On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2492-10.
The opinion of the court was delivered by: Lihotz, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lihotz and St. John.
The opinion of the court was delivered by LIHOTZ, J.A.D.
Incident to the divorce of these parties to an international marriage, we review a jurisdictional dispute as it relates to custody of the parties' child, considering the application of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), N.J.S.A. 2A:34-53 to -95, and the doctrine of comity. Plaintiff Sadia Sajjad filed her dissolution complaint in New Jersey following the initiation of divorce and custody proceedings in Pakistan by defendant Sajjad Ahmad Cheema. The trial court dismissed plaintiff's divorce complaint with prejudice because a divorce had been granted in Pakistan. The collateral issues, including equitable distribution, alimony, and custody were dismissed without prejudice pending finalization of pre-existing custody litigation in Pakistan. We reverse and remand.
The parties solemnized their arranged marriage in a religious ceremony in Lahore, Pakistan on November 12, 2000. Their only child was born in the United Kingdom in the Spring of 2003.
Defendant, a financial analyst for Deutsche Bank, was promoted to "the position of Global Head of Exposure Management," and placed "on a temporary [i]nternational
[a]ssignment based in the United States of America" requiring the parties' relocation to the United States. In July 2007, the family moved to Edgewater and enrolled the child in a school in Ridgefield.
The entire family applied for and received permanent residency cards, effective July 6, 2007. In May 2009, defendant learned he would be transferred to Deutsche Bank's United Kingdom office as of October 2009. On June 7, 2009, plaintiff and the child left for Lahore, Pakistan.
Thereafter, the facts surrounding the parties' intentions and expectations are hotly disputed. In the proceeding before the Family Part, defendant submitted documentation suggesting he was a permanent domiciliary of the United Kingdom, and an "expatriate on a temporary assignment" to the United States. Defendant argued plaintiff and the child moved to Pakistan in the summer of 2009, intending to join him in the United Kingdom with no expectation of returning to the United States. He supported this with documents showing the child discontinued his Arabic/Islamic education in April 2009; stopped attending Islamic Tae Kwon Do in May 2009; and was withdrawn from his Ridgefield elementary school on June 3, 2009, because "the family w[ould] be relocating abroad." Defendant noted once in Pakistan, plaintiff and the child lived with her parents, she stored her jewelry in a local bank safe deposit box, and enrolled the child in school.
Plaintiff refutes most of defendant's contentions, insisting her trip to Pakistan was an annual family visit and she and defendant had every expectation of returning to the United States at the conclusion of defendant's assignment in the United Kingdom. She disavows knowledge of the child's withdrawal from school, religious education, and "religion-based physical training" classes. To support her position, she offered a letter from Deutsche Bank written to secure the child's re-entry to the United States in September 2009. The letter states:
[The child] is a lawful permanent resident of the United States. [Child]'s father, . . . is also a lawful permanent resident of the United States and will be completing a temporary foreign assignment at Deutsche Bank in London, England, United Kingdom . . . .
It is anticipated that [defendant] will remain in London for approximately two years. Upon completion of his temporary assignment, he will return to the United States to continue his employment with Deutsche Bank.
Plaintiff maintains the Pakistani arrangements were temporary, as evinced by the fact she and the child requested re-entry to the United States on September 10, 2009. She noted defendant intended to return to the United States, since before leaving for the United Kingdom, he requested a re-entry permit and only now suggests the documents were "to ease [the] transition in case Deutsche Bank UK assigned [him] to the United States in the future."
In any event, the family's return to New Jersey was brief. On September 18, 2009, the parties notified their landlord of their intent to vacate their apartment because they were "moving to another country." They cancelled their cable television service on September 23, 2009, sold their car on September 24, 2009, and on September 25, 2009, executed change of address forms submitted to the Department of Homeland Security listing, as their new permanent address, defendant's uncle's Vienna, Virginia address. On September 26, 2009, defendant left the United States for London. Defendant renewed his United Kingdom driver's license and Pakistani government identification card for Pakistanis living overseas, each reflected his United Kingdom address. Plaintiff traveled to Virginia, then left the United States for Pakistan on October 11, 2009, expecting to shortly join defendant in the United Kingdom.
Defendant visited his family in Pakistan on November 27, 2009. He claimed plaintiff refused to let him see the child and "threatened to abscond with [the child] to the United States and file false claims against [him] so that [he] could never see [the child] again." Plaintiff disputes these contentions, maintaining the family was together in her parents' home, during which defendant continued "to buy [her] gifts and jewelry[,] . . . go to dinner . . . [and] engage in marital relations."
On December 10, 2009, defendant filed a custody complaint with the Guardian and Wards Court in Lahore, Pakistan. The complaint was accompanied by defendant's application to place the child's name on the "exit control list," which prevented departure from Pakistan. On December 11, 2009, defendant initiated divorce proceedings in Pakistan then, the next day, returned to the United Kingdom. Plaintiff received notice of these proceedings in Pakistan on December 16, 2009.
Plaintiff returned to the United States on December 22, 2009, leaving the parties' child in the care of her parents in Lahore, Pakistan. She resided with her brother in Piscataway, and designated a different brother, who lived in Lahore, as her attorney-in-fact to participate on her behalf in the divorce and custody proceedings pending in that country's courts.
Plaintiff filed a challenge to the jurisdiction of the Guardian and Wards Court. On January 13, 2010, the reviewing judge concluded the exercise of jurisdiction was proper, finding "it [was] crystal clear that the minor [child] ordinarily reside[d] in Pakistan" in light of his physical presence in the country, his enrollment in a Pakistani school, and other contacts with the country, including the parties' marriage and pending divorce. Plaintiff appealed. The proceedings were stayed pending review by the District Court.
In a written opinion dated March 12, 2010, the district judge set aside the order of the Guardian and Wards Court, concluding the court lacked jurisdiction to consider defendant's request for custody of the parties' child. The District Court explained the child was born in the United Kingdom, educated in New Jersey, and held a residency visa from the United States. Moreover, the court noted plaintiff lived in the United States, defendant lived in the United Kingdom, and the child "has been made [a] scape goat [sic] and left at the mercy of remote relatives in Pakistan," which was "very badly [a]ffect[ing his] personality and would cause irreparable loss to his educational career." Accordingly, defendant's action was dismissed.
Defendant appealed the District Court's determination to the Lahore High Court. In that matter, plaintiff's counsel represented the child would remain in Pakistan and the Lahore High Court "suspended" the District Court's judgment, pending its review.
On December 16, 2009, and March 19, 2010, plaintiff's attempts to remove the child from Pakistan were thwarted by airport immigration officials because the child's name remained on the exit control list. On July 22, 2010, the intervention of United States Congressman Frank J. Pallone, Jr. secured the removal of the child's name from the exit control list and the child was returned to the United States. The child continues to reside with plaintiff in New Jersey.
Defendant requested the Lahore High Court order the child's return to Pakistan, reinstate the child's name on the exit control list, and initiate criminal charges against plaintiff for the child's unlawful removal. On August 4, 2010, the Lahore High Court granted defendant's request and ordered the child's return until the custody matter was concluded. Additionally, the Lahore High Court enjoined plaintiff "from initiating any legal proceedings in American jurisdiction" pending final disposition of the Lahore proceedings.
Contemporaneous to contesting the custody proceedings, plaintiff challenged the jurisdiction of the Chairman Arbitration Council to consider defendant's complaint for divorce. First, the Chairman rejected plaintiff's assertion regarding lack of notice, finding notice of the proceedings was delivered by registered mail, express courier service, as well as public notice in a "renowned newspaper in Pakistan[.]" Second, the Chairman found no flaw in the procedures initiating the proceeding, noting both parties were in Pakistan at the time the divorce complaint was filed. In his determination, however, the Chairman appeared to rely upon the initial jurisdictional determination by the judge of the Guardian and Wards Court; a decision that was later overturned. Plaintiff appealed, requesting a stay of the divorce proceedings pending appeal of the Chairman Arbitration Council's jurisdictional determination. The Lahore High Court entered a stay of the divorce proceedings on February 25, 2010.
Plaintiff also initiated a matrimonial proceeding in the Superior Court, by filing a January 25, 2010 complaint seeking dissolution of the marriage, custody of the child, child support, equitable distribution, and other relief. On defendant's motion, the complaint was dismissed without prejudice on June 11, 2010, "for lack of personal jurisdiction due to the failure of the [p]laintiff to properly serve the [d]efendant and file an appropriate Affidavit of Service."
On June 17, 2010, plaintiff filed a second complaint for
divorce and other relief and attempted personal service upon defendant in the United Kingdom. When service efforts were unsuccessful, she obtained an order permitting her to "serve
[d]efendant with a copy of the summons and complaint, via International Registered Mail and regular mail, at his last known address in London . . . [and] by publication of notice in The Times of London." Defendant claims plaintiff returned to ...