On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FM-06-447-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 5, 2011
Before Judges Ashrafi and Nugent.
Defendant Kevin Watkins lives in Kentucky. Plaintiff Terri Watkins lives in New Jersey with their son. The parties' parenting time dispute has evolved into a jurisdictional conflict between New Jersey and Kentucky under the Uniform Child Custody Jurisdiction and Enforcement Act, N.J.S.A. 2A:34-53 to -95, K.R.S. 403.800 to 403.880 (the UCCJEA). Defendant appeals from a May 6, 2010 Family Part order asserting New Jersey's jurisdiction over custody, parenting time, and support issues, requiring defendant to spend his parenting time in New Jersey, and directing the parties to provide financial information so that issues concerning support and childcare expenses could be decided. Defendant also appeals from the Family Part's denial of his motion to vacate the May 6, 2010 order or stay it pending appeal. Because we conclude Kentucky has exclusive jurisdiction under the UCCJEA, we reverse.
The parties were married in New Jersey on September 22, 1996, and divorced in Kentucky on October 31, 2003. They have one child, a son, born in 1999, who is developmentally disabled.
The parties married in New Jersey but eventually moved to Kentucky and remained there until they separated in 2002. Plaintiff returned to New Jersey with their son, where they have since resided. Defendant remained in Kentucky.
In November 2002, at plaintiff's request, the Cumberland County Board of Social Services (CCBSS) filed a complaint for child support in New Jersey on her behalf. On January 23, 2003, the court dismissed CCBSS's complaint.*fn1 The first order concerning child custody and parenting time was entered in Kentucky on January 10, 2003, on defendant's motion in the dissolution action. Plaintiff represented herself and appeared by telephone. The Kentucky court granted defendant's motion for joint custody, designated plaintiff as the primary residential custodian, and allowed defendant parenting time in Kentucky from January 4, 2003 until January 12, 2003, "as agreed by the parties." The court also ordered defendant to pay weekly child support of $50.
Three months later, on April 10, 2003, the parties entered into a property settlement agreement (PSA) in the Kentucky dissolution action. The PSA provided for joint custody, designated plaintiff as the primary residential custodian, fixed defendant's child support obligation, and established a plan for defendant to have parenting time in Kentucky during 2003 and 2004. The PSA did not conclude the Kentucky dissolution action.
Notwithstanding this fact, plaintiff filed a motion in New Jersey seeking sole custody. On August 20, 2003, though recognizing "joint custody was awarded in Kentucky," the Family Part entered an order stating the "child has lived in N.J. since Sept. 2002, sole custody is now with [plaintiff]." It also awarded defendant "open and liberal" parenting time in New Jersey only.*fn2
The parties were divorced two months later, on October 31, 2003, when the Kentucky court entered a Decree of Dissolution of Marriage. Plaintiff participated in the proceeding by telephone. The decree stated both plaintiff and defendant were "citizen[s]" of Kentucky and had been "for more than one hundred and eighty (180) days preceding the filing of the Petition for Dissolution of Marriage." The decree also stated the parties, "as agreed," would share joint custody, with plaintiff serving as the primary residential custodian, and defendant having "visitation in 2003 at any time he can travel to New Jersey." The court expressed concern that psychological and developmental evaluations of their son were pending, and determined he "should not be removed from the current environment in New Jersey until the evaluations have been completed." Additionally, "once visitation beg[an] outside of New Jersey" in 2004, the parties would equally divide transportation costs and the "best interest" standard would guide the specifics for times and dates. The decree explicitly stated that Kentucky "has jurisdiction over the subject matter and over the parties to this action and proper venue is in the Commonwealth of Kentucky."
The Kentucky court disposed of numerous motions between its entry of the divorce decree in October 2003 and the onset of the current dispute in December 2009. Plaintiff participated in the hearings by telephone and was represented by an attorney on at least one occasion. The motions concerned child support, medical insurance for their son, medical treatment while their son was in Kentucky, and defendant's parenting time.
Defendant exercised his parenting time through November 2008; however, he was injured in September of that year and was laid off, leaving him financially unable to purchase plane tickets to fly his son to Kentucky for parenting time in 2009. Meanwhile, according to plaintiff, their son's condition worsened, he underwent major surgery in November 2009, and he now experiences muscle tightness and difficulty walking.
The current custody dispute began when defendant attempted to arrange for parenting time in 2010. In response to defendant's request for dates, plaintiff provided two options. When defendant received no response to three emails attempting to confirm one of the options, he sent a letter by certified mail that was received by plaintiff on March 16, 2010. Meanwhile, on March 11, 2010, plaintiff had filed a New Jersey seeking a review of parenting time, medical reimbursement, and an increase in child support. The motion was not processed because it was improperly filed, but on March 17, 2010, plaintiff filed a corrected application in the Family Part.
After being served with plaintiff's motion, defendant filed a motion on March 31, 2010 in Kentucky to enforce his summer parenting time. He alleged plaintiff "attempted to transfer jurisdiction of this case to New Jersey by simply bringing an action in New Jersey previously*fn3 [and] [r]ecently, she has done the same thing again." Defendant also stated, "jurisdiction [has not] been transferred [and] [t]his Court in a prior order was emphatic to say that jurisdiction of this case had not been transferred."
In response to defendant's motion, plaintiff filed a motion in Kentucky requesting it relinquish jurisdiction to New Jersey. The Kentucky court delayed a hearing to permit plaintiff to supplement the record with the pleadings she filed in the New Jersey Family Part action, but denied the motion on May 19, 2010. On June 8, 2010, plaintiff filed a notice for an expedited appeal with the Kentucky Court of Appeals.*fn4
Meanwhile, on May 6, 2010, the Family Part conducted a hearing in which only plaintiff participated. The Family Part found the parties' son was "a child of New Jersey" and that New Jersey had original jurisdiction over the matter "because the first application was made in New Jersey." The court also stated that, even if it were mistaken in finding New Jersey had original jurisdiction, New Jersey had "temporary emergency jurisdiction" based on the child's serious medical needs. The court entered a conforming order on May 6, 2010, and attached written findings.
On June 10, 2010, the Family Part denied defendant's motion to vacate that order or, alternatively, to stay ...