA,*fn3 it retains "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:34-66a.]
Here, no court in New Jersey has found that the children no longer have a significant connection to this State. On the contrary, the trial court found that living with plaintiff and attending school in New Jersey would provide M.C. and G.C. with a more stable home life. The proofs from the court's custody hearing also demonstrate that there remains substantial evidence "in this State concerning the child's care, protection, training, and personal relationships." Moreover, because plaintiff is still residing in New Jersey, no court could correctly determine that "neither the child[ren], nor a parent, nor any person acting as a parent presently resides in this State." Therefore, there is no statutory basis for New Jersey to lose its "exclusive, continuing jurisdiction."
Also, in Sensient Colors v. Allstate Ins. Co., 193 N.J. 373, 386 (2008), our Supreme Court stated that "New Jersey has long adhered to the 'general rule that the court which first acquires jurisdiction has precedence in the absence of special equities.'" (quoting Yancoskie v. Del. River Port Auth., 78 N.J. 321, 324 (1978)). There are no such "special equities" here. To the contrary, defendant has moved the children to various European cities in apparent violation of several court orders. Based on these considerations, it is clear that the Superior Court had the authority to determine custody at the August 5, 2008, plenary hearing and the German courts have not obtained jurisdiction.
Defendant next argues that the motion court lacked a factual basis for its order. We disagree. Because of the family court's special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding. Cesare v. Cesare, 154 N.J. 394, 413 (1998). A trial court's factual determinations, therefore, will only be reversed if they are not supported by substantial credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).
Despite defendant's refusal to participate in the trial court's plenary hearing, the court required plaintiff to present his proofs in order to establish that a change in custody was in the children's best interests. After hearing plaintiff testify about his relationship with the children and his ability to provide a stable home environment for them, the court applied the various factors set forth in N.J.S.A. 9:2-4(c), which requires the trial court to consider: the parents' ability to agree, communicate and cooperate in matters relating to the child; the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child's education; the fitness of the parents; the geographical proximity of the parents' homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents' employment responsibilities; and the age and number of the children.
In applying these factors, the court found that, while both parents sought custody of the children, defendant was unwilling to foster parenting time between G.C. and M.C. and plaintiff.
The court based this finding on defendant's chronic inability to provide plaintiff with contact information for herself or the children while she was abroad. The court also found that the parties were unable to effectively communicate regarding "the proper medical treatment or place of medical treatment for [G.C.]." Despite these "obstacles," the court found plaintiff to be credible when he testified that he still maintained a relationship with the children. The court noted that the children, despite being old enough to have their preferences considered, could not be interviewed to determine the extent of their attachment to plaintiff because defendant had failed to return them to New Jersey.
The trial court also considered defendant's contention that she refused to return to the United States because she feared plaintiff would harm her. Defendant based this concern on a domestic violence charge she previously filed against plaintiff. The court noted that, while a temporary restraining order had been entered, the matter was eventually dismissed and remained an isolated incident.
Regarding the needs of the children and the ability of either party to offer a stable home environment, the court found that both parties had contributed to the delays in G.C.'s surgery but, now that the operation had been performed, the paramount needs of the children had shifted to continuity in their education. The court found that plaintiff had steady employment, a home, and family nearby to assist him with child care. By comparison, defendant did not maintain regular employment and: since the divorce was finalized, mov[ed] three times within the United States . . . all within the space of 18 months. And then five places that the defendant has resided at times with the children, at times without the children, over a two-year period, two in Italy, two in Germany and one in France.
As such, while the court found that neither parent was "unfit," it determined that plaintiff currently offered a more suitable home for the children. The court also considered defendant's inability to comply with court orders to be significant.
It is clear that the trial court's determination to grant plaintiff sole legal and physical custody of the children is supported by substantial, credible evidence. The court correctly applied the facts to the applicable law and determined, after weighing all the factors, that it was in the children's best interests to reside with plaintiff. We do not find that this was an abuse of discretion.
Defendant next argues that the trial court's January 17, 2007, order which allowed her to return to "France/Italy" with the children to secure G.C.'s surgery, permitted her to remain overseas until G.C. had completely recovered. Defendant argues that at the time of the plenary hearing, G.C.'s doctors opined that she would require various forms of physical therapy for another year-and-a-half. As such, the trial court had no authority to "vacate" its previous order by requiring her to return the children to New Jersey prior to that time.
Defendant is attempting to use the language of the trial court's previous order to provide a basis for her to remain in Europe. The trial court, in addressing defendant's argument, found that its previous order was not a license for defendant to remain in Europe indefinitely while G.C. completed her entire regiment of physical therapy. The court found that the plenary hearing had already been delayed several months and, while G.C. may suffer from a lingering limp, she was recovering steadily. As such, the court found it was in the children's best interests to have the hearing to determine if plaintiff was currently a better candidate for physical custody, instead of allowing defendant to keep the children overseas for years under the auspices of G.C.'s recovery.*fn4
As stated above, the factual findings of the Family Court are afforded significant deference and will not be overturned when supported by substantial credible evidence. Here, it is clear that G.C.'s surgery had long been completed and, while she may not yet be able to make full use of her leg and foot, she is clearly well on her way to a full recovery. The court, therefore, was within its discretion to find that defendant's argument was without merit, as the child's recovery would not be impeded by returning to New Jersey.
Lastly, defendant argues that the trial court should not have held the plenary hearing because she was unable to afford the airfare to return to New Jersey to participate. On August 5, 2008, the day of the plenary hearing, the court allowed defendant to participate telephonically. Defendant, after consulting with her counsel in Germany, opted not to present evidence because she had filed a custody claim in Germany and terminated the telephone call. Defendant, therefore, was given the opportunity to participate in the hearing but chose not to. Moreover, defendant was aware of the date of the plenary hearing for several months. The court had already adjourned the hearing three times because defendant was unable to attend. She cannot now claim that she was wrongfully denied her opportunity to be heard when she opted not to participate and made no effort to be present or to earlier file a motion for money to come back.
Defendant's appeal of the court's August 6, 2008, order, therefore, is without merit and the order is affirmed.