August 16, 2011
KAMRAN CHAUDHRI, PLAINTIFF-APPELLANT,
RAELENE BIRKETT, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FD-09-1605-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 25, 2011
Before Judges Yannotti, Espinosa and Skillman.
The parties, who have never married, had a child together, "R.," in April 2007 when both were residents of New York. Thereafter, plaintiff moved to New Jersey. Each of the parties filed complaints for custody within days of each other in December 2009, the plaintiff in New Jersey and defendant in Kings County, New York. After communicating with the judge handling the matter in New York, the judge in New Jersey deferred jurisdiction to New York, where custody was awarded to defendant. Plaintiff appeals from an order that dismissed his complaint for custody, acknowledged the exercise of jurisdiction in New York and directed that all further motions and applications should be filed in New York. For the reasons that follow, we affirm.
After plaintiff acknowledged paternity in May 2007, the parties entered into an informal agreement regarding custody, visitation and support that appears to have been satisfactory until late 2009. Plaintiff described the arrangement as one in which they were "splitting time with [R.] almost equally since birth. In defendant's brief, she states they agreed she would have primary residential custody, he was allowed liberal visitation rights, and they "co-parented their daughter and shared in decision making equally" until November 2009.
On December 4, 2009, plaintiff filed a complaint for custody of R. in New Jersey in which he alleged defendant was "morally unfit to be entrusted with the care, custody, education and the maintenance" of R. and that the complaint was necessitated by her "erratic and unpredictable behavior coupled with poor parenting and decision making."
In filing the application for custody, plaintiff was required to comply with the requirements of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).*fn1
Specifically, N.J.S.A. 2A:34-73(a) states that, unless a party seeks an exception to such disclosure,
[E]ach party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, under oath as to the child's present address, the places where the child has lived during the last five years, and the names and present addresses of the persons with whom the child has lived during that period.
Plaintiff failed to provide the specific information required. Instead, he represented that R. "presently is in [his] custody[.]" In a supporting certification, plaintiff also stated that R. "spends the majority of her time with [him] in Hoboken, NJ, although the defendant has a generous visitation schedule." Not only did these statements fail to satisfy the statutory requirements, they were contradicted by other representations in his complaint and supporting certification. In his complaint, he states he had been trying to secure a written custody and support agreement with defendant since R.'s birth and had only succeeded in getting "an oral agreement splitting custody[.]" His supporting certification includes similar statements regarding splitting time "almost equally." His assertion of having custody is further undercut by complaints in his certification about defendant "currently keeping [R.] away from [him]," canceling a dental appointment to prevent him from seeing R., and references to dates he was "scheduled to have [R.]" that defendant thwarted by keeping R. out of daycare. It can reasonably be inferred from these complaints that defendant, rather than plaintiff, had primary authority over R.'s schedule.
On the day after she was served with the complaint, defendant filed a petition for custody, dated December 8, 2009, in Kings County, New York. In her petition, defendant complied with the requirements of the UCCJEA, providing the name, date of birth, and address of R., and, as to R.'s residence for the last five years, stated that R. lived with her at her Brooklyn address since birth. See N.J.S.A. 2A:34-73; N.Y. Dom. Rel. Law §76-h. The New York court scheduled a hearing for January 6, 2010.
After being served with defendant's petition, plaintiff filed an order to show cause in which he asked the New Jersey court to assume jurisdiction, award primary custody of the child to him and parenting time to defendant, secure his previously agreed upon time with the child at Christmas and the production of the child's birth certificate and social security card. Still, he did not provide the information required by N.J.S.A. 2A:34-73. The New Jersey court responded to what it described as "an emergency application for custody," by conducting a hearing on December 23, 2009. Defendant, who appeared pro se, stated she was informed of the hearing by email that morning. Upon inquiry from the court, she also stated she and R. had lived in Brooklyn for three years; she had lived in New York City prior to R.'s birth and she had never lived in New Jersey. The court declined to decide the custody issue that day, stating,
There may be issues involving jurisdiction as to whether New York should hear this case or, New Jersey should hear this case. And that may require a plenary hearing where people have to testify, whether it be here or in New York.
Accordingly, the trial court limited its rulings to a temporary custody order that covered visitation during Christmas Eve and Day, confirmed plaintiff's ability to pick their child up from day care, and ordered the parties to appear for a hearing on January 15, 2010.
Defendant appeared in Kings County Family Court on January 6, 2010, represented by counsel. Plaintiff declined to appear and his counsel did not appear due to a conflict. The court adjourned the matter until January 8, 2010.*fn2
On January 7, 2010, plaintiff filed a second order to show cause, asking, among other things, for the court to assume jurisdiction to the exclusion of the Kings County court. Although he provided a schedule to support his contention that R. spent more nights with him than with defendant in the last year, plaintiff still failed to provide the detailed information required by N.J.S.A. 2A:34-73.
Plaintiff again asked the court to assume jurisdiction to the exclusion of the Kings County court. His attorney contended that plaintiff was the "defacto" parent of primary residence because he had eighteen more overnight visits than defendant in the last year. Defendant's attorney, who had twenty minutes to prepare for the hearing, disputed this contention. He stated, "[f]irst and foremost," the case presented "a question of jurisdiction" and represented that he could present evidence showing the child was born in New York, went to day care in New York, her primary doctors since her birth are in New York and defendant had the child more days than plaintiff - in New York.
The trial court noted that, pursuant to an order entered in New York in December, the return date on defendant's petition was January 6; neither plaintiff nor his attorney appeared, and the New York court proceeded in their absence. Accordingly, the New Jersey court entered an order directing the parties to appear before the Kings County court for the scheduled appearance on January 8, 2010, and before the New Jersey trial court on the previously scheduled date of January 15, 2010 (Pa47).
During the course of the January 7 proceedings, the judge indicated his availability to be contacted by telephone when the parties appeared in court in New York at 3:00 p.m. on the following day. The judge stated, "I want someone to . . . call me tomorrow at three o'clock, 3:30 and let me know what's going on, if I can participate in helping the case move along; on either side, New Jersey or New York." Neither attorney objected to telephone contact between the two judges. In fact, plaintiff's counsel stated he had the Kings County judge's telephone number with him and was going to suggest such a call. Before the proceedings were over, the trial judge stated that he intended to conduct a conference call with the Kings County judge and parties' counsel.
On January 8, 2010, the parties appeared in Kings County Family Court. In their next appearance in New Jersey on January 15, 2010, plaintiff's counsel described what occurred in New York on January 8:
[W]e went before the referee, which we were scheduled to do. The matter of jurisdiction . . . was going to be referred to a Judge Graham, who's [sic] number I have here. And who I think is - expecting a call from you sometime today and I can certainly furnish that number to the Court, whenever the Court would like to telephone him.
We entered into a temporary order, which is essentially a shared custody order . . . .
Defendant's attorney, who again appeared by telephone, explained that, because there was a jurisdictional issue, the magistrate assigned to the case lacked the authority to decide the issue and the matter had to be decided by a Supreme Court judge sitting in Family Court. He also suggested that the New Jersey judge call the New York judge.
During the course of the January 15 proceedings, the New Jersey judge expressed the view that a plenary hearing would be necessary to determine custody if the parties did not agree. He agreed with the attorneys' suggestion and stated he would call the New York judge to discuss who would conduct the hearing.
The court told defendant's counsel, who was appearing by telephone, that he could hang up and would be called after the conversation. Defendant's counsel stated that he assumed "everything's going to be off the record anyway." The judge replied, "Yea. Well. I'll go on the phone with him and speak to him separately." Plaintiff's counsel, who provided the New York judge's telephone number to the court, did not object to this procedure.
After a telephone conference with the New York judge, the January 15 proceeding was resumed on the record and the court stated, "I've had an opportunity to speak to Judge Graham at - concerning the possible conflict we have. And he said, that he insists that he wants to hear the case. So, the reality is he told me that there's a date for February the 11th . . . ." The court confirmed that the parties were aware of that scheduled date and advised them that Judge Graham "expects everybody to show up." The New Jersey judge then suggested the nature of proofs to be submitted. Plaintiff's counsel asked if the New Jersey judge wanted copies of the papers submitted but did not pose any objection to the procedure followed on that date or to the fact that the matter would proceed in New York.
An order dated February 24, 2009,*fn3 was entered by the Hon. Bernard J. Graham of the Family Court in Kings County in which the court found jurisdiction appropriately venued in New York and stated the following reasons:
Evidence and credible testimony at hearing supports the petitioner's contention that New York is the appropriate jurisdiction for this matter.
The child was born in New York. The child has the dentist, pediatrician and daycare in New York.
Both parties resided in New York at the time of the child's birth.
The Court has considered the filing dates of both petitions and the filing by the father when the mother was out of the country is not determinative of jurisdiction.
New Jersey by the [trial judge], has consented to New York exercising Jurisdiction in this matter and the requirements of the UCCJEA have been satisfied.
On February 25, 2010, the New Jersey court entered an order which stated, based upon the representations of counsel, "NEW YORK TOOK JURISDICTION OF THIS CASE ON 1-25-10. THIS CASE IS HEREBY CLOSED. ANY FUTURE MOTIONS - APPLICATIONS TO BE FILED IN NEW YORK"
Plaintiff filed a notice of appeal from this order and raises the following arguments for our consideration:
THE TRIAL COURT ERRED BY PERMITTING THE KING'S COUNTY, NEW YORK COURT TO DECIDE JURISDICTION, AS NEW JERSEY WAS THE PROPER VENUE PURSUANT TO THE UCCJEA POINT II
DEFENDANT NEVER EITHER FORMALLY OPPOSED THE NEW JERSEY ACTION NOR FILED ANY MOTIONS CONTESTING NEW JERSEY'S JURISDICTION OF THE DISPUTE POINT III
DEFENDANT WAIVED DEFENDANT'S RIGHT TO CHALLENGE JURISDICTION SINCE DEFENDANT APPEARED IN TWO (2) HEARINGS HELD IN THE NEW JERSEY ACTION POINT IV
THE TRIAL COURT ERRED WHEN DECIDING THAT THERE EXISTED A JURISDICTIONAL QUESTION AFTER BEING PRESENTED CONTRARY EVIDENCE
THE TRIAL COURT ERRED BY PERMITTING THE KINGS COUNTY, NEW YORK COURT TO DECIDE JURISDICTION
SINCE DEFENDANT'S NEW YORK FILING WAS RETALIATORY IN NATURE POINT VI
THE TRIAL COURT ERRED BY FAILING TO APPLY THE "FIRST TO FILE" RULE AND THE UCCJEA TO THIS CASE POINT VII
PLAINTIFF WAS DEPRIVED OF DUE PROCESS WHEN THE TRIAL COURT DISMISSED PLAINTIFF'S CASE WITHOUT FIRST CONDUCTING A PLENARY HEARING POINT VIII
THE TRIAL COURT ERRED BY PERMITTING DEFENDANT TO SUCCESSFULLY FORUM SHOP FOR A MORE PREFERABLE VENUE POINT IX
THE DOCTRINE OF UNCLEAN HANDS PRECLUDES TRANSFER OF THE CASE FROM NEW JERSEY TO NEW YORK After carefully reviewing the briefs, record and arguments of counsel, we are satisfied that none of these arguments has merit.
The thrust of plaintiff's appeal is that the New Jersey court erred in failing to exercise jurisdiction over this custody dispute. He argues that because he "filed first" in New Jersey, the court was required to exercise jurisdiction. Pursuant to the "first-filed" rule, "'the court which first acquires jurisdiction has precedence in the absence of special equities.'" Sensient Colors, Inc. v. Allstate Ins. Co., 193 N.J. 373, 386 (2008) (quoting Yancoskie v. Del. River Port Auth., 78 N.J. 321, 324 (1978))(emphasis added). However, this case is not, as plaintiff argues, "a simple matter of 'who filed first.'" In the first instance, the deficiencies in plaintiff's pleadings posed a serious impediment to the New Jersey court's acquisition of jurisdiction over this custody dispute. Moreover, this matter is governed by the UCCJEA. Therefore, a determination regarding jurisdiction is informed by the "central purposes" of the UCCJEA, which "include avoidance of jurisdictional competition and conflict and promotion of cooperation between courts to ensure that custody determinations are rendered by a court of the state that 'can best decide that case'" in the interest of the child. Griffith v. Tressel, 394 N.J. Super. 128, 138 (App. Div. 2007).
Pursuant to the UCCJEA, the "exclusive jurisdictional basis for making a child custody determination by a court" is the following:
[A] court of this State has jurisdiction to make an initial child custody determination only if:
(1) this State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State;
(2) a court of another state does not have jurisdiction under paragraph (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction . . . and:
(a) the child and the child's parents, or the child and at least one parent . . . have a significant connection with this State other than mere physical presence; and
(b) substantial evidence is available in this State concerning the child's care, protection, training and personal relationships[.] [N.J.S.A. 2A:34-65; N.Y. Dom. Rel. Law § 76 (emphasis added).]
The determination of the child's "home state" is therefore a threshold determination. "Home state" is defined as "the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding." N.J.S.A. 2A:34-54 and N.Y. Dom. Rel. Law § 75-a. If another state has jurisdiction under N.J.S.A. 2A:34-65(a)(1), "a New Jersey court cannot assume 'significant connection' jurisdiction over an initial child custody determination under N.J.S.A. 2A:34-65(a)(2)" unless the home state declines jurisdiction and the other statutory requirements are satisfied. Dalessio v. Gallagher, 414 N.J. Super. 18, 23 (App. Div. 2010).
Because no plenary hearing was conducted in New Jersey, the record before us is sparse, consisting of little more than the certifications submitted to the courts in support of the conflicting petitions. As previously noted, defendant's filing in New York contained the information required by the UCCJEA as a preliminary basis for the exercise of jurisdiction and, despite his multiple submissions, plaintiff failed to do so. The requirements to provide the child's address history and with whom the child has lived for five years ensure that, at the outset of the proceeding, the court has sufficient information to make a preliminary determination as to whether it has jurisdiction to decide the matter. When such information is not provided, "the court, upon its own motion or that of a party, may stay the proceeding until the information is furnished."
In addition to failing to provide the required information, plaintiff's certification failed to establish that New Jersey was R.'s "home state." Although he certifies that R. "spends the majority of her time" with him in New Jersey, he also states, inconsistently, that the parties "have been splitting time with [R.] almost equally since birth." His certifications fail to state, even conclusorily, that R. has "lived with [him] . . . for at least six consecutive months immediately before the commencement of" his child custody complaint was filed. See
N.J.S.A. 2A:34-54; N.Y. Dom. Rel. Law § 75a. He never refutes that R.'s daycare is in Brooklyn and, in fact, refers to defendant's ability to keep R. from him by taking her out of daycare. Plainly, the undisputed fact that R. attends daycare in Brooklyn is inconsistent with the unstated but necessary premise to plaintiff's application, that R. has lived with him in New Jersey for at least six consecutive months.
Here, plaintiff's failure to provide the information required by N.J.S.A. 2A:34-73 provided the trial court with the authority to stay the New Jersey proceeding sua sponte until the information was provided. We are constrained to note that if the information regarding R.'s address history had been provided, it was likely to support a finding that New York, rather than New Jersey, was her "home state." Further, even if we disregard his failure to meet the requirements of N.J.S.A. 2A:34-73, plaintiff failed to set forth facts that established New Jersey as R.'s home state. In short, his deficient filing in New Jersey did not create any right to have the custody determination be made in New Jersey to the exclusion of New York.
At the time of the first court appearance in New Jersey, the judge was aware that a custody proceeding had been initiated in New York within days of plaintiff's petition. N.J.S.A. 2A:34-70(b) requires the court to "examine the court documents and other information supplied by the parties pursuant to" N.J.S.A. 2a:34-73 "before hearing a child custody proceeding[.]" The purpose for such examination is to determine whether "a child custody proceeding was previously commenced in a court in another state having jurisdiction substantially in accordance with" the UCCJEA. Ibid. If that is the case, the New Jersey court is required to "stay its proceeding and communicate with the court of the other state." Ibid.
The New Jersey judge was aware that a proceeding had been commenced, virtually simultaneously, in New York. No hearing had been conducted in either state and, as noted, plaintiff's submissions failed to establish that New Jersey was R.'s home state. Under the circumstances, we view the court's decision to communicate with the New York court as a prudent exercise of judicial discretion consistent with the overriding policy of the UCCJEA for custody determinations to be made in the state that "can best decide that case" in the interest of the child, i.e., the child's home state.
N.J.S.A. 2A:34-62(a) allows a New Jersey court to "communicate with a court in another state concerning a proceeding arising under this act." The statute also provides that the court "may allow the parties to participate in the communication" and if they are not able to do so, "the parties shall be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made." N.J.S.A. 2A:34-62(b). Communications between courts on "schedules, calendars, court records and similar matters" are permitted without notice to the parties and do not require a record to be made. N.J.S.A. 2A:34-62(c).
In this case, the parties did not participate in the communication between the two courts and no record was made of the communication. However, the record shows that counsel for both parties were in agreement with the procedure the trial judge stated he would follow. It could be argued that notice and a record were unnecessary because the subject matter of the communication was procedural in nature, relating to the scheduling of a plenary hearing to determine which was the home state. However, more important, neither party was prejudiced because each had "the opportunity to present facts and legal arguments before a decision on jurisdiction [was] made."
We are satisfied that the trial court did not err in deferring to the exercise of jurisdiction by New York under the facts of this case and that the remaining arguments raised by plaintiff lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).