Anil K. Lall v. Monisha Shivani , 448 N.J. Super. 38 ( 2016 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3054-14T3
ANIL K. LALL,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
December 6, 2016
v.
APPELLATE DIVISION
MONISHA SHIVANI,
Defendant-Appellant.
_______________________________
Submitted October 13, 2016 - Decided December 6, 2016
Before Judges Lihotz, O'Connor and Whipple.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson
County, Docket No. FM-09-1722-09.
Monisha Shivani, appellant pro se.
Respondent has not filed a brief.
The opinion of the court was delivered by
LIHOTZ, P.J.A.D.
Defendant Monisha Shivani challenges the Family Part's
exercise of continuing exclusive jurisdiction, implicating
provisions of the Uniform Interstate Family Support Act (the
Act), now codified at N.J.S.A. 2A:4-30.124 to - 30.201.
Defendant appeals from a January 5, 2015 post-judgment order,
which denied reconsideration of orders modifying her child
support obligation. Defendant maintains the orders must be
vacated because her relocation to North Carolina, the child's
home state, deprives the Family Part of jurisdiction to consider
the issues.
As we discuss in our opinion, the Act was recently amended,
including provisions regarding a New Jersey tribunal's authority
to modify a controlling child support order when parents and
child no longer reside in New Jersey. See L. 2016, c. 1, eff.
April 1, 2016. When the orders under review were entered, the
prior version of the Act, now repealed, was in effect.
Following our review, we conclude the facts support the Family
Part's authority to exercise continuing exclusive jurisdiction,
permitting the modification of the previously issued child
support order. We further conclude the amendments to the Act
have no impact on the instant matter. Consequently, we affirm.
However, we are compelled to observe the amendments have altered
the jurisdictional foundations when the parents or guardians and
the child no longer reside in New Jersey.
The parties are divorced and have one child. Plaintiff
Anil Lall was awarded sole legal and residential custody on
November 19, 2010, subject to defendant's limited parenting
time. The custody order survived entry of the final judgment of
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divorce. Various post-judgment proceedings were conducted to
modify defendant's parenting time.
Plaintiff secured employment in North Carolina and sought
to remove the child from New Jersey. His application was
granted and the June 28, 2013 order delineated defendant's
parenting time in New Jersey and North Carolina. The judge also
ordered a reduction in defendant's child support obligation,
based on the costs of exercising parenting time in North
Carolina.
Additional post-judgment motions filed by defendant led to
a June 23, 2014 plenary hearing, after which defendant's
parenting time was increased. In the course of the hearing,
defendant disclosed she moved to North Carolina.1 The order
described defendant's regular parenting time and the parties'
designated holidays and vacation parenting time.
The parties' filed motions for reconsideration. Following
review, the judge agreed to correct certain provisions, denied
challenges to others, and modified child support based on
defendant's increased parenting time. Because inter-state
visitation was no longer an issue, the calculation no longer
1
The record does not include the transcript of this
proceeding. The facts are taken from the Statement of Reasons
accompanying the judge's order.
3 A-3054-14T3
included a parenting-time expense reduction. The effect was
defendant's obligation increased.
Included in the October 15, 2014 order was a determination
the litigation in New Jersey had concluded and Judge William F.
Helms, III, of the District Court of North Carolina, accepted
jurisdiction because North Carolina was now the home state of
the child and the residence of both parties. On October 17,
2014, the judge entered a second form order, which memorialized
the child support related terms stated in the October 15, 2014
order, provided an effective date for the modified child support
amount and, citing the Uniform Child Custody Jurisdiction and
Enforcement Act, N.J.S.A. 2A:34-53 to 2A:34-95, stated "the
District Court of North Carolina accepts jurisdiction of this
case . . . ."
Defendant filed a letter, objecting to the October 15, 2014
order "under the Five-Day Rule." See R. 4:42-1(c) (requiring
generally that written objections to the form of an order be
submitted within five days after service). She challenged the
child support calculation and, for the first time, the Family
Part's jurisdiction. Defendant asserted she consented to North
Carolina as the child's home state and "waived New Jersey's
jurisdiction." Moreover, since jurisdiction rested in North
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Carolina, she maintained the October 15 and 17 orders must be
vacated.
Defendant followed her letter by filing a motion for
reconsideration. The motion included her newly raised
jurisdictional challenge. The motion was denied on January 5,
2015, and this appeal followed.
Defendant does not challenge New Jersey as the state that
established child support when both parties were New Jersey
residents. The Family Part had both personal and subject matter
jurisdiction when it entered the establishment order. Instead,
citing the Act, defendant's argument suggests her move to North
Carolina, which was also the child's home state and plaintiff's
residence, stripped the Family Part of subject matter
jurisdiction to modify the child support order, making
subsequent orders unenforceable.
There are procedural problems regarding the presentation of
defendant's argument, including the timeliness of her challenge
to the October 15, 2014 order, which she filed on February 11,
2015.2 Nevertheless, because no opposition to her appeal was
2
Even were we to consider the date of the final order as
October 17, 2014, after accounting for the period of stay
pending reconsideration filed on November 5, 2014, the notice of
appeal was filed on February 11, 2015, thirty-two days following
denial of reconsideration, fifty-six days following entry of the
(continued)
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advanced, we will address the merits. The necessary context and
understanding of the issue presented by defendant's appeal
require we first recite the current and prior statutory
provisions of the Act directed to this issue.
The Act, both in its prior and current form, advances
"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) (quoting
Youssefi v. Youssefi, 328 N.J. Super. 12, 20 (App. Div. 2000)
(citing 42 U.S.C.A. § 666(f))). The Act resolves potential
jurisdictional conflicts regarding the enforcement of child
support orders across state lines by designating one order as
the controlling child support order and provides for interstate
jurisdiction to modify child support orders when parents and the
children do not all reside in the same state. See Ibid. ("[The
Act,] governing the interstate establishment, modification, and
enforcement of child support . . . 'provides a comprehensive
framework for dealing with the jurisdictional problems at
hand.'" (quoting Peace v. Peace, 325 N.J. Super. 122, 127 (Ch.
Div. 1999))).
(continued)
final order. The appeal should have been filed by or on January
31, 2015. R. 2:4-1.
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The 2016 amendments to the Act did not deviate from the
scheme effectuated by the prior version. Rather, the 2016
amendments abide provisions of the federal Preventing Sex
Trafficking and Strengthening Families Act, P.L. No.113-183
(2014), 42 U.S.C.A. §§ 675, 675(a), whose
amendments incorporate the provisions
required by the Hague Convention on the
International Recovery of Child Support and
Other Forms of Family Maintenance . . . to
which the United States is a signatory. The
amendments to the Uniform Act were developed
and approved by the Uniform Law Commission
for adoption in all jurisdictions.
[Senate Judiciary Committee, Statement to
Senate, No. 995 (February 8, 2016).]
Furthermore,
The bill repeals New Jersey's 1998
version of UIFSA [the Act], sections 1
through 58 of P.L. 1998, c.2 (C.2A:4-30.65
through C.2A:4-30.123), and implements a new
UIFSA which encompasses those amendments
promulgated by the Uniform Law Commission.
The bill provides guidelines and procedures
for the registration, enforcement and
modification of foreign support orders. It
also establishes basic jurisdictional
standards including continuing, exclusive
jurisdiction, rules for determining which
state issues the controlling order in the
event of proceedings in multiple
jurisdictions, and rules for modifying
support orders.
The most notable change is the addition
of a new Article 7 to UIFSA. This article
establishes guidelines and procedures for
the registration, recognition, enforcement,
and modification of foreign support orders
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of countries that are parties to the
Convention. Article 7 provides that a party
seeking recognition of a support order must
register. Once registered, the tribunal
notifies the parties and an opportunity to
challenge the order is provided. Unless
grounds for denying recognition of the order
are established, the order is enforced.
Another change between the old and new UIFSA
is the addition of a section concerning the
conditions under which a tribunal has the
authority to modify a spousal support order.
[Ibid.]
Critical to the jurisdictional uniformity intended under
the Act's interstate system of modifying and enforcing child
support orders is identification of the controlling child
support order and the tribunal authorized to exercise
"continuing exclusive jurisdiction." N.J.S.A. 2A:4-30.133. In
short, a court that enters an order establishing child support
retains continuing exclusive jurisdiction to modify the order,
and that court's orders remain the controlling child support
orders for purposes of enforcement, until continuing exclusive
jurisdiction is conferred on another state's tribunal by
operation of the Act.
The new statutory provisions preserve concepts regarding
continuing exclusive jurisdiction as the foundation governing
modification of a controlling child support order. When a New
Jersey tribunal enters a child support order, so long as one
party remains in the state, the Act still directs:
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a. A tribunal of this State that has issued
a child support order consistent with the
law of this State has and shall exercise
continuing, exclusive jurisdiction to modify
its child support order if the order is the
controlling order and:
(1) at the time of the filing of a request
for modification this State is the residence
of the obligor, the individual obligee, or
the child for whose benefit the support
order is issued . . . .
[N.J.S.A. 2A:4-30.133(a).]
The amendments change procedures followed when all parties
have moved from New Jersey. Now N.J.S.A. 2A:4-30.133(a)(2)
permits the state to exercise continuing exclusive jurisdiction
even if this State is not the residence of
the obligor, the individual obligee, or the
child for whose benefit the support order is
issued, the parties consent in a record or
in open court that the tribunal of this
State may continue to exercise jurisdiction
to modify its order.
Therefore, parties who initiate a child support proceeding in
New Jersey, who subsequently leave New Jersey, may decide our
courts should modify the order by consenting orally or in
writing to the Family Part's jurisdiction.
However,
A tribunal of this State that has issued a
child support order consistent with the law
of this State may not exercise continuing,
exclusive jurisdiction to modify the order
if:
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(1) all . . . parties who are individuals
file consent in a record with the tribunal
of this State that a tribunal of another
state that has jurisdiction over at least
one of the parties who is an individual or
that is located in the state of residence of
the child may modify the order and assume
continuing, exclusive jurisdiction . . . .
[N.J.S.A. 2A:4-30.133(b) (emphasis added).]
Accordingly, when all parties have left the state, New
Jersey may not modify a child support order, even though it
issued the controlling order, if all individual parties file
written consent in New Jersey stating another tribunal, with
personal jurisdiction over one party or which is the child's
home state, should modify the controlling order. N.J.S.A. 2A:4-
30.133(b)(1).3
3
Importantly, we alert the Legislature to a perceived gap
between these separate jurisdictional provisions. For example,
if New Jersey issued the controlling order, but all individual
parties and the child no longer reside in the state, N.J.S.A.
2A:4-30.133(a)(2) requires consent on the record to allow New
Jersey's exercise of subject matter jurisdiction to modify the
child support order. If one party declines to do so, and,
further, all individuals do not file written consents in New
Jersey for another tribunal to exercise jurisdiction as mandated
by N.J.S.A. 2A:4-30.133(b)(1), the proper tribunal with
authority to grant relief remains unclear. Because litigation
surrounding the enforcement of child support orders is often
contentious, requiring consent in order to proceed invites
obstinate parties to withhold consent and delay enforcement. As
noted in our opinion, this question is not triggered by the
facts under review, as the prior statute did not create a
similar gap.
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This differs from the repealed provisions, which provided
New Jersey retained continuing exclusive jurisdiction to modify
the controlling child support order it issued "until all of the
parties who are individuals have filed written consents with the
tribunal of this State for a tribunal of another state to modify
the order and assume continuing exclusive jurisdiction."
N.J.S.A. 2A:30.72(a)(2) (emphasis added) (repealed by L. 2016,
c. 1, eff. April 1, 2016). The former Act designates New Jersey
as the tribunal to modify an order until all parties agree
otherwise. Ibid.
We turn to the matter at hand. Defendant argues New Jersey
lost jurisdiction to modify its prior order. She argues the
Family Part lacked personal jurisdiction. This argument is
rejected because both parties appeared and participated in the
post-judgment proceedings. Nevertheless, we recognize
defendant's intended challenge is directed to subject matter
jurisdiction.
Challenges to subject matter jurisdiction may be raised at
any time. Macysyn v. Hensler, 329 N.J. Super. 476, 481 (App.
Div. 2000). See also R. 4:6-7 ("Whenever it appears by
suggestion of the parties or otherwise that the court lacks
jurisdiction of the subject matter, the court shall dismiss the
matter . . . ").
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When these post-judgment proceedings commenced, defendant
resided in New Jersey. New Jersey issued the controlling child
support order in November 2010, conferring continuing exclusive
jurisdiction to modify the child support order as long as one of
the parties remained in the state. N.J.S.A. 2A:4-30.133;
N.J.S.A. 2A:30.72(a)(1) (repealed by L. 2016, c. 1, eff. April
1, 2016).
During her plenary hearing testimony to consider her
request for additional visitation, defendant revealed she
relocated to North Carolina. Both parties appeared and
participated in this proceeding. When defendant successfully
secured additional parenting time, as set forth in the August
28, 2014 order, she filed a request for reconsideration, raising
other matters, particularly the amount of ordered child support,
which culminated in the October 15, 2014 order. The October 17,
2014 order merely placed the terms ordered on October 15, in a
Uniform Summary Support Order because this form order is
necessary to utilize the New Jersey Automated Child Support
System and automated payment center that is supervised by
Probation Services. R. 5:7-4(b).
Accepting the factual findings accompanying the judge's
order regarding defendant's challenge to the court's
jurisdiction, we note by filing motions regarding parenting time
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and child support, and appearing at the hearing, both parties
consented to New Jersey's continued exercise of jurisdiction, as
no new action was initiated in North Carolina. The judge was
guided by the provisions of the now repealed statute, and
properly exercised jurisdiction as the parties had not filed the
required consents to allow North Carolina to consider issues in
dispute as required by N.J.S.A. 2A:30.72(a)(2) (repealed by L.
2016, c. 1, eff. April 1, 2016).4 The Act as modified was not
effective until April 16, 2016. The orders issued prior to that
date must be reviewed under the provisions of the prior statute.
Maeker v. Ross, 219 N.J. 565, 578 (2014) ("[C]ourts generally
will enforce newly enacted substantive statutes prospectively,
unless it clearly expresses a contrary intent."). We conclude
our task is to apply the provisions of the now repealed Act.
Under the statute then in effect, defendant's jurisdictional
challenges are unavailing.5
4
Incidentally, jurisdiction would also be proper pursuant to
N.J.S.A. 2A:4-30.133(a), were the new Act then in effect,
because the parties consented to allow the judge to proceed on
finalizing all issues raised in the parenting time proceeding
and had not filed consents in New Jersey that another tribunal
had acquired jurisdiction under N.J.S.A. 2A:4-30.133(b)(1).
5
Were the new statute in effect, the facts evinced in this
limited record also support jurisdiction in New Jersey because
all parties filed pleadings and participated in the proceedings.
N.J.S.A. 2A:4-30.133(a)(2) requires only a consent on the record
to allow the continuation of jurisdiction.
13 A-3054-14T3
Also, we reject as unfounded defendant's substantive
attacks on the modified child support order. Defendant urges we
determine the judge failed to consider plaintiff's wife's income
as part of plaintiff's gross income for purposes of fixing child
support. This is not the law and plaintiff's spouse has no
legal obligation to contribute to the support of the parties'
child. Hudson v. Hudson, 315 N.J. Super. 577, 582-83 (App. Div.
1998).
Defendant next challenges the amount of income imputed to
her as "unrealistic." Although we have not been provided a
transcript, the statement of reasons included with the order
denying this argument raised on reconsideration, included the
judge's factual findings on this issue. We determine these
findings are supported by the record and conclude the judge did
not abuse her reasoned discretion. Tash v. Tash, 353 N.J.
Super. 94, 99 (App. Div. 2002) (providing when imputing income,
a trial judge retains the discretion to realistically appraise
capacity to earn and job availability).
"'Imputation of income is a discretionary
matter not capable of precise or exact
determination[,] but rather require[es] a
trial judge to realistically appraise
capacity to earn and job availability.'"
Gnall v. Gnall, 432 N.J. Super. 129, 158
(App. Div. 2013) (quoting Storey v. Storey,
373 N.J. Super. 464, 474 (App. Div. 2004)),
[rev'd and remanded on other grounds, 222
N.J. 414 (2015)]. While an "abuse of
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discretion . . . defies precise definition,"
we will not reverse the decision absent a
finding the judge's decision "rested on an
impermissible basis," considered "irrelevant
or inappropriate factors," Flagg v. Essex
Cnty. Prosecutor, 171 N.J. 561, 571 (2002)
(citations and internal quotation marks
omitted), "failed to consider controlling
legal principles or made findings
inconsistent with or unsupported by
competent evidence." Storey, supra, 373 N.J.
Super. at 479.
[Elrom v. Elrom, 439 N.J. Super. 424, 434
(App. Div. 2015).]
Here, the judge based the level of income imputed upon
defendant's past demonstrated earning ability. Id. at 435. A
judge may realistically review a parent's "potential earning
capacity" rather than actual income, when imputing the ability
to pay support. Halliwell v. Halliwell, 326 N.J. Super. 442,
448 (App. Div. 1999).
The judge also found defendant had not sufficiently
demonstrated she had a lower earning capacity or rebutted the
charge she was underemployed, fully justifying the use of her
last documented salary to compute child support. See Storey,
supra, 373 N.J. Super. at 474 (holding an obligor bears the
burden to establish earnings received match his or her earning
capacity "in order to avoid imputation"). Defendant worked as a
financial analyst for a major banking organization yet, in North
Carolina she accepted the position of clerk in a retail
15 A-3054-14T3
department store. She provided no evidential support she
underwent "extensive" job searches for similar employment when
she moved to North Carolina or that she was unable to work in
any greater capacity.
We also conclude the judge did not abuse her discretion in
denying defendant's requested parenting time credits for (1)
time that reduced plaintiff's parenting time to allow defendant
to visit family in India; (2) possible days she may be off and
might have visitation, which remained uncertain; (3) days
included by defendant's "double counting" weekends occurring
during summer parenting time.
Shared-parenting adjustments or awards are not presumptive,
but are factually sensitive. Child Support Guidelines, Pressler
& Verniero, Current New Jersey Court Rules, Appendix IX-A to R.
5:6A at www.gannlaw.com (2016). Our review determines the
judge's findings are supported by credible evidence in the
record and will not be disturbed. Hand v. Hand, 391 N.J. Super.
102, 111 (App. Div. 2007) (stating "we do not second-guess . . .
findings and the exercise of . . . sound discretion" by our
Family Part judges).
Finally, defendant claims the judge erroneously denied her
request for judicial notice of the fact North Carolina has a
lower cost of living than New Jersey. Despite defendant's
16 A-3054-14T3
insistence on this point, such facts are not "propositions of
generalized knowledge as are so universally known that they
cannot reasonably be the subject of dispute," which are
prerequisites to judicial notice pursuant to N.J.R.E. 201(b).
Affirmed.
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