P.H. VS. L.W. (FD-02-0659-16, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5345-16T4
P.H.,
APPROVED FOR PUBLICATION
Plaintiff-Respondent, November 13, 2018
v. APPELLATE DIVISION
L.W.,
Defendant-Appellant.
______________________________
Submitted October 17, 2018 – Decided November 13, 2018
Before Judges Ostrer, Currier and Mayer.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FD-02-0659-16.
Cowen & Jacobs, attorneys for appellant (Barbara E.
Cowen, on the brief).
Respondent has not filed a brief.
The opinion of the court was delivered by
OSTRER, J.A.D.
Defendant L.W.1 appeals from the Family Part's June 26, 2017, order
denying her motion to dismiss the custody matter commenced by plaintiff,
P.H., the father of the parties' twin girls. Having considered defendant's
arguments in light of the record and applicable principles of law, we conclude
the Family Part initially exercised jurisdiction in 2016 based on a mistaken
finding that New Jersey was the children's "home state," as the children did not
reside here for six consecutive months immediately before plaintiff filed suit.
See N.J.S.A. 2A:34-65(a)(1) (discussing the role of the "home state"
determination in exercising initial child-custody jurisdiction); N.J.S.A. 2A:34-
54 (defining "home state"). Furthermore, the trial court should have
determined, by the time it decided defendant's motion to dismiss, that New
Jersey lacked "exclusive, continuing jurisdiction," because both parties and
their daughters had long been absent from New Jersey, they lacked a
significant connection here, and substantial relevant evidence was no lon ger
available here. See N.J.S.A. 2A:34-66(a). In any event, New Jersey had
become an inconvenient forum. See N.J.S.A. 2A:34-71. We therefore reverse
and remand for a stay of further proceedings in anticipation of dismissal.
In the certifications supporting and opposing defendant's motion, the
parties dispute many aspects of their relationship, including competing
1
We utilize initials because of allegations of domestic violence.
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allegations of domestic violence. We cannot resolve those controversies on a
paper record. However, some basic jurisdictional facts are undisputed.
Defendant comes from South Dakota. In 2012, she met plaintiff in
Chicago, where they both were visiting. Their relationship continued in South
Dakota, where defendant became pregnant and gave birth to the girls in June
2013. Sometime thereafter, plaintiff returned to his home in New York City.
The children and defendant remained in South Dakota until 2015. Plaintiff
periodically visited them there, although defendant alleged the visits were
marked by acts of domestic violence against her.
In June 2015, defendant and the children travelled east to live with
plaintiff. The parties dispute whether defendant intended her move to be
permanent. Initially, they spent time in a campground in New York, utilizing
defendant's RV. They also spent time at the New York City apartment where
plaintiff lived with his mother. Defendant alleged she was a victim of assault
at the campground, prompting her to file a New York domestic violence
incident report.
On July 15, 2015, plaintiff signed a lease for a house in Dumont.
Defendant was not a signer. Although plaintiff maintains that defendant's and
the children's residence in New Jersey began when he signed the lease, he does
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not dispute that defendant did not arrive in New Jersey with the girls until Jul y
18, 2015.
Plaintiff allegedly assaulted defendant again, in Dumont, prompting
defendant to file a domestic violence complaint, and to secure a temporary
restraining order (TRO) from the Family Part on December 14, 2015. The
court ejected plaintiff from the Dumont home and granted defendant temporary
custody of the girls. However, two hearing dates for a final restraining order
were adjourned. On January 11, 2016, plaintiff alleged defendant assaulted
him almost a month earlier, and he secured a TRO of his own. His TRO did
not alter the custody arrangements.
Defendant contends that on January 13, 2016, she packed up her things,
hired a mover (as reflected in a mover's inventory of the same date), and left
New Jersey with the children, arriving in South Dakota on January 15, 2016.
Plaintiff does not dispute those factual allegations. Indeed, he alleged that
defendant attempted to wrongfully cash a check of his in Illinois on January
14, 2016. Shortly thereafter, plaintiff returned to New York.
The Family Part dismissed defendant's domestic violence complaint after
she failed to appear on January 28, 2016, for the final restraining order
hearing. The same day, plaintiff filed the instant case, seeking a determination
of paternity and custody. He attempted to serve defendant by mail at her
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father's residence in Sturgis, South Dakota. But defendant was living in a
different county without notifying plaintiff or the court, allegedly to prevent
plaintiff from finding her. Her father certified that he did not forward the mail
to his daughter until late October or early November 2016.
In the meantime, defendant sought an order of protection in South
Dakota, obtaining a temporary order on January 27, 2016, and a final one on
March 8, 2016. The order granted defendant custody of the children.
Defendant did not appear in the New Jersey action. The court entered an
order March 17, 2016, requiring defendant and the children to submit to
genetic testing to determine paternity. She failed to comply – allegedly
because she was still unaware of the action. On September 1, 2016, the Family
Part entered an order compelling defendant to return to New Jersey with the
children. Presumably based on plaintiff's representations, the court found that
defendant "removed the minor children from the State of New Jersey without
consent where they had reside[d] for a period in excess of 6 months." The
court found that the State had "home state jurisdiction" pursuant to N.J.S.A.
2A:34-54.
On October 25, 2016, the Family Part restated – again without
defendant's participation – that New Jersey was the twins' home state, as
plaintiff alleged that defendant and the children had resided there for over six
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months. The court ordered her to return to New Jersey and issued a bench
warrant for her arrest. The court also granted plaintiff temporary sole legal
custody of the twins, "to effectuate their return to New Jersey where the issues
of paternity and custody need to be addressed by this Court."
Armed with that order, plaintiff sought the South Dakota court's
modification of its March 2016 order granting defendant custody. Defenda nt
opposed the motion, challenging the service of the New Jersey action. On
March 3, 2017, after conferring with the New Jersey Family Part judge, the
South Dakota judge agreed with the Family Part's finding that New Jersey was
the girls' home state. The South Dakota court vacated the custody portion of
its protection order, but maintained "limited, temporary, concurrent custody
jurisdiction" to enforce sanctions for willful disobedience of orders from both
courts. Consistent therewith, the South Dakota court ordered defendant to
comply with the genetic testing order. Defendant did so, and the test
confirmed plaintiff's parentage. On March 31, 2017, the South Dakota court
entered an order abdicating its "limited custody jurisdiction" and declaring that
New Jersey was the proper jurisdiction to decide custody.
In April and May 2017, defendant challenged New Jersey's jurisdiction
in both New Jersey and South Dakota courts. First, she filed a motion in the
Family Part to dismiss the New Jersey custody action, arguing that New Jersey
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lacked subject matter jurisdiction, or, alternatively, New Jersey should
relinquish jurisdiction based on the doctrine of forum non conveniens. The
court denied her motion in June 2017, noting that the jurisdictional issue had
been decided. Also, as South Dakota had declined jurisdiction, the judge
rejected "the idea that this court should deny jurisdiction," because it would
leave the family with "no place to go." The judge did express concern that
neither party had been in New Jersey for over a year, but invited the parties to
take that up in South Dakota. The court did not expressly address defendant's
inconvenient forum argument.
Meanwhile, defendant filed an application for reconsideration in South
Dakota on May 10, 2017. The application was denied because it was filed in
the wrong county. According to counsel, defendant refiled an application in
November 2017, but, in January 2018, the court denied it because this appeal
was already pending, and the South Dakota court wanted to await its
resolution.
On appeal, defendant contends that under N.J.S.A. 2A:34-65(a), New
Jersey does not possess "exclusive, controlling jurisdiction" over the custody
action; and even if the court did possess such jurisdiction, New Jersey should
decline jurisdiction in favor of South Dakota because New Jersey is an
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inconvenient forum under N.J.S.A. 2A:34-71. Plaintiff did not file a
responding brief.
The Uniform Child Custody Jurisdiction and Enforcement Act, N.J.S.A.
2A:34-53 to -95, governs the jurisdictional questions before us. See Greely v.
Greely, 194 N.J. 168, 178 (2008). The Act is designed to reduce conflict
among states and "ensure that custody determinations are made in the state that
can best decide the case." Griffith v. Tressel, 394 N.J. Super. 128, 138 (App.
Div. 2007).
The Act "prioritizes the use of the child's 'home state,' as the exclusive
basis for jurisdiction . . . ." Sajjad v. Cheema, 428 N.J. Super. 160, 171 (App.
Div. 2012). A New Jersey court has initial child custody jurisdiction if it was
the child's "home state" when the proceeding commenced, "or was the home
state of the child within six months before the" proceeding commenced "and
the child is absent from this State but a parent or person acting as a parent
continues to live in this State." N.J.S.A. 2A:34-65(a)(1).
Based on the undisputed facts now before us, New Jersey was not the
home state when plaintiff commenced his custody action on January 28, 2016.
In his 2017 certification, plaintiff essentially concedes the children were not
living here "for at least six consecutive months immediately before the
commencement" of his action. See N.J.S.A. 2A:34-54 (defining "home state").
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The children arrived in New Jersey on July 18, 2015. They left with defendant
on January 13, 2016, five days short of six months. Had they gone on a
vacation until plaintiff filed his action, that "temporary absence" would be
included in the relevant period of time. Ibid. However, defendant did not
intend to return, having hired a mover to transport her belongings to South
Dakota. Consequently, New Jersey was not the children's home state, nor was
it the home state within the six-month period before the action commenced.
Therefore, New Jersey did not acquire jurisdiction based on home-state status.
We recognize that the lack of home-state status does not necessarily
divest a state of jurisdiction. A New Jersey court may exercise jurisdiction if
no court of another state has home-state jurisdiction, or a court with home-
state jurisdiction declines to exercise it, and two other factors are present:
(a) the child and the child’s parents, or the child and at
least one parent or a person acting as a parent have a
significant connection with this State other than mere
physical presence; and
(b) substantial evidence is available in this State
concerning the child’s care, protection, training and
personal relationships;
[N.J.S.A. 2A:34-65(a)(2).]
Unless defendant's moves to New York and then New Jersey were
deemed temporary absences from South Dakota, it would appear that neither
South Dakota nor any other state was the children's home state when the
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custody action commenced, nor was it in the previous six months. The
children had left South Dakota over seven months before the custody action
filing on January 28, 2016. Thus, the court conceivably could have grounded
New Jersey jurisdiction on the basis of the "significant connection" and
"substantial evidence" tests. In January 2016, a plausible argument could have
been made that those tests were satisfied, given the children's residence in New
Jersey for over five months.
However, the Family Part did not make findings with respect to those
tests, nor do the orders reflect any reliance on them. Rather, the Family Part,
evidently relying on plaintiff's representations, and lacking the benefit of a
response from defendant, exercised jurisdiction based on its mistaken
determination that New Jersey was the children's home state. Furthermore, the
South Dakota court declined jurisdiction based on the same determination.
Even if the trial court could have initially exercised jurisdiction on
practical grounds, notwithstanding New Jersey was not the children's home
state, that basis for exercising jurisdiction has disappeared. By the time
defendant sought an order dismissing the case in April 2017, neither party nor
the children had been in New Jersey for almost a year and a half. We take
judicial notice of the fact that no orders have been entered in the Family Part
in connection with this case since entry of the June 2017 order on appeal.
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As a result, as of June 2017, when the trial court denied defendant's
motion, it lacked "exclusive, continuing jurisdiction" over the initial
determination. That is so for two independent reasons. First, "neither the
child, the child and one parent, nor the child and a person acting as a parent
have a significant connection with this State and . . . substantial evidence is no
longer available in this State concerning the child’s care, protection, training,
and personal relationships." N.J.S.A. 2A:34-66(a)(1); see Griffith, 394 N.J.
Super. at 146 (noting that "[t]he question whether the requisite 'significant
connection' remains is fact specific"). Second, "neither the child, nor a parent,
nor any person acting as a parent presently resides in this State." N.J.S.A.
2A:34-66(a)(2).
Furthermore, as of June 2017, South Dakota would be a more convenient
forum to exercise jurisdiction under N.J.S.A. 2A:34-71. Even if, initially, the
Family Part properly exercised jurisdiction for reasons it did not express, a
New Jersey court "may decline to exercise its jurisdiction at any time if it
determines that it is an inconvenient forum under the circumstances and that a
court of another state is a more appropriate forum." Ibid. We need not
extensively consider the statutory factors to conclude that South Dakota is a
more appropriate forum than New Jersey.
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Even if domestic violence occurred in New Jersey (the parties'
competing claims were never resolved), New Jersey is poorly situated to "best
protect the parties and the child," since no one lives here anymore. See
N.J.S.A. 2A:34-71(b) (stating, as a factor in determining a forum's
convenience, "whether domestic violence has occurred and is likely to
continue in the future and which state could best protect the parties and the
child"). Besides, defendant alleged that domestic violence also occurred in
South Dakota and New York.
Also, the children have now resided outside the State for over two and a
half years. See N.J.S.A. 2A:34-71(b)(2) (naming as a relevant factor "the
length of time the child has resided outside this State"). New Jersey is far
from where the children and defendant reside. See N.J.S.A. 2A:34-71(b)(3)
(naming as a relevant factor "the distance between the court in this State and
the court in the state that would assume jurisdiction"). The weight of evidence
relevant to a custody determination at this point is located in South Dakota,
and perhaps to some extent in New York, assuming plaintiff continues to
reside there. See N.J.S.A. 2A:34-71(b)(4) (naming as a relevant factor "the
nature and location of the evidence required to resolve the pending litigation").
At this point, New Jersey has no significant familiarity with the facts and
issues pertaining to custody. See N.J.S.A. 2A:34-71(b)(8) (naming as a
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relevant factor "the familiarity of the court of each state with the facts and
issues of the pending litigation"). The Family Part never held a plenary
hearing to address custody.
Because New Jersey lacks exclusive, continuing jurisdiction, South
Dakota courts are free to exercise jurisdiction without trampling upon New
Jersey's exercise of jurisdiction, even assuming, without deciding, that
jurisdiction was properly exercised in 2016. If defendant and the children
have resided in South Dakota since January 2016, then the South Dakota court
has jurisdiction to modify the October 2016 New Jersey order, which granted
plaintiff only temporary custody. Notably, that award of custody was desig ned
merely to bring the parties and children before the New Jersey court so it could
make a final determination, based on a full consideration of the evidence.
Under S.D. Codified Laws § 26-5B-203, which is analogous to N.J.S.A.
2A:34-67, the South Dakota court may not modify an out-of-state order, such
as the October 2016 New Jersey order, unless two conditions are met. First,
the South Dakota court must have "jurisdiction to make an initial
determination under § 26-5B-201(a)(1) or (2)" – which is equivalent to
N.J.S.A. 2A:34-65(a)(1) or (2). In other words, South Dakota must satisfy the
"home state" requirement. That factor would now appear to be satisfied,
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assuming the continued residence there of the children and defendant for six or
more consecutive months.
The second condition may be satisfied two ways. It may be satisfied if
"the court of the other state [that is, New Jersey] determines it no longer has
exclusive, continuing jurisdiction . . . or that a court of [South Dakota] would
be a more convenient forum." S.D. Codified Laws § 26-5B-203(1). We have
made both those determinations. Alternatively, the second condition may be
satisfied if "[a] court of [South Dakota] or a court of the other state [New
Jersey] determines that the child, the child's parents, and any person acting as a
parent do not presently reside in the other state [New Jersey]." S.D. Codified
Laws § 26-5B-203(2). We have made that determination as well.
We appreciate the Family Part's concern that dismissing the action
entirely would leave the parties with no forum to resolve their custody dispute.
However, the provision governing declining jurisdiction based on inconvenient
forum empowers the court to stay all proceedings, conditioned upon the
commencement of child custody proceedings in the more convenient forum.
N.J.S.A. 2A:34-71(c).
In sum, we reverse the trial court's order denying the motion to dismiss
and retaining jurisdiction. In the exercise of caution, we do not order the
pending matter be dismissed immediately. Rather, it shall be stayed so that
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defendant may, within thirty days, renew or commence proceedings in South
Dakota. Once that occurs, the Family Part shall dismiss the case. 2
Reversed and remanded. We do not retain jurisdiction.
2
The trial court shall also vacate the bench warrant if it remains of record.
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