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Alison Tatham v. Scott John Tatham

February 27, 2013

ALISON TATHAM, PLAINTIFF-APPELLANT,
v.
SCOTT JOHN TATHAM, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-70-12D.

The opinion of the court was delivered by: Fisher, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued Telephonically February 7, 2013

Before Judges Fisher, Alvarez and Waugh.

The opinion of the court was delivered by FISHER, P.J.A.D.

The parties to this appeal are Australian citizens, who, because of defendant John Scott Tatham's work in international financial investment, lived in many places shortly after their 1992 marriage, including Hong Kong, Japan, and China. The family, which includes two teenaged daughters, moved to New York City briefly and then to Rumson, New Jersey, either sometime in 2006 or in the Summer of 2007.*fn1 In the Fall of 2008, defendant returned to Singapore, where he has since resided; plaintiff Alison Tatham and their daughters remain in New Jersey.

On July 6, 2011, plaintiff commenced this divorce action, which was subsequently dismissed based on the trial judge's ruling that: the court lacked subject matter jurisdiction; the court could not fairly exert personal jurisdiction over defendant; New Jersey was not a convenient forum for the resolution of the disputes; and service of process was not properly effected. We reverse.

We start with a basic understanding of the facts relevant to the issues. Plaintiff alleged in response to the motion to dismiss that, starting in December 2005, the parties resided in New York City until they moved to Rumson in 2006; she provided no greater specificity as to the date. The judge concluded --apparently accepting the truth of defendant's certifications notwithstanding plaintiff's sworn statements to the contrary*fn2 --that the parties commenced living in the United States in January 2007, first in New York City and then in Rumson in the Summer of 2007. Although the standard that governed the trial judge's decision on a motion to dismiss requires an assumption of the truth of plaintiff's allegations until resolved at the conclusion of a plenary hearing, see, e.g., Independent Dairy Workers Union v. Milk Drivers Local 680, 23 N.J. 85, 89 (1956); Seidenberg v. Summit Bank, 348 N.J. Super. 243, 249-50 (App. Div. 2002), we do not find this factual dispute particularly meaningful.

Plaintiff also asserted that, at the time defendant returned to Singapore in the Fall of 2008, they agreed plaintiff and the children should remain in the United States. Defendant regularly returned to New Jersey to visit his daughters*fn3 until June 2011 when plaintiff discovered circumstances, which we need not discuss, that caused a permanent rift in the marriage. Plaintiff commenced this action the following month.

Defendant moved to dismiss on the four grounds mentioned above. The judge granted the motion, and plaintiff appeals, arguing, the lack of a legal or factual basis for dismissal; she also argues, as she did in the trial court, that defense counsel should have been disqualified because plaintiff consulted with defense counsel's partner prior to her retention of other counsel.

I SUBJECT MATTER JURISDICTION

We reject defendant's forceful attempts to conflate the concepts of subject matter and personal jurisdiction. The scope of subject matter jurisdiction is governed by the extent to which the Legislature chooses to allow litigants to seek divorce in this State. See Hervey v. Hervey, 56 N.J. Eq. 424, 426 (E. & A. 1898) (holding the matrimonial court's "power is what the statute gives it"); Schluter v. Schluter, 23 N.J. Super. 409, 415 (App. Div. 1952) (holding that "the jurisdiction of Chancery in suits for divorce, nullity, or maintenance is purely statutory"), certif. denied, 11 N.J. 583 (1953). The Legislature has declared that the "Superior Court shall have jurisdiction of all causes of divorce, dissolution of a civil union, bed and board divorce, legal separation from a partner in a civil union couple or nullity when either party is a bona fide resident of this State." N.J.S.A. 2A:34-8; see also N.J.S.A. 2A:34-10.

In this context, the concept of "bona fide resident" is equated with "domiciliary." Gosschalk v. Gosschalk, 48 N.J. Super. 566, 572 (App. Div.), aff'd o.b., 28 N.J. 73 (1958); see also Innes v. Carrascosa, 391 N.J. Super. 453, 482 (App. Div.), certif. denied, 192 N.J. 73 (2007). An individual's choice of domicile is established by "physical presence" coupled with "the concomitant unqualified intention to remain permanently and indefinitely." Gosschalk, supra, 48 N.J. Super. at 573. In the setting of a divorce action, as then Judge (later Justice) Schettino expressed for this court (in an opinion adopted by the Supreme Court when it affirmed, 28 N.J. at 74), for there to be an acquisition of a domicile for divorce matters: there must be a "voluntary" change of residence, the residence at the place chosen for the domicile must be actual, that to the factum of residence there must be added the animus manendi, that that place is the domicile of a person in which he has ...


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