Philipp v. Stahl

The opinion of the court was delivered by

LESEMANN, J.A.D.

The parties in this Family Part case were married in 1975, divorced in Georgia on April 23, 1993, and seem to have spent much of their time since the divorce battling each other, first in the courts of Georgia and thereafter in the courts of New Jersey. The present appeal stems from an application of the plaintiff wife to require her ex-husband to contribute to their daughter’s college expenses at Princeton and for additional miscellaneous relief. The trial court held that the Uniform Interstate Family Support Act (UIFSA), N.J.S.A. 2A:4-30.65 to -30.123, placed “exclusive jurisdiction” in the courts of the state that had issued the original support order (Georgia), and thus this state had no jurisdiction to act. We are satisfied, however, that since a court in this state issued a number of post-divorce orders which touched on support of the parties’ children,¹ and both the plaintiff wife and the daughter whose educational costs are at issue live in this state, the New Jersey Family Part does have jurisdiction to hear and resolve the matter. Accordingly, we reverse.

I

UIFSA was adopted by all fifty states at the instigation of Congress which sought to eliminate the problem of conflicting •support orders by different states, each of whom claimed jurisdiction in a support dispute. Thus, the provisions of the Georgia statute are virtually identical to those of the New Jersey Act. See GACode Aim. § 19-11-110 to 118.²

The basic concept of UIFSA is relatively simple, although its format may contribute to some lack of clarity by employing what would seem to be self-defining terms, such as “continuing exclusive jurisdiction,” to mean something other than what their normal usage would suggest. Indeed, it is the seemingly anomalous concept of two states having such “continuing exclusive jurisdiction” over the same matter which lies at the root of the jurisdictional dispute in this case.

The jurisdictional provisions of UIFSA which govern this case are set out in four subsections of N.J.S.A 2A:4-30.72. Subsection a provides that, unless all parties agree otherwise, if a court of this state has issued “a support order,” then that court has “continuing, exclusive jurisdiction over a child support order” so long as either the obligor or obligee under the order, or “the child for whose benefit the support order is issued” continues to reside in this state.³ Subsection b, however, provides that a court of this state which has issued a child support order “may not exercise its continuing jurisdiction to modify the order if the order has been modified by a tribunal of another state pursuant to this act or a law substantially similar to this act.”

Subsection c seems to be essentially a restatement of subsection b. It says that if a “child support order” issued by this state is “modified by a tribunal of another state pursuant to this act or a law substantially similar to this act,” the New Jersey court “loses its continuing, exclusive jurisdiction with regard to prospective enforcement of the order issued in this State____” Finally, subsection d directs that a court of this state “shall recognize the continuing, exclusive jurisdiction of a tribunal of another state which has [already] issued a child support order pursuant to this act... ,”⁴

The anomaly in the statute, and the seeming self-contradiction in its terminology, stems from its direction that so long as a support order issued by one state is in effect, a second state shall not also issue a support order in that same case. However, the statute then contains a description of what is to happen if such a second state does issue a support order: the order of the second state replaces that of the first, and it is the second state not the first which retains “exclusive jurisdiction.”

If the New Jersey court has issued one or more orders that “modified” the original Georgia “support order” (embodied in its judgment of divorce), then Georgia lost the “continuing, exclusive jurisdiction” which it once had regarding support matters, and that “continuing, exclusive jurisdiction” is now vested in New Jersey. Plaintiff claims there have been at least three such New Jersey orders and that jurisdiction to decide the support issue she now raises rests here. We agree.

The facts of the case, as they relate to the jurisdictional issue on appeal, are not in dispute. The Georgia divorce decree was issued on April 23, 1993. It incorporated a binding arbitration agreement dealing with custody, support and related matters, and also embodied the parties’ agreement regarding visitation. At the time, the parties’ two children were aged twelve (Julia) and eight (Eric). The wife was designated as principal custodial care giver and the husband was to pay child support of $500 per month, per child. He was also to pay for both children’s tuition at private school (with limitations tied to the costs of certain designated schools in Georgia), and the judgment further provided that “in addition to tuition,” the father would be “responsible for other reasonable costs of the school, for normal fees, and activities of the other students such as athletic events charged by the school and educational trips----” In addition, defendant was to insure the children under his medical plan, with the parties dividing equally the cost of medical services beyond those covered by the plan. The wife was to maintain the children under her dental plan, with uncovered costs to be similarly divided between the parties. And finally, the judgment provided that, “If either or both of the children attend summer camp, the cost shall be equally divided between the parents.” Neither the judgment nor the arbitration agreement whose provisions were incorporated into the judgment contained any specific reference to college expenses.

Less than six months after entry of the divorce judgment, the plaintiff wife decided to move, with the children, to New Jersey. As required by the judgment, she notified the defendant of that intention,⁵ and defendant moved to enjoin the relocation and also to obtain custody of the children. That motion was denied by the Georgia Superior Court on September 14, 1993. Plaintiff notes, correctly, that the decision rendered on September 14, 1993, denying defendant’s requested relief, was the last matter heard and decided in a Georgia court.

In March 1994, plaintiff moved in the Family Part of the New Jersey Superior Court for an order modifying visitation. The New Jersey judge hearing the matter consulted with his counterpart in Georgia and thereafter announced (and included in an order) a statement that, “[I]t has been mutually determined (by the two judges) that this court has proper jurisdiction and that there is no conflict with the ongoing proceedings in Georgia,” The New Jersey judge then found this state to be the “home state of the children” under the Uniform Child Custody Jurisdiction Act (UCCJA), N.J.S.A. 2A:34-31. The order went on to supercede the visitation provisions in the Georgia judgment with a new visitation program and then significantly for our purposes also changed a portion of the support provisions in the Georgia judgment. It modified the requirement that called on the husband to pay for all visitation costs (which had been entered while the wife still lived in Georgia), and provided instead that the defendant was to pay sixty percent and the plaintiff forty percent of those expenses. The order further stated that, except as thereby changed, all provisions of the divorce judgment were to remain in full force and effect. However, it then included another significant provision, specifying that “[a]ny modifications, supplementations, or enforcement of this Order or of the 1992 judgment shall go forward before this court.”

On April 25, 1995, the New Jersey Family Part entered a second order which had a significant effect on support payments. In addition to enforcement provisions, directives respecting reimbursement for past due amounts, and a provision for wage garnishment in the future, the court changed the prior order which had called for payment of $500 per month for each of the two children, to provide for one unallocated payment of $1,000 per month for the two children. That modification was not simply a change in verbiage. As plaintiff correctly argues, while on its face the Georgia judgment would terminate payments for the older child when she became emancipated, and thus defendant’s total child support payments would be reduced to $500 per month, the New Jersey child support guidelines provide otherwise. Application of those guidelines would mean that when the older child became emancipated, defendant’s payments would be reduced to $688 per month rather than to $500 per month. In addition, this order contained a provision comparable to that quoted above from the March 1999 order, stating that “the Chancery Division of this court shall retain jurisdiction over the subject matters addressed herein.”

The third New Jersey order which affected support payments was entered on August 18, 1999. That order, entered by consent of the parties, provided that custody of Eric would pass to defendant in Georgia. However, it also provided that defendant would maintain health insurance for Eric and would be “responsible for all [his] uninsured health care expenses, including but not limited to dental expenses.... ” It thus relieved plaintiff of the obligation to pay one-half of Eric’s un-reimbursed medical expenses and also relieved her of the obligation to maintain dental insurance for Erie. The order further provided that, except as related to the medical expense and insurance issue, all provisions of the 1992 judgment remained in effect, and it contained a provision similar to that set out in the two other New Jersey orders described above. It said that, “Any modifications, supplementation, or enforcement of any [prior order] or of this Order shall go forward before this Court.”

Plaintiff argues there are other New Jersey orders as well, which modify the original Georgia support judgment and thus provide a further basis for New Jersey’s continuing jurisdiction under UIFSA. Those other orders, however, deal mainly with enforcement and it is not clear whether they could properly be characterized as modifying prior support orders. But regardless, the three orders just discussed do, clearly and unequivocally, modify prior support obligations. In the face of those orders, we are satisfied that the UIFSA provisions quoted above not only justify, but indeed require, that further such applications be handled in this state.

Further, it seems clear that the parties at least impliedly understood and acknowledged that all further proceedings in this case — concerning support as well as custody and visitation — would be held in New Jersey. The provisions in the three quoted orders all so state. And while those statements do not expressly refer to support issues, their broad, virtually all inclusive language impliedly includes those issues as well. If the parties had some other intention — if they intended that support issues would remain within the jurisdiction of the Georgia court — it is difficult to believe they would not have so specified or, at least that they would not have employed less inclusive language in stating that all further proceedings would be in New Jersey.

In addition, there is a substantial benefit in vesting one court with jurisdiction to deal with all issues concerning one family, rather than directing certain issues to one court and others to a different court. That possibility of “split jurisdiction” is inherent in the combination of UIFSA which sets out criteria for jurisdiction relating to support issues and the somewhat different criteria employed under the Uniform Child Custody Jurisdiction Act (UCCJA), see N.J.S.A. 2A:34-28 to -52. Here, in view of the 1992 determination that New Jersey was the “home state” of the children under the provisions of UCCJA, and that custody issues should be resolved here, there is an obvious benefit in having related support issues also handled here. Although such unified treatment may not always be possible, when it is possible and is called for by the applicable facts and law, we should welcome the opportunity, rather than feel inclined to reject it because of some unrealistically narrow definition of “support,” or some other reason to now return the case to a Georgia court which last dealt with it in 1993.

Finally, we note that while both parties cite case authority for their positions, we find no case which has definitively resolved the issue presented here. One of the cases cited by both sides, Schuyler v. Ashcraft, 293 N.J.Super. 261, 680 A.2d 765 (App.Div.1996), certif. denied, 147 N.J. 578, 688 A.2d 1054 (1997), a preUIFSA case, holds simply that (even before UIFSA) when a support order has been entered in Florida, and there has been no other support proceeding in this state, New Jersey does not have authority to modify the Florida order. Genoe v. Genoe, 205 N.J.Super. 6, 500 A.2d 3 (App.Div.1985) also cited by both sides, deals only with an indisputable proposition: that merely because this state may have jurisdiction to modify custody or visitation provisions embodied in an earlier order from another state, does not mean it also has authority to modify a support provision in that order. And Whitfield v. Whitfield, 315 N.J.Super. 1, 716 A. 2d 533 (App.Div.1998), simply holds that the authority to enforce an order from another state does not include the power to modify that order.

Peace v. Peace, 325 N.J.Super. 122, 737 A.2d 1164 (Ch.Div.1999) dealt with issues of consent to jurisdiction under UIFSA and the significance of determining which of two states is the home state of a child whose support is in issue. The court correctly perceived that “more than one state can have continuing exclusive jurisdiction under UIFSA,” and the issue is to determine which state’s order is “controlling.” Id. at 131-32, 737 A.2d 1164. It concluded that jurisdiction rested with New Jersey, which had issued the most recent support orders and was the home state of the child a decision consistent with our conclusion that New Jersey also has jurisdiction in this case. See also, as consistent with our interpretation of UIFSA and also supporting the conclusion reached here, Hoehn v. Hoehn, 716 N.E.2d 479 (Ind.Ct.App.1999).

In sum, the language of UIFSA, a reasonable interpretation of facts and law which support the integration into one court of all issues concerning one family, and the limited case law, all support the view that the New Jersey court here had jurisdiction to deal with plaintiffs attempt to require defendant to contribute to their daughter’s college expenses. New Jersey has dealt with prior “support” issues in this case, and this is simply a variation on those “support” matters. See Kiken v. Kiken, 149 N.J. 441, 449-50, 694 A.2d 557 (1997); Sharp v. Sharp, 336 N.J.Super. 492, 503, 765 A.2d 271 (App.Div.2001). A return to Georgia at this point has little to commend it, and should be ordered only if the statute clearly requires that result. It does not, and accordingly, the trial court’s determination that it has no jurisdiction to deal with this matter is reversed.

II

The trial court’s dismissal of this matter on jurisdictional grounds did not specify whether it was referring to subject matter jurisdiction or personal jurisdiction over the defendant. In any event, the issue need not detain us because there is no question that this state may exercise personal jurisdiction over the defendant.

Although defendant claims New Jersey has no statutory or constitutional basis on which to exercise personal jurisdiction over him, we disagree. N.J.S.A. 2A:4-30.68 lists seven bases on which a court may obtain personal jurisdiction over a defendant. The seventh listed category is “any other basis consistent with the constitutions of this State and the United States for the exercise of personal jurisdiction.” ⁶ That reference is to the “minimum contacts” analysis which provides a foundation for exercising this state’s “long-arm jurisdiction.” See International Shoe v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, (1945). And see, Kulko v. California Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978), holding that without such minimal contacts, a state cannot exercise jurisdiction over a parent residing in another state, but also indicating that if there are such minimal contacts, there is no impediment to the exercise of long-arm jurisdiction.

Here, there clearly were more than minimal contacts to provide a basis for jurisdiction. From 1994 through 1999, the defendant was before the courts of this State on what seems an almost constant basis. Some of those proceedings were instituted by him; some by his ex-wife. But all implicated and affected the relationship stemming from his former marriage, his divorce and the subsequent orders affecting that divorce. The contacts were not minimal; they were broad and virtually all-encompassing.

Further, the provisions included in three of the New Jersey court orders specifically stated that further proceedings would take place in this State. As noted above, while those statements did not specifically refer to support matters, they did not exclude support matters, they were couched in broad language, and none referred to the likelihood or possibility of further proceedings in Georgia. Thus, to paraphrase the test referred to frequently in such matters, defendant could hardly have been surprised at the possibility of being “haled into court” in New Jersey. Waste Mgmt., Inc. v. Admiral Ins. Co., 138 N.J. 106, 120-21, 649 A.2d 379 (1994), cert. denied, 513 U.S. 1183, 115 S.Ct. 1175, 130 L.Ed.2d 1128 (1995). As noted, virtually all matters affecting his divorce and his family had occurred here on an almost nonstop basis over the last five to six years, and New Jersey certainly has the power to exercise personal jurisdiction to resolve this latest issue.

Ill

Although plaintiff asks us to declare that defendant is required to share in his daughter’s college expenses, that is not an appropriate determination for us to make at this time. Because of its conclusion that it lacked jurisdiction to decide the matter, the trial court did not deal with the issue. Rather than our dealing with it on appeal, it is appropriate that we remand the matter to the trial court, to hold the necessary hearing and then determine, based on the standards discussed in Newburgh v. Arrigo, 88 N.J. 529, 443 A.2d 1031 (1982), whether and to what extent each of the parties should contribute to their daughter’s college expenses. See N.J.S.A. 2A:34-23a; Finger v. Zenn, 335 N.J.Super. 438, 762 A.2d 702 (App.Div.2000), certif. denied, 167 N.J. 633, 772 A.2d 935 (2001). The basis asserted by defendant as a reason why he should not be required to contribute — the absence of a relationship between him and his daughter — is simply one of the many factors that go into that determination, which should be made initially by the trial court after the necessary hearing.

IV

Although the Family Part concluded that it had no jurisdiction to deal with the issue of college expenses, it did decide a number of miscellaneous requests by plaintiff for payments by defendant.⁷ The court rejected plaintiffs request for participation by defendant in certain school transportation and related expenses for the children; certain camp expenses; the cost of an airplane trip necessitated by the change in Eric’s custody; and payment of school books and supplies. We believe the court erred on the last mentioned issue and that books and supplies should be deemed subsumed within the “normal fees” which defendant was required to pay along with tuition. However, except for that issue, we find that the judgment of the trial court was based on findings of fact which are adequately supported by the evidence, that the issues of law (and those related to the interpretation of prior orders) have no merit and that none of them require discussion in this written opinion. R. 2:ll-3(e)(l)(A) and (E).

Finally, we note plaintiffs claim that the trial court showed bias against her, and her request that the matter be remanded for hearing by a different judge. We find no basis for any such finding nor for any direction that the matter be handled on remand by a different judge.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 Defendant raised no objection to New Jersey's exercising jurisdiction in any of those cases.

2 The statute became effective in this state on March 5, 1998.

3 Recall that the provisions of the Georgia statute are identical with those 'quoted here respecting New Jersey, and thus the same grant of "exclusive jurisdiction” and limitations upon such "exclusive jurisdiction,” apply to Georgia as well as to New Jersey. See GA.Code Arm. § 19-11-114(a) to (d).

4 NJ.S.A. 2A:4-30.72 also includes a subsection e, dealing with temporary support orders, and subsection f, dealing with spousal support and custody visitation matters, neither of which pertains to this appeal.

5 Plaintiff said her job in Georgia had been placed in jeopardy by a major reorganization and that was her reason for the proposed move.

6 Plaintiff also argues that jurisdiction may be had under subsection b which refers to an individual submitting to jurisdiction “by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction.” One could make a reasonable argument that defendant's actions did amount to “consent,” in view of his numerous appearances before New Jersey courts on prior matters which included support issues.

7 Plaintiff claims the court's dealing with these issues on the merits contradicted its determination that it had no jurisdiction to deal with college expenses. Plainly, however, the court viewed these relatively minor matters as enforcement of prior orders and not a modification thereof, and thus there was no inconsistency in its actions.