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Michele Devito v. Jeffrey B. Jones

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 1, 2012

MICHELE DEVITO, PLAINTIFF-APPELLANT,
v.
JEFFREY B. JONES, DEFENDANT-RESPONDENT.

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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 long as it retained exclusive, continuing jurisdiction.

The pertinent legislative history explains that "a state which makes the initial custody determination has continuing exclusive jurisdiction if a party to the original custody determination remains in that state. . . . If it determines that another state has a more significant connection to the child, it may relinquish its authority." Senate Judiciary Committee Statement, supra. That description is best understood as a reference to the state's exclusive authority, pursuant to subsection a(1) of N.J.S.A. 2A:34-66, to determine whether "exclusive, continuing jurisdiction" is lost. Cf. N.J.S.A. 2A:34-71a (authorizing a court to "decline" to exercise jurisdiction in favor of "a more appropriate forum").

[Griffith, supra, 394 N.J. Super. at 141 n.5.]

When confronted with a motion to modify an initial custody order, "only a New Jersey court can determine that New Jersey has lost jurisdiction based on a lack of significant connection and substantial evidence." Id. at 141. The court determines "whether, during the time between the initial order and the filing of the motion for modification, circumstances have changed so as to divest this state of that jurisdiction." Id. at 140.

Pursuant to the UCCJEA, New Jersey's "exclusive, continuing jurisdiction" is retained "until . . . a court of this State determines that neither the child, [or] the child and one parent. . . have a significant connection with this State and that substantial evidence is no longer available in this State concerning the child's care, protection, training, and personal relationships[.]" N.J.S.A. 2A:34-66a(1). This court has held: "A literal reading compels the conclusion that jurisdiction is retained until both the requisite 'significant connection' and the requisite 'substantial evidence' are lacking. Stated in the affirmative, N.J.S.A. 2A:34-66a(1) provides that while this state has either the requisite 'significant connection' or 'substantial evidence,' its exclusive jurisdiction continues." Griffith, supra, 394 N.J. Super. at 142.

When determining whether a significant connection exists, the focus is on the "'relationship between the child and the [parent] remaining in the State with exclusive, continuing jurisdiction. . . .'" Id. at 145 (quoting 9 U.L.A. 674, comment 1 to § 202 (1999)). "When that relationship becomes too attenuated, 'exclusive, continuing jurisdiction' is lost." Ibid.

In this matter, the parties' property settlement agreement grants plaintiff "full residential custody" and affords defendant "reasonable and liberal visitation." Contrary to defendant's assertion, nothing suggests he was granted joint legal custody. See Beck v. Beck, 86 N.J. 480, 486 (1981) (stating joint legal custody allows both parents the equal right to legal and physical custody.). Defendant's post-judgment substance abuse modified the parenting time provisions of the final judgment of divorce, so that defendant had limited supervised visits. Thereafter, defendant's drug rehabilitation allowed reunification therapy that concluded in December 2009. Subsequently, it is agreed the child visited family in New Jersey in August 2010, when defendant exercised a visit. Defendant waited to move for parenting time, filing on May 3, 2011. Between January 1, 2010 and May 3, 2011, no other evidence reflects the child's connection to defendant in New Jersey, raising the question of whether the "significant connection," set forth in N.J.S.A. 2A:66a(1), which permits exercise of "exclusive, continuing jurisdiction" existed.

When reviewing the issue, the motion judge advised "I take a different approach." He mistakenly relied on defendant's continued contact with New Jersey along with the child's right to maintain a relationship with defendant as forming New Jersey's significant connection stating, "the defendant has a significant connection to this state as does [the child] by virtue of [defendant] living here." As we noted above, the statute requires examination of the child's connection to New Jersey, which is not derived from a parent's continued residence. Griffith, supra, 394 N.J. Super. at 145.

The issue posed by the facts in this matter is whether defendant had taken sufficient steps to secure the relational bond with the child in New Jersey prior to, or immediately after, the child's relocation to North Carolina. The facts in this record do not demonstrate a consistent connection to New Jersey following the child's relocation. Also, the record contains no evidence, let alone the required "substantial evidence," of the child's "care, protection, training, and personal relationships" within this state. N.J.S.A. 2A:34-66a(1).

In Griffith, supra, 394 N.J. Super. at 146-47, we noted:

The question whether the requisite "significant connection" remains is fact specific and the scenarios vary greatly from case-to-case. Generally, however, courts of other jurisdictions applying statutes similar to New Jersey's have found a "significant connection" when the parent who remains in the state in which the custody order was entered exercises parenting time.

Where there is visitation with a parent in the state, other factors (such as the length of time since the child has lived elsewhere, the child's involvement with other family members and activities in the state and agreements concerning the site for post-judgment litigation) are generally considered relevant to the question whether jurisdiction should be declined in favor of a more appropriate forum.

Here, the child moved to North Carolina and defendant's efforts to advance the parent-child relationship appear constrained. Generally, defendant ascribes the lack of an ability to develop regular parenting time to plaintiff's suspicions; she contends otherwise. He acknowledged his parenting time "has been infrequent, erratic, and [often been] subject to last-minute changes and delays [requested] by . . .

[p]laintiff." Also, defendant suggests, but attaches no documentary proof, that he sent numerous emails and made telephone calls to the child to no avail. Plaintiff disputes these assertions, stating she fully cooperated with the few visitation requests defendant made, ever concerned for the child's disappointment in failed promises. She also contends telephone contact was "sporadic" with weeks elapsing between calls and no emails or letters were ever sent.

Plaintiff, who has shouldered the responsibility for the care and security of the child since 2002, is understandably concerned in light of defendant's past. However, she must not be permitted to thwart the child's right to parenting time with defendant when it is in the child's best interests. Likewise, defendant must accept full responsibility for not developing a relationship from the time his child was two until he secured sobriety, and must recognize inconsistent visitation efforts may result in harm to the child. Above all, the court must be concerned with the child's needs for safety and security, which must always take priority over the desires of either parent.

In addressing the child's best interests, plaintiff mentions in passing the child suffers from asthma and lists the child's summer and school year activities. Based on these facts, she argues North Carolina is in the better position to determine parenting time if it is determined that New Jersey retains continuing exclusive jurisdiction. Admittedly, plaintiff's assertions are brief and do not precisely address the possible impact a modified parenting time schedule would have on the child. Nevertheless, if found to have jurisdiction, whether New Jersey should decline to determine defendant's parenting time requests must also be properly considered.

Whether another state is a more appropriate venue must be considered under an inconvenient forum analysis. Griffith, supra, 394 N.J. Super. at 148-49. The statute provides:

A court of this State that has jurisdiction under this act to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon the court's own motion, request of another court or motion of a party. [N.J.S.A. 2A:34-71a.]

This review includes consideration of past domestic violence between the parties, the length of the child's absence from New Jersey, the distance between the two interested states, the financial circumstances of the parties, the location of evidence necessary to reach the determination, including whether a child interview would be necessary, the ability of the forum to provide an expeditious determination, and each forum's familiarity with the issues and any other relevant facts. N.J.S.A. 2A:34-71b.

Following our review, we note the motion judge briefly mentioned some of these issues, stating there was "no indication of domestic violence," and the child "has only lived in [North] Carolina for about a year and a half," and "the parties were divorced in New Jersey and two motions post-judgment were filed in New Jersey." The additional factors were overlooked despite plaintiff's assertions that evidence regarding the child's health needs, schooling, and activities was centered in North Carolina. See Griffith, supra, 394 N.J. Super. at 150 (finding error where the motion judge "failed to give adequate consideration to the relevant statutory factors" in N.J.S.A. 2A:34-71b).

In summary, the trial court erred in its interpretation of the statutory requirements when determining jurisdiction under the UCCJEA. Moreover, on this issue, resolution of the competing factual assertions, as expressed in the parties' certifications, appear to require a plenary hearing. Finally, the motion judge neglected to consider whether New Jersey is the most appropriate forum for resolution of the issues in dispute.

We recognize additional delay exacerbates this situation, particularly in light of defendant's commendable efforts to rid himself of the scourge of addiction because he desires to fully embrace his role as a parent. We also are mindful that neither parent has the financial resources to further extend this litigation. But, a plenary hearing is necessary to address whether the child retains a significant connection to New Jersey to allow the court to continue to address the current and possible future parenting time. The Family Part shall undertake plenary review within sixty days of this remand.

We are constrained to reverse the July 11, 2011 order and remand the matter to the Family Part for further proceedings as discussed in this opinion.

Reversed and remanded.


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