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Michele Devito v. Jeffrey B. Jones

August 1, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-378-03.

Per curiam.


Submitted May 2, 2012

Before Judges Lihotz and Waugh.

Plaintiff Michele DeVito appeals from a July 11, 2011 order denying her request to dismiss defendant's motion to establish a parenting time schedule and other relief. Plaintiff argued New Jersey lost subject matter jurisdiction following the child's move to North Carolina, or, alternatively, the court should have declined to exercise jurisdiction in favor of North Carolina, as it was a more convenient forum to determine visitation in the child's best interests. Because we determine the Family Part failed to analyze the facts impacting whether the child retained "a significant connection with this State," which is essential for the continued subject matter jurisdiction over custody and parenting time, we reverse and remand for further proceedings.

Plaintiff and defendant were married on May 24, 1997, and moved to Wilmington, North Carolina. On October 6, 2000, their only child was born, and two years later the family relocated to New Jersey. The parties separated and divorced on August 20, 2003.

Throughout the marriage defendant struggled with cocaine addiction. In the course of the divorce proceedings, defendant admitted he had resumed drug and alcohol abuse. The parties agreed plaintiff would have sole legal and residential custody of their child. Defendant was arrested for driving under the influence in 2006, and, on April 9, 2008, was admitted to the Hunterdon Medical Center following an attempted drug overdose. As a result of defendant's drug dependence, he did not exercise visitation with the child and acknowledged "he has made little to no effort to see the [child] since May 2004[,]" when he participated in a supervised visit.

Defendant moved for resumption of parenting time with the parties' child, who was then eight years old. Plaintiff opposed defendant's motion and filed a cross-motion to relocate to North Carolina, which defendant did not oppose.*fn1 In a July 31, 2009 order, the judge granted plaintiff's relocation request, and based on defendant's "extensive prior drug use and addiction," ordered him to undergo a mental health evaluation. Thereafter, defendant filed a motion for commencement of reunification therapy prior to the child's January 2010 move to North Carolina. On December 18, 2009, the court granted the motion in part, ordering two sessions between the child and a therapist and requiring compliance with the recommendations of the reunification therapist. Plaintiff and the child moved as planned. In August 2010, defendant exercised parenting time when the child visited New Jersey and, in October 2010, traveled to North Carolina for a five-day visit with the child.

On May 3, 2011, defendant moved to establish a regular parenting schedule with the child, divide equally responsibilities and associated expenses of travel, set up Skype contact, and for other relief. Plaintiff filed a cross-motion seeking dismissal of defendant's motion because the court lacked jurisdiction or because North Carolina was a more convenient forum, requesting defendant complete an alcohol and drug abuse evaluation and pay her counsel fees and costs. On July 11, 2011, a different Family Part judge considered the parties' arguments. The judge denied plaintiff's application, specifically rejecting the jurisdictional challenge, and granted defendant's motion scheduling parenting time on the first weekend of each month. Furthermore, plaintiff and defendant were ordered to split visitation travel responsibilities and the associated expenses. This appeal ensued.

On appeal, plaintiff focuses her challenge on the trial judge's application of New Jersey's version of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), N.J.S.A. 2A:34-53 to -95. She argues the child moved to North Carolina sixteen months before defendant filed his motion and, thereafter, had no significant connection with New Jersey. Plaintiff asserts North Carolina is the proper venue to determine parenting time issues. However, defendant disagrees, asserting New Jersey retains continuing exclusive jurisdiction over this matter, as it is the forum where the initial custody decision was made, several post judgment motions were determined, reunification therapy occurred, and where he continues to reside.

We do not afford any special deference to "[a] trial court's interpretation of the law and the legal consequences that flow from established facts[.]" Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Our review is de novo. Ibid.

New Jersey adopted the UCCJEA in 2004. Dalessio v. Gallagher, 414 N.J. Super. 18, 22 (App. Div. 2010). The statute, which replaced the Uniform Child Custody Jurisdiction Act (UCCJA), N.J.S.A. 2A:34-28 to -52 (repealed), was designed to "avoid jurisdictional competition and conflict and require cooperation with courts of other states as necessary to ensure that custody determinations are made in the state that can best decide the case." Griffith v. Tressel, 394 N.J. Super. 128, 138 (App. Div. 2007). "The []UCCJEA defines the term 'child custody determination' broadly to include any 'judgment, decree or other order of a court providing for the legal custody, physical custody or visitation with respect to a child [, including] permanent, temporary, initial and modification order[s].'" Id. at 137 (alterations in original) (quoting N.J.S.A. 2A:34-54). The statute also defines the term "child custody proceeding" to include "a proceeding in which legal custody, physical custody or visitation . . . is an issue." N.J.S.A. 2A:34-54.

The UCCJEA prioritizes home state jurisdiction when determining a state's jurisdiction of a child custody dispute. See Dalessio, supra, 414 N.J. Super. at 22; S. Judiciary Comm., Statement to Senate Committee Substitute for Senate Bill No. 150 (2004) ("[The UCCJEA] gives priority to the home state as a ground for taking jurisdiction.") (reprinted following N.J.S.A. 24:34-53). Under the UCCJEA, a state with continuing exclusive jurisdiction is the only state that can modify a custody order. N.J.S.A. 2A:34-67.

Here, New Jersey entered the initial custody determination when the parties were divorced. Because it entered the custody determination in the first instance, the Family Part could modify its determination so ...

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