F.Y. VS. J.L. (FD-07-3158-19, ESSEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-2096-19
F.Y.,
Plaintiff-Appellant,
v.
J.L.,
Defendant-Respondent.
________________________
Submitted February 9, 2021 – Decided March 5, 2021
Before Judges Fisher and Moynihan.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FD-07-3158-19.
Aihong You, attorney for appellant.
Ren Rong Pan, attorney for respondent.
PER CURIAM
The parties were married in China in 2000. They have one child, Kahn (a
fictitious name), who was born in 2006. In 2009, they divorced; their issues
were resolved by way of a marital settlement agreement (MSA), which became
part of a "certificate of divorce" issued by Chinese authorities. There appears
to be no dispute that the MSA provided plaintiff F.Y. (Fang, a fictitious name)
with sole custody of Kahn and all the parties' marital assets, estimated in our
currency at $3,000,000, leaving defendant J.L. (Jae, a fictitious name) 1 – in his
words – "financially naked." In giving her sole custody, the MSA also obligated
Fang to solely provide for the child's support.
Jae remarried; he and his second wife have two children. They moved to
this country in 2017 and took up residence in New Jersey. Fang and Kahn
remained in China.
Kahn came to live with Jae and his new family in Short Hills in May 2018.
Less than a year later, Kahn flew back to China; Jae told Fang he did not want
Kahn back. Believing Kahn would not get a sufficient education in China due
to her financial situation, Fang and Kahn traveled to New Jersey in April 2019,
and Fang tried to get Jae to take Kahn back. Jae refused to take custody of Kahn
or otherwise provide support for him.
Fang did not seek relief in the People's Court in China; she instead filed a
complaint in our courts in May 2019, claiming Kahn should benefit from Jae's
1
We use initials and fictitious names to protect the parties' privacy interests.
See R. 1:38-3(d)(1).
2 A-2096-19
financial success. Fang's complaint demanded, among other things, an order
granting her sole legal and physical custody of the child and obligating Jae to
pay her child support. In his responsive pleading, Jae alleged Fang breached the
MSA, which he claims obligated Fang alone to support the child, and that he
should be reimbursed for funds expended on Kahn's behalf while he resided with
him in New Jersey.
The trial judge dismissed Fang's action without prejudice. The judge
closely analyzed the requirements of the Uniform Child Custody Jurisdiction
and Enforcement Act (UCCJEA), N.J.S.A. 2A:34-53 to -95, and the Uniform
Interstate Family Support Act (UIFSA), N.J.S.A. 2A:4-30.124 to -30.201, in
concluding in a thorough fourteen-page written opinion that the court lacked
jurisdiction over Fang's requests for the modification of the custody and child
support agreements contained in the parties' MSA. The judge later denied Fang's
motion for reconsideration for reasons expressed in another well-reasoned
written opinion.
Fang appeals both orders, arguing:
I. IN DETERMINING THAT THE [MSA] IS THE
CONTROLLING SUPPORT ORDER, WHICH WILL
BE REGISTERED FOR THIS COURT TO ENFORCE,
THE LOWER COURT FAILED TO IDENTIFY THE
DETAILS UPON WHICH IT MADE SUCH
DETERMINATION (Not Raised Below).
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II. THE [MSA] IS NOT QUALIFIED AS A
CONTROLLING ORDER UNDER THE UCCJEA
AND UIFSA.
A. China And U.S. Do Not Have Any
Reciprocal Arrangement To Enforce Any
Support Orders Entered By The Other's
Courts.
B. Under The Doctrine Of Comity, The
Law Of This State Does Not Recognize
Zero Support Amount For A Child.
C. China Did Not Have The Procedures For
The Issuance And Enforcement Of Support
Orders Which Are Substantially Similar To
The Procedures In This State.
III. THIS COURT HAS SUBJECT MATTER
JURISDICTION TO ISSUE A CONTROLL[I]NG
CUSTODY AND SUPPORT ORDER UNDER THE
UCCJEA AND UIFSA.
We find no merit in these arguments 2 and affirm substantially for the reasons set
forth in Judge Christopher S. Romanyshyn's written opinions, adding only the
following comments.
We start by recognizing that the only real dispute concerns child support.
Fang does not require an order granting her custody because she already has
custody of Kahn pursuant to the MSA and the certificate of divorce entered in
2
To the extent we do not discuss all Fang's arguments it is because we find
those unmentioned arguments to be without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
4 A-2096-19
China and because Jae neither argues otherwise nor seeks custody. We, thus,
reject Fang's arguments to the extent she seeks our review of the judge's
determinations about the UCCJEA, which relates to the modification and
enforcement of child custody orders entered beyond our boundaries.
The controversy before us concerns only whether our courts may exert
jurisdiction to modify a child support agreement endorsed by a foreign tribunal
that indisputably had jurisdiction over both parents and the child at the time. In
this regard, we first observe that the MSA is not a mere agreement between two
parties. In 2009, the MSA received the imprimatur of the Chinese government,
as Fang acknowledged; in her submissions in the trial court Fang represented
that, after entering into the MSA, she and Jae
went to the Bureau of Civil Affairs of Chaoyang
District on December 28, 20[0]9. After . . . submit[ting]
the agreement, without any discussion or question
having been asked about the contents of the agreement,
the staff issued the[] divorce certificate in a couple of
minutes.
This process does not appear to be unusual. Article 31 of the Marriage Law of
the People's Republic of China states that "[d]ivorce shall be allowed if both
husband and wife are willing to divorce"; in that circumstance, the parties need
only both "apply to the marriage registration authority," which then issues a
certificate of divorce "after confirming that both parties are indeed willing to
divorce and have made proper arrangement for their children and have properly
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disposed of their property." So, the trial court here was not being asked to
enforce or modify a mere agreement but a divorce decree entered in accord with
the laws of the parties' homeland.
In seeking the modification of the parties' divorce decree, the trial court
was obligated to consider the application of the UIFSA, which is a model act
adopted not only in this State but by every other state and territory in the union,
Marshak v. Weser, 390 N.J. Super. 387, 390 (App. Div. 2007), for the purpose
of advancing "unity and structure in each state's approach to the modification
and enforcement of child support orders," Sharp v. Sharp, 336 N.J. Super. 492,
503 (App. Div. 2001). The Act's approach starts with the designation of one
order as the "controlling child support order" and requires, as well, the
identification of the tribunal possessing exclusive jurisdiction to modify the
controlling order. Lall v. Shivani, 448 N.J. Super. 38, 45 (App. Div. 2016).
In this case, there is no difficulty identifying the "controlling child support
order" because there is only one such order: the MSA provision that declared
Jae would have no child support obligation. See N.J.S.A. 2A:4-30.135(a)
(recognizing that "if only one tribunal has issued a child support order, the order
of that tribunal controls and shall be recognized"). That also makes China the
exclusive jurisdiction under the UIFSA. See N.J.S.A. 2A:4-30.133(e). And
until circumstances change to a point where our courts may obtain the authority
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to modify under the UIFSA, the existing provisions of the MSA, which were
endorsed by the certificate of divorce in China,3 remain applicable. See N.J.S.A.
2A:4-30.170(c).
In that instance, the authority to modify the exclusive jurisdiction's
controlling child support order under N.J.S.A. 2A:4-30.178 first requires a
determination that another of UIFSA's sections – N.J.S.A. 2A:4-30.180(a) –
does not apply. By enacting that provision, the Legislature declared that our
courts have the authority to enforce and modify a child support order of another
jurisdiction if all the parties "reside in this State and the child does not reside in
the issuing state." N.J.S.A. 2A:4-30.180(a). While the judge found the child
was no longer residing in China – he had moved to his father's New Jersey home
the year before and had been registered to attend school here even though he had
briefly returned to China – the judge also found that Fang was a visitor to New
Jersey – not a resident – since she had only just arrived and was in the country
on a visitor's visa.
Because N.J.S.A. 2A:4-30.180(a) wasn't applicable, the judge correctly
turned to N.J.S.A. 2A:4-30.178, which states that our courts "may modify a child
3
There is no significance to the fact that the parties' divorce was not the subject
of judicial proceedings. See N.J.S.A. 2A:4-30.125(dd).
7 A-2096-19
support order issued" elsewhere 4 if one of two separate set of circumstances
exist.
The first set of circumstances – described in N.J.S.A. 2A:4-30.178(a)(1)
– is present if:
(a) neither the child, nor the obligee who is an
individual, nor the obligor resides in the issuing state;
(b) a petitioner who is a nonresident of this State seeks
modification; and
(c) the respondent is subject to the personal jurisdiction
of the tribunal of this State.
Since the judge found that Kahn resides in New Jersey – and there being no
doubt that Jae is a New Jersey resident – the matter turns on Fang's status. It
seems clear that in these circumstances Fang continues to be a resident of China
because she was in this country, when applying for relief, only by way of a
visitor's visa; in that instance, subsection (a) would not allow for modification
jurisdiction. But, even if it could be said that Fang had by the time of the trial
court proceedings ceased being a resident of China, subsection (b) could not be
found because that provision requires that the petitioner be "a nonresident" of
New Jersey. In other words, when the judge ruled, Fang was a resident of either
4
We assume, without deciding, that N.J.S.A. 2A:4-30.178 and N.J.S.A. 2A:4-
30.180 apply when the controlling support order sought to be modified emanated
from a foreign country and not just a state or territory of this country.
8 A-2096-19
China or New Jersey. Our courts would lack jurisdiction to modify the Chinese
support order if Fang was a resident of China (because of subsection (a)) and if
she was a resident of New Jersey (because of subsection (b)).
The second set of circumstances was partially established. N.J.S.A. 2A:4-
30.178(a)(2) permits the assumption of jurisdiction to modify another
jurisdiction's support order if it is first shown that the child is a resident of New
Jersey (which the judge found to be so) "or a party . . . is subject to the personal
jurisdiction" of our courts (and Jae was). But this provision also requires that
"all of the parties . . . have filed consents in a record in the issuing tribunal" that
would authorize this State to modify the support order and assume "continuing,
exclusive jurisdiction." Ibid. There was no evidence of any party having filed
in China consent to allow our courts to modify the support order.
Finding no recourse for Fang in these provisions, Judge Romanyshyn
considered the applicability of N.J.S.A. 2A:4-30.182(c), which would permit the
modification of a foreign country's child support order if that foreign country's
tribunal "lacks or refuses to exercise jurisdiction to modify its child support
order." As the judge demonstrated – more fully in his opinion denying
reconsideration – it was not shown that the courts of the People's Republic of
China would not entertain an application to modify the child support provision.
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Indeed, like here, it seems that attaining a marital settlement agreement
and a divorce in China does not necessarily preclude China's courts from
resolving disputes between divorced parties. Article 36 of China's Marriage
Law declares that a divorce does not end a parent's relationship with a child of
the marriage and that both parents retain the obligation to raise their children;
this article, however, declares that the children of divorced parents shall be
raised by their mother "during lactation," and after, if necessary, any custody
dispute "shall be settled by the people's court according to the specific
conditions of both parties and in light of protecting the rights and interests of
the children." Article 37 allows for the resolution of disputes about the support
of children if the parents cannot agree, and Article 38 provides for visitation by
the non-custodial parent that can also be determined by the people's court if the
parents cannot agree.
The trial judge concluded from this in both his original decision and in the
written opinion denying reconsideration that avenues appeared to be open to
Fang to seek relief in China, or at least that she hadn't demonstrated those
avenues were closed. As a result, the judge correctly concluded, under the
circumstances as presented to him, that Fang failed to demonstrate that the court
could exercise jurisdiction to modify the child support provision contained in
the parties' MSA.
10 A-2096-19
Affirmed.
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