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Gale v. Gale

August 27, 2009

SCOTT GALE, PLAINTIFF-APPELLANT,
v.
SIBYL GALE, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-354-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 22, 2009

Before Judges Yannotti and Lyons.

Plaintiff Scott Gale appeals from an order entered by the trial court on September 19, 2008, dismissing his motion for visitation with the parties' children and related relief on the ground that the court lacked jurisdiction pursuant to the New Jersey Uniform Child Custody Jurisdiction and Enforcement Act, N.J.S.A. 2A:34-53 to -95 (the "UCCJEA"). We affirm.

The following facts are relevant to our decision. The parties were married on September 4, 1999, in Roosevelt, New York, and thereafter resided in Brentwood, New York. Two children were born of the marriage. In 2001, plaintiff left the marital home and moved to an apartment in Brooklyn, New York.

The marriage was dissolved by a judgment of divorce dated August 2, 2004, and entered on that date by the Supreme Court of New York, Kings County. The judgment provided, among other things, that the parties would have joint custody of the children, the children would reside with defendant and plaintiff would have visitation with the children at specified times. The divorce decree further provided that plaintiff would pay child support in the amount of $575 per month.

In August 2004, plaintiff relocated to Willingboro, New Jersey. In 2006, plaintiff filed an order to show cause and verified petition in the New York court seeking a modification of the visitation schedule. The New York court entered an order dated September 5, 2006, granting plaintiff's application. Among other things, the September 5, 2006 order provided that plaintiff would have visitation with the children on alternating weekends beginning at 6:00 p.m. on Friday through 7:00 p.m. on Sunday. The order further made provision for visitation during the Thanksgiving and Christmas holidays.

It appears that in 2007, defendant also decided to relocate to New Jersey. Defendant purchased a home in Willingboro but stayed from time to time in plaintiff's home. On September 11, 2007, plaintiff had the police remove defendant from his home. The following day, defendant filed a domestic violence complaint in the Family Part alleging that plaintiff had engaged in threatening behavior. The court entered a temporary restraining order.

On September 17, 2007, the parties appeared in court on the domestic violence matter. Defendant agreed to the dismissal of her complaint and dissolution of the temporary restraining order. On the same day, with the consent of the parties, the court entered an order which stated in pertinent part that:

[t]he parties acknowledge that they entered into a comprehensive agreement for custody and parenting time, including holidays and summer vacation, said agreement was detailed in their [Judgment] of Divorce, entered in the State of New York, King[s] County, on [August 2, 2004] . . . and registered in the State of New Jersey, under the above docket number [FM-03-354-08Y], on 9/17/2007. Thereafter, the parties entered into a stipulation dated 6/3/04, which survived and did not merge with the Judgment, and thereafter entered into an order under Docket No. V-8335/06 . . . (which is attached hereto, rendered in the County of Suffolk, in the State of New York on or about August 2006.

The September 17, 2007 consent order modified the custody order entered by the New York court in August 2006. The consent order set forth a new parenting time schedule, provided that the parties would have telephone access to the children at reasonable times, and stated that the children would continue to attend a certain school until further order of the court or the parties otherwise agreed.

Following the entry of the September 17, 2007 consent order, disagreements arose concerning plaintiff's parenting time. In December 2007, defendant moved back to New York with the children.

On December 24, 2007, plaintiff filed a motion in the trial court seeking, among other things, an order: requiring the immediate return of the children to New Jersey; enjoining defendant from removing the children from New Jersey; granting defendant reasonable parenting time in New Jersey; terminating plaintiff's child support obligation; and requiring defendant to pay child support. Defendant opposed the motion and filed a cross-motion seeking dismissal of plaintiff's application on the ground that the court lacked jurisdiction under the UCCJEA. On February 1, 2008, the trial court ...


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