R.H. VS. S.Y.K. (FM-09-1801-15, HUDSON COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5519-17T4
R.H.,
Plaintiff-Respondent,
v.
S.Y.K.,
Defendant-Appellant.
____________________________
Argued June 18, 2019 – Decided September 10, 2019
Before Judges Koblitz and DeAlmeida.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FM-09-1801-15.
Angelo Sarno argued the cause for appellant (Snyder
Sarno D'Aniello Maceri Da Costa LLC, attorneys;
Angelo Sarno, of counsel and on the briefs; Lydia Sue
La Tona, on the briefs).
Patricia E. Apy argued the cause for respondent (Paras
Apy & Reiss PC, attorneys; Patricia E. Apy and Elissa
Alexandra Perkins, of counsel and on the brief).
PER CURIAM
Defendant S.Y.K. 1 appeals from the June 18, 2018 order of the Family
Part denying her request to transfer this post-judgment matrimonial matter to a
court in Italy and granting plaintiff R.H.'s motion to change venue from Hudson
County to Monmouth County. We affirm.
I.
R.H. and S.Y.K. were married in 2013 and have one child, E.H., who was
born in 2013. In 2015, R.H. filed a complaint in the Family Part, Hudson
County, seeking a divorce. At that time, the couple and their child lived in
Hudson County. While the divorce proceedings were pending, S.Y.K. moved
to Italy.
On July 20, 2016, the court entered a dual judgment of divorce
incorporating the parties' matrimonial settlement agreement (MSA). Pursuant
to the MSA, they share joint custody of E.H. with S.Y.K. designated as the
parent of primary residence and R.H. as the parent of alternate residence. E.H.
spends her time alternating between New Jersey and Italy. In November 2016,
R.H. moved to Monmouth County.
1
We use initials to preserve the confidentiality of the parties and their child. R.
1:38-3(d)(13).
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2
On March 14, 2018, R.H., intending to seek relief under the MSA, moved
pursuant to Rule 4:3-3 to change venue from Hudson County to Monmouth
County. On March 26, 2018, S.Y.K. requested and was granted an adjournment
of R.H.'s motion.
Six days later, S.Y.K. moved from Rome to Milan. On April 6, 2018, she
filed an application in a court in Milan asking it to take jurisdiction over the
post-judgment proceedings and seeking an order regarding custody and
parenting time. She subsequently filed a response to R.H.'s motion and a cross-
motion seeking "a change of venue" to Milan.
On June 18, 2018, Judge Tara Schillari Rich issued a comprehensive oral
opinion in which she considered S.Y.K.'s motion to be a request for the court to
decline to exercise jurisdiction over the parties' post-judgment proceedings as
an inconvenient forum under the Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA), N.J.S.A. 2A:34-53 to -95. Judge Rich made
detailed findings of fact supporting her conclusion that E.H. has a significant
continuing connection to New Jersey, the forum in which the dual judgment of
divorce incorporating the MSA was entered. As a result, Judge Rich concluded
that the court retains exclusive, continuing jurisdiction under N.J.S.A. 2A:34-
66.
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In addition, Judge Rich carefully analyzed each of the factors set forth in
N.J.S.A. 2A:34-71 and concluded: (1) the witnesses and evidence concerning
the parenting of E.H. will be found in both New Jersey and Italy; (2) the parties'
income is in equipoise and neither would suffer an undue financial burden if the
matter was tried in either New Jersey or Italy; (3) E.H. resides partly in New
Jersey and partly in Italy and would suffer no undue burden if the matter is heard
in either New Jersey or Italy; (4) New Jersey courts and the courts of Italy are
"essentially equal" in terms of which is more convenient to the parties; (5) the
parties agreed in the MSA that New Jersey law would control the custody and
parenting of E.H.; (6) it is unclear if a court in Italy would or could apply New
Jersey law to the parties' custody and parenting claims, particularly because
S.Y.K.'s application in the Italian court called for entry of an order consistent
with Italian law; and (7) neither New Jersey courts nor the courts in Italy have
familiarity with the parties' post-judgment interactions.
After weighing the statutory factors, Judge Rich concluded that New
Jersey is not an inconvenient forum and that Italy is not a more convenient forum
than New Jersey. In addition, the judge found that "New Jersey rather than Italy
is the better forum to construe and govern the issues in this matter under New
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Jersey law," as contemplated by the MSA. The judge, therefore, determined
New Jersey would continue to exercise jurisdiction.
With respect to R.H.'s motion to change venue, Judge Rich concluded that
a change of venue to Monmouth County was warranted pursuant to Rule 4:3-
3(a)(4). That rule provides a change of venue may be ordered "in Family Part
post-judgment motions, if both parties reside outside the county of original
venue and application is made to the court by either party to change venue to a
county where one of the parties now resides." The court thereafter denied the
parties' motions for attorney's fees and costs and entered the June 18, 2018 order
memorializing its decisions.
This appeal followed. S.Y.K. appeals only those portions of the order
denying her motion to transfer this matter to Italy and granting R.H.'s motion
for a change of venue. She argues that Judge Rich erred when she failed to give
sufficient weight to the amount of time E.H. resided with S.Y.K. in Italy and
misinterpreted the provision of the MSA concerning New Jersey law, which,
S.Y.K. argues, was a choice of law provision, not a choice of forum provision.
II.
Our review of an order of the Family Part is limited. Avelino-Catabran v.
Catabran, 445 N.J. Super. 574, 587 (App. Div. 2016). "Because of the family
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courts' special jurisdiction and expertise in family matters, appellate courts
should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J.
394, 413 (1998). "We 'do not disturb the factual findings and legal conclusions
of the [motion] judge unless we are convinced that they are so manifestly
unsupported by or inconsistent with the competent, relevant and reasonably
credible evidence as to offend the interests of justice.'" Avelino-Catabran, 445
N.J. Super. at 587 (alteration in original) (quoting Rova Farms Resort, Inc. v.
Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974)). While deference is accorded
to the trial court as to factfinding, its "legal conclusions, and the application of
those conclusions to the facts, are subject to our plenary review." Reese v. Weis,
430 N.J. Super. 552, 568 (App. Div. 2013).
Having carefully reviewed S.Y.K.'s arguments in light of the record and
applicable legal principles, we affirm the June 18, 2018 order for the reasons
stated by Judge Rich in her thorough and well-reasoned oral opinion. Judge
Rich's factual findings are well supported by the record and we find no error in
her application of the relevant provisions of the UCCJEA to those findings. In
addition, the record supports Judge Rich's decision to transfer venue to
Monmouth County.
Affirmed.
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