June 16, 2010
NUBIA FUENTES, PLAINTIFF-APPELLANT,
VICENTE SEGUNDO FUENTES, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FD-18-150-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 4, 2010
Before Judges Wefing, Messano and LeWinn.
Plaintiff Nubia Fuentes*fn1 appeals from the June 23, 2009 order of the Family Part (the June 2009 order) that 1) registered the October 31, 2007 order of the "Venezuelan Court" (the foreign order); and 2) ordered her to return the parties' son to Venezuela. We have considered the arguments made in light of the record and applicable legal standards. We reverse and remand the matter for further proceedings consistent with this opinion.
Plaintiff was born in Colombia and is a United States citizen. Defendant is a citizen of Venezuela. The parties were married in Hillsborough, New Jersey on June 20, 2003, and a son was born in September. Approximately three months later, plaintiff resigned her position of employment, sold her home in New Jersey, and moved to Venezuela with defendant and their child.
Defendant owned a business in Venezuela that was also incorporated in Florida. Plaintiff has always maintained that the move to Venezuela was temporary, and that defendant represented his intention to return to the United States when his immigration status permitted. Indeed, the appropriate immigration forms were completed, forwarded to the Immigration and Naturalization Service (INS), and processed, so that defendant could acquire permanent resident status in this country. The record reveals that INS had scheduled an appointment for defendant's interview regarding his application.
Plaintiff has two children from prior relationships, and she sought court orders in this state permitting her to remove those children and relocate them to Venezuela. During 2004, plaintiff would return to the United States on occasion to facilitate visitation between those children and their respective fathers. The parties' infant son would accompany plaintiff on those trips. By the middle of 2005, however, the relationship between plaintiff and defendant had become strained. Plaintiff claimed that defendant misrepresented his intentions regarding employment in his business, and refused to support her attempts to find work, a process impeded by the limitations of her visa and the fact that she was not a citizen of Venezuela.
In June 2005, plaintiff left Venezuela with the couple's child claiming that she was making another trip to the United States to facilitate visitation between her older son and his father. She secured an apartment and full-time employment in Hillsborough, and, on July 12, 2005, she instituted a custody proceeding in the Family Part on the non-dissolution -- FD -- docket. Defendant appeared and contended that New Jersey lacked jurisdiction over the dispute; a plenary hearing was conducted.*fn2
In her written opinion that followed, the judge concluded that under the Uniform Child Custody Jurisdiction and Enforcement Act, N.J.S.A. 2A:34-53 to -95 (the UCCJEA), New Jersey was not the "home state" of the child because he had not resided here for six months prior to the initiation of the action. See N.J.S.A. 2A:34-54 (defining home state for purposes of the UCCJEA). The judge further noted that defendant had commenced a custody proceeding in Venezuela, and that New Jersey could only exercise jurisdiction if Venezuela deemed New Jersey to be the more appropriate forum. See N.J.S.A. 2A:34-70(a). The judge's September 21, 2005 order (the September 2005 order) reflected these findings and further ordered "that the Court shall communicate with the Venezuela court on the record to determine whether Venezuela declines to exercise jurisdiction . . . ." Lastly, the order provided that the "[c]court's prior order entered pursuant to its emergency jurisdiction shall remain in full force and effect until further order of th[e] [c]court."*fn3
In March 2006, plaintiff filed a complaint seeking a restraining order under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. A hearing was held on September 14, 2006. Although we have not been provided with the transcript of the hearing, or any order that resulted therefrom, plaintiff's complaint was apparently dismissed. On the same day, plaintiff filed a complaint for annulment in the Family Part under the matrimonial -- FM -- docket. She personally served defendant with the complaint in open court at the domestic violence hearing.
In that complaint, plaintiff alleged that at the time of the parties' 2003 marriage in New Jersey, unbeknownst to her, defendant had married another woman in Venezuela in 1997 and had not obtained a divorce.*fn4 Plaintiff did not specifically seek to vacate the September 2005 order, although her complaint sought:
1) custody of the child; 2) to limit "defendant's visitations . . . to supervised visitations"; and 3) child support, alimony, and counsel fees.
Defendant sought an extension of time to file an answer but never did, and default was entered. On April 18, 2007, a second Family Part judge granted plaintiff a judgment of nullity, awarded her full legal and physical custody of the child, granted defendant limited visitation solely in the United States, and ordered defendant to pay $238 per week in child support.
On September 12, 2007, defendant filed a pro se application for an order to show cause seeking to vacate the judgment of nullity with respect to the award of custody; he also sought limited visitation with his son pursuant to a Venezuelan court order entered in August. Plaintiff filed a verified answer and counterclaim in response; she requested that the judgment of nullity remain in effect, that the court retain jurisdiction over the child, and that defendant be compelled to pay child support and arrears that had accrued.
Although a hearing was scheduled for January 11, 2008 before a third Family Part judge, it never occurred. Defendant sought an adjournment, claiming an inability to obtain a visa. In June, plaintiff's counsel, after "many requests to determine the status of the matter and to schedule a hearing," was advised by the court that "'the entire file ha[d] been lost or c[ould] not be found.'" Counsel supplied copies of the various documents and pleadings, but no hearing ever took place.
On September 17, defendant filed a second application for an order to show cause requesting that the child "be immediately returned to Venezuela"; that he "be given temporary physical and legal custody" of his son; and that he be permitted to return to Venezuela with the child pursuant to the foreign order.
On February 25, 2009, the same judge who entered the September 2005 order scheduled a hearing for March 31, agreeing that she would consider all the issues raised in defendant's two applications and plaintiff's counterclaim. It is obvious from the transcript of the March 31 proceedings that the judge anticipated both parties would be present and that testimony would be presented. However, neither party appeared. The two attorneys indicated that they intended to proceed without any testimony.
Defendant essentially contended that the September 2005 order was still in effect, and that the Venezuelan court continued to exercise jurisdiction over the matter as reflected by the foreign order requiring the child be returned to Venezuela for a custody determination. He sought registration of the foreign order as provided for by N.J.S.A. 2A:34-79.
Plaintiff argued that relief from the September 2005 order was appropriate under Rule 4:50-1 based upon defendant's fraud in inducing her to marry him while he was still married to another woman. She further contended that New Jersey should maintain jurisdiction over the child given the 2007 judgment of nullity that granted plaintiff custody.
On June 23, the judge entered the order under review accompanied by a letter opinion. After reciting the convoluted procedural history, the judge concluded that since the September 2005 order was entered, "[p]laintiff ha[d] never filed for . . . affirmative relief" pursuant to Rule 4:50-1, instead choosing to raise "the arguments with respect to the impact of [d]efendant's alleged fraud . . . as opposition to [d]efendant's various motions." The judge further concluded without any explanation that "the alleged fraud . . . ha[d] no bearing upon jurisdiction for the custody case . . . [because] [t]he validity of the marriage of the parties would not have any impact upon the jurisdiction determination made . . . pursuant to the [UCCJEA]." As a result, the judge concluded that "the [foreign order] [wa]s to be registered in the New Jersey court and pursuant to that order the minor child sh[ould] be returned to Venezuela" following the current school year.
On July 31, plaintiff filed her appeal and sought a stay from the Family Part. On August 24, defendant filed a third application for an order to show cause seeking an order: (1) granting him physical and legal custody of his son; (2) providing law enforcement assistance in obtaining custody and ensuring his son's safe return to Venezuela; (3) compelling plaintiff to provide the court with the location of the child; (4) requiring plaintiff to supply his son's United States passport, Colombian passport (if any), social security card, immunization and medical records, and school records; (5) requiring plaintiff to turn over the child at the Somerset County Courthouse; (6) holding plaintiff in contempt of the June order for interfering with the return of the minor child to Venezuela; (7) vacating the child support order and any arrears; (8) ordering plaintiff to pay counsel fees and costs; and (9) denying plaintiff's request for a stay.
On October 23, a fourth Family Part judge granted plaintiff's request for a stay pending appeal, and denied all of defendant's requested relief, except that plaintiff was ordered to provide defendant with the whereabouts of the child.
We consider plaintiff's contention that the September 2005 order should be vacated pursuant to Rule 4:50-1 because of defendant's fraudulent conduct. In pertinent part, the Rule provides:
On motion, with briefs, and upon such terms as are just, the court may relieve a party . . . from a final judgment or order for the following reasons: . . .; (b) newly discovered evidence which would probably alter the judgment or order . . .; (c) fraud . . ., misrepresentation, or other misconduct of an adverse party . . . ; or (f) any other reason justifying relief from the operation of the judgment or order. [Emphasis added.]
"The motion shall be made within a reasonable time, and for reasons . . ., (b) and (c) . . . not more than one year after the . . . order . . . was entered . . . ." R. 4:50-2. The motion judge concluded that plaintiff had never affirmatively moved for relief from the September 2005 order in a timely fashion. We disagree.
Within one year of the September 2005 order, plaintiff filed a complaint for nullity that, among other things, specifically alleged defendant's fraudulent conduct and sought custody of her child. While the complaint did not expressly seek vacation of the September 2005 order, such relief was implicit. See Pressler, Current N.J. Court Rules, comment 1 on R. 4:50-1 (2010) ("Where a party files a separate complaint the import of which is to seek relief under this rule rather than a proper motion . . ., the court should permit such technical amendments as are necessary in order that the merits may be reached.").
Even if we were to conclude that by filing her annulment action plaintiff had not complied with the time frames contained in Rule 4:50-2, consideration of her argument on the merits was appropriate under Rule 4:50-1(f), to which those time limits do not apply. A request for relief under subsection (f) need only "be made within a reasonable time." R. 4:50-2.
As the Supreme Court has recently noted, "'No categorization can be made of the situations which would warrant redress under subsection (f). . . . [T]he very essence of (f) is its capacity for relief in exceptional situations. And in such exceptional cases its boundaries are as expansive as the need to achieve equity and justice.'" DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 269-70 (2009) (quoting Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)) (citation and emphasis omitted). "[A]n applicant's right to relief [under subsection (f)] depends upon the totality of the circumstances and . . . the correctness or error of the original judgment is ordinarily an irrelevant consideration." Pressler, supra, comment 5.6.1 on R. 4:50-1(f). See In re Guardianship of J.N.H., 172 N.J. 440, 476 (2002) ("The issue is not the rightness or wrongness of the original determination at the time it was made but what has since transpired or been learned to render its enforcement inequitable.").
We conclude that plaintiff implicitly sought to vacate the September 2005 order by filing the annulment complaint in September 2006 to which defendant never filed an answer. Having secured the judgment of nullity and the attendant relief of custody of her son, it was not incumbent upon plaintiff to do anything further. When defendant filed his request for an order to show cause in September 2007, plaintiff filed timely opposition and again raised the argument that contrary to the September 2005 order, defendant's fraudulent conduct was a basis for the exercise of the court's jurisdiction over the matter and that the award of custody in the judgment of nullity should remain in effect.
Although viewing plaintiff's request as untimely and procedurally infirm under Rule 4:50, the judge considered the merits of the argument to the extant that she determined defendant's "alleged fraud . . . ha[d] no bearing upon jurisdiction for the custody case . . . [because] [t]he validity of the marriage of the parties would not have any impact upon the jurisdiction determination made . . . pursuant to the [UCCJEA]." She failed to explain, however, why she reached this conclusion, except to reiterate that her initial determination made in 2005 was correct under the UCCJEA. Additionally, while recognizing the existence of the intervening judgment of nullity, the judge never addressed that judgment's award of custody to plaintiff.
Pursuant to Rule 1:7-4(a), "[t]he court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right . . . ." "'Meaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion.'" Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008) (quoting Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990)). In this case, we are unable to determine why the judge concluded defendant's alleged fraudulent conduct did not matter for purposes of reconsidering the September 2005 order, or why the intervening judgment of nullity essentially had no effect on the custody decision. We therefore must reluctantly remand the matter to the Family Part for further proceedings. We make these observations for purposes of providing guidance regarding some of the issues raised by the parties that must be addressed on remand.
"New Jersey courts are to give full faith and credit to child custody orders issued from foreign nations except when 'the child custody law of a foreign country violates fundamental principles of human rights or does not base custody decisions on evaluation of the best interests of the child.'" J.A. v. A.T., 404 N.J. Super. 132, 143 (App. Div. 2008) (quoting N.J.S.A. 2A:34-57(c)). A foreign custody order can be registered in New Jersey, N.J.S.A. 2A:34-79(a) and (b), and the validity of such an order may only be challenged if (1) the foreign court lacked jurisdiction; (2) the foreign order "has been vacated, stayed, or modified"; or (3) the challenging party never received proper notice. N.J.S.A. 2A:34-79(d).
In cases decided prior to the enactment of the UCCJEA, we have considered a party's wrongful conduct in securing a foreign court's jurisdiction, and whether the foreign court's judgment should be accorded full faith and credit in light of that conduct. For example, in Van Haren v. Van Haren, 171 N.J. Super. 12, 13-16 (App. Div. 1979), a case that pre-dated both the UCCJEA, and its predecessor, the Uniform Child Custody Jurisdiction Act (UCCJA), N.J.S.A. 2A:34-28 to -52 (repealed December 13, 2004), we considered whether New Jersey courts were obligated to give full faith and credit to a South Carolina custody award made in favor of the defendant father who had abducted the children from New Jersey, even though the plaintiff mother had herself subsequently abducted the children and returned them to New Jersey. Applying the principles of the UCCJA, which had been enacted after the trial court's decision, we concluded that "South Carolina lacked UCCJA jurisdictional prerequisites in that the father who brought the petition there had wrongfully taken the children from New Jersey . . . ." Id. at 20. As a result, we affirmed the trial court's decision that awarded custody to the mother despite her violation of the South Carolina order. Id. at 23.
In Swire v. Swire, 202 N.J. Super. 289, 295 (App. Div. 1985), a case decided under the UCCJA, we concluded that the New York court's exercise of jurisdiction and award of custody to the defendant father was not "entitled to recognition and enforcement . . . because the jurisdictional prerequisites . . . were not met . . . ." Despite recognition that the plaintiff mother had violated the custody order, we remanded the matter to the trial court to determine whether New Jersey "should assume jurisdiction notwithstanding the bar of N.J.S.A. 2A:34-36 because it is required to in the interests of the two . . . children."*fn5 Id. at 296.
The UCCJEA specifically addresses the converse situation, i.e., where a parent seeking to invoke New Jersey's jurisdiction engages in wrongful conduct. N.J.S.A. 2A:34-72(a) provides that a "court shall decline to exercise its jurisdiction" if a party "invoking the jurisdiction has engaged in unjustifiable conduct . . . ."
The parties have not briefed, and the judge and the parties did not address, what implications, if any, this provision of the UCCJEA and defendant's conduct in general should have regarding defendant's application for custody in Venezuela, the continuing exercise of jurisdiction by the Venezuelan court, and the Family Part's conclusion that defendant's alleged fraud "had no bearing upon jurisdiction." In other words, assuming arguendo defendant fraudulently induced plaintiff to marry in 2003 when he was still married to another woman, and, as a result, the parties relocated to Venezuela, is it appropriate that defendant should benefit from that conduct, i.e., vest Venezuela with jurisdiction over issues regarding the custody of a citizen of the United States, who, absent defendant's fraud, might never have been physically present in Venezuela? We view resolution of that question as critical to invocation of jurisdiction under the UCCJEA, and the record, as it now exists, does not adequately address the issue.
Additionally, New Jersey has long recognized that "[a] marriage contracted while one of the parties is lawfully married to another is void ab initio and not merely voidable." Hansen v. Fredo, 123 N.J. Super. 388, 389 (Ch. Div. 1973) (citations and emphasis omitted). Thus, by alleging and proving defendant's bigamous relationship, plaintiff was entitled to whatever benefits flowed from the conclusion that she was never married to defendant.
In the foreign order, the Venezuelan court references the judgment of nullity which was apparently supplied by plaintiff through her local counsel. Curiously, however, the Venezuelan court only notes that the judgment of nullity gave plaintiff custody and permitted defendant limited visitation. Indeed, it is apparent from the prefatory portions of the foreign order that the Venezuelan court referred to the parties as being married despite the existence of the judgment of nullity. We are uncertain, therefore, whether the Venezuelan court recognized, in the first instance, that under New Jersey law the parties' marriage was void, and that defendant's alleged fraudulent conduct was the basis for the nullification of the marriage. It is clear from the Venezuelan court's ruling that it never considered those factors in reaching its decision. See J.A., supra, 404 N.J. Super. at 144-46 (affirming the trial court's decision not to register a foreign custody decree even though Greece was the children's home state and the mother first filed the application for temporary custody of the children in a Greek court because it was unclear "what evidence was submitted, the reliability of that evidence, and how the Greek court evaluated the evidence in reaching its conclusions . . .").
We are also troubled by the procedural aspects of this case. Plaintiff was granted a judgment of nullity and custody of her son under the FM docket in 2007. We have not been provided with a transcript of the proceedings that culminated in that judgment, but we must assume that the judge hearing that aspect of the case was familiar with the proceedings that had previously taken place under the FD docket because they were mentioned in plaintiff's complaint. Despite the existence of the September 2005 order, the FM judge concluded that plaintiff was entitled to custody of her son and awarded plaintiff custody in the judgment.
As we alluded to above, in the written opinion that accompanied the June 2009 order, while recognizing the existence of the judgment of nullity, the judge never addressed the judgment's award of custody to plaintiff. Therefore, we cannot discern whether the judge considered the intervening custody award, and, if she did, why she concluded it was not entitled to any deference. See R. 1:7-4. We raise this issue because in light of our prior discussion, it is possible that the FM judge considered some of the jurisdictional and equitable questions we have raised, and decided them in favor of plaintiff, i.e., specifically modifying the September 2005 order based upon defendant's fraudulent conduct. Given the state of the appellate record, we simply cannot tell if that occurred.
We are, therefore, compelled to reverse the June 2009 order and remand the matter to the Family Part for further proceedings. On remand, the judge shall consider whether defendant's alleged fraud should indeed have an impact upon the "issue of jurisdiction" under the UCCJEA, giving the parties the opportunity to fully brief the issue and the judge the opportunity to consider those legal arguments. The judge may also consider whether plaintiff's invocation of the New Jersey court's jurisdiction was barred by her "unjustifiable conduct" --her unilateral decision to leave Venezuela in 2005 -- pursuant to N.J.S.A. 2A:34-72(a).*fn6 We further leave to the sound discretion of the judge whether a plenary hearing is necessary to resolve any disputed facts, fully recognizing that the judge believed the taking of testimony might be necessary when she considered oral argument in March 2009.
In light of our disposition, we need not consider the other issues plaintiff raises regarding the failure on the part of the judge to address the relief requested in her counterclaim. We believe those arguments may be appropriately addressed in the context of the remand hearing. Regarding defendant's argument that the judgment of nullity should be vacated for lack of proper service of the complaint, or pursuant to Rule 4:50, we note that he has not filed any cross-appeal. We refuse to consider the issue.
We would be remiss if we did not raise one other concern that is not fully explained by the record. In filing opposition to plaintiff's request for a stay pending appeal, defendant requested an order compelling plaintiff to disclose the whereabouts of his son. That relief was granted by the Family Part, though we have no idea how the information was conveyed. In any event, in his brief and without citation to the record, defendant alludes to the fact that plaintiff and the parties' son are now in Connecticut. We believe it is incumbent upon the judge on remand to consider the question of plaintiff's current residence and whether she may justly continue to invoke the jurisdiction of this court and the trial court.
Reversed and remanded. We do not retain jurisdiction.