SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-1779-97T1
LINDA M. BLESS,
Plaintiff-Appellant,
v.
RUDOLF A. BLESS,
Defendant-Respondent.
__________________________
Argued: December 14, 1998 - Decided: December 31, 1998
Before Judges Havey, P.G. Levy and Lesemann.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Monmouth County.
Laura S. Witherington argued cause for
appellant (Chamlin, Rosen & Uliano, attorneys;
Ms. Witherington, on the brief).
Patricia E. Apy argued the cause for appellant
(Paras, Apy & Reiss, attorneys; Ms. Apy,
Christine C. Cockerill, and Scott B. Engleman,
on the brief).
The opinion of the court was delivered by
P.G. LEVY, J.A.D.,
This is an international child custody dispute in which
the trial judge refused to stay his prior order denying plaintiff's
motion for modification of the parties' custody agreement and
ordering the return of the parties' child to Switzerland on the
ground that New Jersey lacked subject matter jurisdiction because
Switzerland had become the child's home state. Plaintiff appeals,
contending the judge erred in (1) determining that Switzerland had
jurisdiction without determining whether New Jersey had concurrent
jurisdiction and, if so, which of the two forums was more
convenient for litigating the custody issue; (2) refusing to
enforce the portion of the parties' agreement that reserved subject
matter jurisdiction in New Jersey over custody disputes; (3)
refusing to exercise jurisdiction on the request for a stay after
having exercised jurisdiction on a previous motion to modify; and
(4) making findings of fact that are unsupported by the record.
We conclude that New Jersey had subject matter
jurisdiction, and therefore we reverse and remand.
The parties were married in 1987, their son Rudy was born
in 1991 and they were divorced in 1994, the final judgment
incorporating their property settlement agreement (PSA). The
judgment provided for joint legal custody of Rudy with plaintiff
designated as the primary residential parent; defendant was granted
"fair, reasonable, and liberal visitation with [Rudy]." The
parties were New Jersey residents, but sometime thereafter,
defendant remarried and moved to Switzerland. That change of
circumstance resulted in a consent order, filed April 28, 1995,
modifying defendant's visitation schedule, given his relocation to
Switzerland. Rudy's visits with defendant were tied to the Easter
and Christmas holidays and the summer season. The consent order
further provided: "Despite defendant's relocation to Zurich,
Switzerland, any questions or disputes that may arise between the
parties as to child support, custody and visitation shall remain
subject to the jurisdiction of New Jersey."
During the summer of 1995, Rudy spent approximately six
weeks with defendant in Switzerland, and in 1996 approximately four
months between May and August. In September 1996, Rudy started
kindergarten at St. Rose Grammar School in Belmar. However, when
plaintiff experienced a housing problem,See footnote 1 plaintiff asked defendant
if he would like Rudy to finish out the kindergarten year in
Switzerland, and defendant agreed. Although the unrepresented
plaintiff believed that she and defendant had agreed that Rudy
would be returned to her during the summer of 1997 so that he could
attend first grade in New Jersey, on December 12, 1996, the parties
entered into a consent order modifying their prior agreements,
which stated differently.
That consent order specified that the PSA would "remain
in full force and effect." However, while providing that the
parties would continue to share legal custody, the consent order
designated defendant the primary physical custodial parent
effective January 1, 1997, "for an indefinite period of time, with
both parties agreeing to make all future decisions concerning
custody of their child based on his best interests." Plaintiff was
granted visitation with Rudy in Switzerland during his school
vacations, with defendant having agreed to pay for up to four
airline tickets per year for plaintiff's travel.
According to plaintiff, the quoted terms were inserted
for the following reasons:
I therefore requested that a paragraph be
included in the Consent Order which would
allow Rudy to be returned to me prior to the
summer of 1997 in the event that he expressed
a desire to do so. Thus, my understanding
with regard to the Consent Order was that, in
the event that Rudy adjusted well, he would be
returned to me during the summer of 1997 but
that, in the event that he experienced anxiety
or stress as a result of the move, he would be
returned to me prior to that date.
Plaintiff offers a number of other explanations in support of her
position that the agreement does not mean what it says, including
the fact that she would have insisted on summer visitation with
Rudy in New Jersey, just as defendant had summer visitation with
Rudy in Switzerland.
Rudy left New Jersey for Switzerland on December 30,
1996. After Rudy arrived, plaintiff spoke to him on the telephone
nearly every day. In early February 1997, Rudy expressed the
desire to return to New Jersey. When plaintiff discussed Rudy's
statement with defendant, defendant requested that Rudy be given
more time to adjust, and the parties agreed that plaintiff would
visit Rudy during his winter vacation. A series of visits ensued,
and each time Rudy expressed a desire to return to New Jersey.
Defendant disagreed and eventually told plaintiff that he had
enrolled Rudy in the first grade at a Swiss school. This
litigation followed.
On June 9, 1997, plaintiff filed a motion seeking the
return of residential custody, reinstatement of the original
visitation schedule between Rudy and defendant, and the
reinstatement of child support. Defendant cross moved for security
to be posted to guaranty Rudy's return to Switzerland at the end of
his summer visit with plaintiff. The motion judge denied the
motion and the cross motion on July 11, 1997 (the order was entered
on August 6, 1997). However, he did grant plaintiff extended
parenting time with Rudy in New Jersey from July 13 through August
31, 1997, though Rudy was to be returned to defendant in
Switzerland by August 25, 1997. Moreover, the judge said that
"[s]hould the plaintiff seek to change custody, the parties may
obtain expert custody evaluation at their own expense."
After the hearing, and pursuant to the judge's
suggestion, plaintiff's counsel contacted Michele Rabinowitz, a
psychologist, for the purpose of performing a custody evaluation.
Rabinowitz required the participation of both parents and Rudy.
Defendant refused to participate. Therefore, Rabinowitz was able
to evaluate only plaintiff and Rudy for the purpose of determining
whether there were "psychological factors that might alter the
Court's decision concerning Rudy's return to Switzerland with his
father."
Then, on August 20, 1997, plaintiff filed an order to
show cause requesting a stay of the earlier order requiring Rudy's
return to Switzerland and an order (1) compelling defendant to
submit to and pay his portion of the custody evaluation with
Rabinowitz; (2) scheduling a plenary hearing to determine
residential custody, visitation and child support; and (3) awarding
other unspecified equitable relief. This time the judge ruled that
Switzerland, not New Jersey, had "exclusive subject matter
jurisdiction" over the custody issue under the Hague Convention,
denied the motion for change in custody status for lack of
jurisdiction, denied the request to have defendant submit to a
child custody evaluation in New Jersey and ordered plaintiff to
surrender custody of Rudy to defendant (the order was entered
October 17, 1997).
Although it is not clear from the record, plaintiff's
initial motion for the return of primary residential custody
appears to have been based upon her understanding that Rudy would
be returned to her during the summer of 1997. The motion was
denied on the grounds that (1) the parties' agreement granted
defendant primary residential custody "for an indefinite period of
time;" (2) the judge did not know what was meant by the phrase
"indefinite period of time;" (3) plaintiff had not made any
allegations that defendant was abusing or neglecting Rudy; (4) it
was not in Rudy's best interest to be "shuffled between the
parents, not to mention between two distant countries;" and (5) it
was in Rudy's best interest to remain in Switzerland "'for the time
being'." However, the judge stated that if plaintiff wanted to
change custody, the parties could obtain an expert custody
evaluation at their expense.
The jurisdiction issue was not raised until the second
hearing. After plaintiff had attempted to procure a custody
evaluation (which defendant's lack of cooperation prevented) and
filed a motion (in the form of an order to show cause) seeking a
stay of the prior order and a full evaluation and hearing, the
judge stated: "The Court is left with the situation of dealing
with a question that already has been dealt with. And that is the
question of the return of Rudy to Switzerland. That matter was
decided by this Court on an earlier date." Turning to the
jurisdiction issue, the judge ruled that Switzerland was Rudy's
home state and had subject matter jurisdiction over this dispute
under the Hague Convention, because (1) Rudy had the right to live
there since December 12, 1996, the date that the December 1996
consent order was filed; (2) Rudy had lived in Switzerland for a
"significant portion" of six months or for "[s]ubstantially" six
months; and (3) plaintiff failed to show that Switzerland could not
fairly address the custody issues.
The jurisdiction issue is governed by the New Jersey
Constitution, article VI, section 3, paragraph 2; N.J.S.A. 2A:34-
23; and the Uniform Child Custody Jurisdiction Act, N.J.S.A. 2A:34-
28 to -52 (UCCJA). The pertinent provision of the New Jersey
Constitution establishes original jurisdiction in the Superior
Court of New Jersey "in all causes." N.J. Const. art. VI, § 3,
¶ 2. N.J.S.A. 2A:34-23 authorizes the court to modify custody
orders. Thus, New Jersey had, and continues to have, subject
matter jurisdiction over this dispute, whereas the UCCJA controls
the "'exercise'" of its jurisdiction. G.C. v. M.Y., 278 N.J.
Super. 363, 371 (App. Div. 1995) (quoting Neger v. Neger, 93 N.J.
15, 27-28 (1983)).
Here, the question of whether New Jersey had jurisdiction
over the custody dispute was never considered. In light of the
provisions of our constitution and N.J.S.A. 2A:34-23, the order of
October 17, 1997 is erroneous as a matter of law. Kimmelman v.
Henkels & McCoy, Inc., 108 N.J. 123, 136 (1987). Because New
Jersey had subject matter jurisdiction at the time plaintiff's
motion was filed, and the New Jersey motion was the only proceeding
concerning Rudy's custody that had been filed and was pending,See footnote 2
there was no reason why New Jersey should not have exercised
subject matter jurisdiction over the dispute. N.J.S.A. 2A:34-34
(New Jersey court shall not exercise jurisdiction if proceeding
pending in another court at time New Jersey action filed unless
other action stayed and then not without taking certain steps).
See als
o, G.C., supra, 278 N.J. Super. at 369 (rejecting father's
contention that New Jersey lacked jurisdiction because New York had
become children's home state under the UCCJA and noting that no
action had been filed in New York or was pending there).
The jurisdictional provisions of the UCCJA apply to
international custody disputes. Ivaldi, supra, 147 N.J. at 198.
N.J.S.A. 2A:34-31, which sets forth the prerequisites necessary to
establish jurisdiction, provides in pertinent part:
a. The Superior Court of the State of
New Jersey has jurisdiction to make a child
custody determination by initial or
modification decree if:
(1) This State (i) is the home state of
the child at the time of commencement of the
proceeding, or (ii) had been the child's home
state within 6 months before commencement of
the proceeding and the child is absent from
this State because of his removal or retention
by a person claiming his custody or for other
reasons, and a parent or person acting as
parent continues to live in this State; or
(2) It is in the best interest of the
child that a court of this State assume
jurisdiction because (1) the child and his
parents, or the child and at least one
contestant, have a significant connection with
this State, and (ii) there is available in
this State substantial evidence concerning the
child's present or future care, protection,
training, and personal relationships; or
. . .
(4)(1) It appears that no other state
would have jurisdiction under prerequisites
substantially in accordance with paragraphs
(1), (2), or (3), or another state has
declined to exercise jurisdiction on the
ground that this State is the more appropriate
forum to determine the custody of the child,
and (ii) it is in the best interest of the
child that this court assume jurisdiction.
[N.J.S.A. 2A:34-31(a)(1)-(3), (4).]
Under the UCCJA, home state is defined as
the state in which the child immediately
preceding the time involved lived with his
parents, a parent, or a person acting as
parent, for at least 6 consecutive months, and
in the case of a child less than 6 months old
the state in which the child lived from birth
with any of the persons mentioned. Periods of
temporary absence of any of the named persons
are counted as part of the 6-month or other
period. . . .
[N.J.S.A. 2A:34-30(e).]
The term "state" includes foreign countries. Ivaldi,
supra, 147 N.J. at 203. The crux of the judge's jurisdiction
ruling was that Switzerland "appears to have jurisdiction based
upon the fact that the child has been there the requisite number of
months." As part and parcel of this ruling, the judge determined
that (1) Rudy had lived in Switzerland for "[s]ubstantially . . .
at least six months," and (2) the custody dispute was subject to
the jurisdiction of Switzerland "under the Hague Convention."
We respectfully disagree with those determinations and
find, instead, that New Jersey had the jurisdiction to decide the
custody issues between the parties. The UCCJA defines "home state"
as the state where the child "immediately preceding the time
involved lived . . . for at least 6 consecutive months." N.J.S.A.
2A:34-30(e) (emphasis added). The phrase "immediately preceding
the time involved" is implicitly clarified by N.J.S.A. 2A:34-
31(a)(1) to mean the "commencement of the proceeding." Thus, the
state where Rudy lived for "at least 6 consecutive months" prior to
the institution of this proceeding was his home state.
We have decided that a child's home state should be
determined as of "the time of filing of the immediate application
being considered by the court." L.F. v. G.W.F., 183 N.J. Super.
195, 203 (App. Div. 1982). Read literally, the date would have
been the filing of the motion that resulted in this appeal. That
motion is the order to show cause filed on August 20, 1997.
However, given what transpired below, L.F., supra, should not be
read so restrictively.
Plaintiff first sought jurisdiction under the UCCJA in
June 1997 when she filed the motion for modification of the
December 1996 agreement. That motion was denied without prejudice
to her right to seek custody based upon a custody evaluation.
Perhaps the better response would have been for the judge to have
ordered the custody evaluation and reserve decision pending a
hearing, but nevertheless that was not done. However, in reliance
upon the denial of the motion without prejudice and the judge's
suggestion that an evaluation be obtained, plaintiff attempted to
do just that but fell short as a result of defendant's refusal to
cooperate. Plaintiff immediately returned to court armed with the
best she could do without defendant's cooperation and sought an
emergency stay given Rudy's imminent departure. Due to the
proximity in time and the interrelationship between the two
motions, we conclude that the date on which the proceedings
commenced is June 9, 1997.
Using that date, it is apparent that Switzerland was not
Rudy's home state. The December 12, 1996, consent order provided
that defendant would become the primary physical custodial parent
"effective January 1, 1997." It is undisputed that Rudy left the
United States for Switzerland on December 30, 1996, pursuant to the
consent order. Therefore, as of June 9, 1997 when the motion for
return of residential custody was filed, Rudy had lived in
Switzerland for only a little more than five months. Additionally,
we are mindful that in Neger, supra, 93 N.J. at 30-31, the Court
quoted from and cited with approval the California Supreme Court's
declaration in Kumar v. Superior Court of Santa Clara County, 652
P.2d 1003, 1009 (1982), that "'all petitions for modification must
be addressed to the state which rendered the original decree if
that state had and retains jurisdiction under the standards of the
[UCCJA].'"
We also find that the Hague Convention, more formally
known as the Hague Convention on the Civil Aspects of International
Child Abduction, is inapplicable here. This case is not, and never
was, based upon an abduction. Rudy is, and has been, with his
father in Switzerland pursuant to the December 1996 consent order
and the August 6, 1997, order denying plaintiff's motion for the
return of residential custody. Thus, neither the Hague Convention
nor the cases that interpret any of its provisions apply to the
facts of this case. See Rozkowski v. Rozkowska, 274 N.J. Super.
620, 630-31 (Ch. Div. 1993)( Hague Convention provides mechanism to
determine whether child was wrongfully removed to, or being
illegally retained in, some other country).
Additionally, we conclude that New Jersey has
significantly more connection with Rudy than does Switzerland. If
a child has no home state, then the state where the child and his
family have equal or stronger ties will have jurisdiction. E.E.B.
v. D.A., 89 N.J. 595, 609 (1982), cert. denied sub nom., Angle v.
Bowen, 459 U.S. 1210, 75 L. Ed. 2d 445, 103 S. Ct. 1203, reh'g
denied, 460 U.S. 1104, 76 L. Ed. 2d 369, 103 S. Ct. 1806 (1983).
Indeed, "[i]t is implicit in the UCCJA that a state does not
automatically lose jurisdiction over custody when it is no longer
the home state, if one parent remains resident in that state, the
child has significant contact with the state, there is substantial
relevant evidence available in the state, and it is in the child's
best interest for that state to make the determination." Ganz v.
Rust, 299 N.J. Super., 324, 333 (App. Div. 1997). This is because
the UCCJA does not require "blind obedience" to home state
jurisdiction. E.E.B., supra, 89 N.J. at 610. Thus, the
"significant connection" test of jurisdiction, N.J.S.A. 2A:34-
31(a)(2), may be resorted to even if another forum prevails under
the home state analysis. Even under this test, which may be
utilized as an alternative to the home state analysis, E.E.B.,
supra, 89 N.J. at 609, New Jersey would have prevailed.
The "significant connection" test is set forth as
follows:
It is in the best interest of the child
that a court of this State assume jurisdiction
because (i) the child and his parents, or the
child and at least one contestant, have a
significant connection with this State, and
(ii) there is available in this State
substantial evidence concerning the child's
present or future care, protection, training,
and personal relationships. . . .
[N.J.S.A. 2A:34-31(a)(2).]
The "significant connection" test is met in this case.
But for the order under review, Rudy would have been residing in
Switzerland for only slightly more than five months. See e.g.,
Macek v. Friedman, 240 N.J. Super. 614, 617-18 (App. Div. 1990)
(fact that court permits parent to remove child from New Jersey
does not affect New Jersey's jurisdiction when the decision
allowing the parent to remove child is reversed). Rudy's only
relatives in Switzerland are his father, stepmother and half
sister. He has a close relationship with his mother, maternal
grandfather, paternal grandparents, Uncle Bill, cousins Kim and
Ryan, and his good friend Kyle, all of whom are in New Jersey,
where Rudy had resided all his life up until the last day of 1996
(except, of course, for his visits to Switzerland). Clearly, then,
the best interest of Rudy would require that jurisdiction be
retained in New Jersey even if there were no home state or there
were concurrent proceedings.
Furthermore, no consideration was accorded the parties'
agreements of April 28, 1995 and December 12, 1995, which expressly
provide that New Jersey would have jurisdiction over custody and
visitation issues. We conclude that their agreements are
enforceable and should be given effect.
The April 28, 1995, consent order, which was entered into
after defendant had relocated to Switzerland, specifically states:
"Despite defendant's relocation to Zurich, Switzerland, any
questions or disputes that may arise between the parties as to
child support, custody and visitation shall remain subject to the
jurisdiction of New Jersey." The first paragraph of the December
12, 1996, consent order, which transferred primary physical custody
of Rudy from plaintiff to defendant for an undetermined amount of
time, specifically states that, except for the terms set forth in
the December 12 consent order, all terms and conditions of the
April 28 order "shall continue in full force and effect." The
December 12 consent order did not address jurisdiction. Therefore,
the jurisdiction clause of the April 28 consent order remained in
effect.
Although subject matter jurisdiction cannot be conferred
by agreement where there is none, Neger, supra, 93 N.J. at 35;
G.C., supra, 278 N.J. Super. at 371, such is not the case here. As
discussed previously, New Jersey did have subject matter
jurisdiction over the dispute under the constitution, N.J.S.A.
2A:34-23, and the UCCJA. In G.C., we "perceive[d] no public policy
basis in the record to deny enforcement of the parties' agreement
to retain New Jersey's jurisdiction." 278 N.J. Super. at 370-71.
There we enforced the parties' forum selection clause in their
custody agreement on the following grounds:
(1) the New Jersey Superior Court issued the
initial custody decree as part of the divorce
judgment; (2) the children resided in New
Jersey with their mother and New Jersey was
their home state at the time of the divorce
and when the amendment was executed; (3) the
period of residential custody with the father
in New York was a trial period subject to
further agreement or court decree; and (4) the
mother continues to reside in New Jersey.
[Id. at 370.]
In enforcing the agreement, we observed that the UCCJA
rejects "'a rigid rule vesting jurisdiction automatically in the
home state and favors instead, a more flexible approach.'" Ibid.
(quoting E.E.B., supra, 89 N.J. at 610). Moreover, it was also
noted that the father's "post-ruling forum shopping" would defeat
the UCCJA's statutory purpose, to wit: defining and stabilizing
the right to custody in the best interest of the child. Ibid.
Finally, public policy did not prohibit enforcement of the
agreement because the UCCJA "provides that the parties' agreement
on 'another forum which is no less appropriate' is a factor in
determining whether a court should decline to exercise its
jurisdiction." Id. at 370-71 (quoting N.J.S.A. 2A:34-35(c)(4)).
In response to the father's argument that an agreement
cannot impose subject matter jurisdiction where there is none, it
was noted that New Jersey has jurisdiction virtually as a matter of
course over custody disputes. Id. at 371 (citing N.J. Const. art.
VI, § 3, ¶ 2; N.J.S.A. 2A:34-23; N.J.S.A. 9:2-1 and -3). Thus, "an
agreement to retain jurisdiction in New Jersey does not impose
subject matter jurisdiction on New Jersey courts." Ibid.
Finally, G.C. held that New Jersey had subject matter
jurisdiction over the dispute pursuant to the "significant
connection" analysis set forth in N.J.S.A. 2A:34-31(a)(2) because,
among other things, a New Jersey court issued the initial custody
decree, and New Jersey maintained a significant connection with one
parent and the children "as a result of the joint custody
arrangement contained in the divorce judgment and continued in the
amendment." Id. at 371-72.
There is no reason why G.C. should not control the
outcome of this case. As in G.C., (1) a New Jersey court issued
the initial custody decree in the divorce judgment; (2) Rudy
resided in New Jersey with plaintiff, and "New Jersey was their
home state at the time of the divorce judgment and its subsequent
amendments"; (3) the agreement stated that Rudy's stay with
defendant was for an indefinite period, not permanent; and (4)
plaintiff continues to reside in New Jersey. G.C., supra, 278 N.J.
Super. at 370. Moreover, most of Rudy's relations, friends, and
personal history were in New Jersey. N.J.S.A. 2A:34-31(a)(2).
We conclude that as a matter of law New Jersey has proper
jurisdiction, and that jurisdiction has not been obliterated by
Rudy's court-ordered presence in Switzerland since August 1997.
The matter is remanded to the Family Part for further consideration of the merits of the August 1997 order to show cause. We do not retain jurisdiction.
Footnotes