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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...