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Boghosian v. Boghosian

August 17, 2009

MICHAEL BOGHOSIAN, PLAINTIFF-RESPONDENT,
v.
TERRI SUE BOGHOSIAN, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM-09-1515-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 13, 2009

Before Judges Graves and Grall.

On January 10, 2008, one year after leasing an apartment in Hoboken, plaintiff Michael Boghosian filed a complaint for divorce asserting eighteen months separation and irreconcilable differences. N.J.S.A. 2A:34-2d, i. He also sought equitable distribution of the marital assets and counsel fees. By leave granted, defendant Terri Sue Boghosian appeals from the denial of her motion to dismiss that complaint. Alleging that plaintiff is not a bona fide resident of New Jersey and that she has no contacts with the forum, defendant sought dismissal based on lack of jurisdiction to adjudicate the cause of action or distribute the marital property.

The facts are drawn from the certifications submitted in support of and opposition to the motion. The Boghosians married in Hempstead, New York in 1980. Since 1981, plaintiff has worked for Merrill Lynch in New York City. The parties' three children were born in 1982, 1984 and 1989. In 1994, the Boghosians purchased a home in Garden City, New York. They subsequently acquired a second home in Westhampton, New York. There is no evidence that they hold title to real estate other than their properties in New York.

The Boghosians separated in 2000. Defendant remained in their Garden City home, and plaintiff moved to Queens. In May 2003, plaintiff filed a complaint for divorce in Nassau County, New York, but in March 2006, a jury found that plaintiff failed to establish grounds for divorce. Plaintiff leased his Hoboken apartment in December 2006. He filed this complaint in January 2008.

The affidavit offered to prove service of the summons and complaint was filed on March 26, 2008. An addendum reports the following. The process server attempted to serve defendant at her home on five days in February 2008 at different hours. In every instance, defendant either refused to come to the door or did not respond. On the final attempt, the process server, identifying defendant by comparing her appearance with a photo plaintiff provided, saw defendant inside her home. They spoke, as they had on at least one prior occasion, over the house-intercom system. According to the process server, defendant refused to come to the door and was told that papers from a New Jersey attorney would be left outside. Although defendant denies refusing the summons and being told it would be left, she admits saying she could not come to the door and does not deny receipt of the papers left there.

There is a dispute about plaintiff's intention to make New Jersey his home. According to defendant, plaintiff told her he plans to leave his apartment in Hoboken as soon as he receives a judgment of divorce. But plaintiff expresses "an unqualified intention to remain permanently and indefinitely in New Jersey." He commutes between Hoboken and his New York office and moved from Queens to Hoboken because the trip is less expensive and stressful and also because his apartment is closer to friends and the parties' youngest child, who is attending college in Pennsylvania. Although plaintiff is registered to vote in New Jersey, files tax returns from that address and intends to renew his lease or purchase a residence in this State, in May 2008 plaintiff still had his New York driver's license and car insurance. Since that time, he has obtained a New Jersey driver's license, insured his car in New Jersey and shares his residence with the parties' eldest son. Plaintiff receives mail in Hoboken and New York, but much of the correspondence delivered to the New York residence concerns the real property in New York. Plaintiff maintains memberships in country and beach clubs in New York, which he keeps for the benefit of the parties' youngest child.*fn1

In addition to their real estate in New York, the Boghosians have various accounts with Merrill Lynch and CitiBank, some held jointly and some individually. Both entities have a presence in New Jersey. The total value of the Boghosians' financial assets exceeds the estimated value of their real estate in New York. The Boghosians' personal property includes a boat and five cars.

After considering the papers submitted on the motions and argument of counsel, the trial court denied defendant's motion to dismiss for lack of jurisdiction. The court concluded that defendant had been properly served, that plaintiff was living in Hoboken and that the court did not require personal jurisdiction over defendant to adjudicate equitable distribution of the marital assets. The order denying defendant's motion to dismiss and for counsel fees was entered on May 9, 2008.*fn2 We granted defendant's timely motion for leave to appeal on June 26, 2008, and the trial court granted a stay pending appeal on August 7, 2008. Defendant objects to the trial court's ruling on each of the issues.

Defendant's argument about service of the summons and complaint lacks sufficient merit to warrant extended discussion.

R. 2:11-3(e)(1)(E). Under either version of the encounter between defendant and the process server, service was not fatally defective.

Personal service of a party outside the State is governed by Rule 4:4-4(b). See R. 5:4-1(a) (providing for service in accordance with Rule 4:4). It may be accomplished by personal service in ...


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