LINDA SCHOEN FRIZZIE v. DAVID FRIZZIE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2551-04T5F2551-04T5F

LINDA SCHOEN FRIZZIE,

Plaintiff-Appellant,

v.

DAVID FRIZZIE,

Defendant-Respondent.

___________________________________

 

Argued October 12, 2005 - Decided

Before Judges Conley, Winkelstein and Francis.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, FD-03-1164-05.

Robert P. Avolio argued the cause for appellant (Avolio & Hanlon, attorneys; Mr. Avolio and Paul R. Sheehan, on the brief).

George H. Hulse argued the cause for respondent (Hulse & Germano, attorneys; Mr. Hulse, on the brief).

PER CURIAM

In July 2004, the parties relocated from New Jersey to Illinois with their two young children. Five and one-half months later, David filed for divorce in Illinois. This appeal arises from Linda's efforts to have New Jersey exercise, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, N.J.S.A. 2A:34-53 to -95 (UCCJEA), jurisdiction over the custody aspects of the marriage's dissolution. She appeals the trial judge's determination that jurisdiction is in Illinois. We affirm.

The parties were married on May 21, 1994, in Burlington County, New Jersey, where they had both grown up. They have two children, Julia, born in August 1998, and Nicole, born in June 2001. After the birth of their children, Linda became a full-time caregiver.

David, the sole supporter of the family, was employed by Merrill Lynch as a portfolio manager. In early 2004, he received a job offer from PPM America. But that required him to move from New Jersey to Illinois. Defendant accepted the job and began working for PPM America in Chicago in April 2004. In July 2004, the family moved into a home they bought in St. Charles, Illinois. Both children were enrolled in, and began attending, schools in the area.

On January 4, 2005, David filed a petition for dissolution of marriage in the Domestic Relations Division of the Cook County, Illinois Circuit Court. As part of that petition, he requested temporary and permanent joint legal custody of the children. Pursuant to Illinois law, the filing of a divorce complaint triggers an automatic stay of removal of the children from the state. 750 Ill. Comp. Stat. 5/501.1. Seeking to, nonetheless, return to New Jersey with the children, plaintiff filed a complaint for custody in the Family Part of the Burlington County Superior Court and an order to show cause with temporary restraints allowing her to relocate to New Jersey with the children. She contended that New Jersey was the children's "home state" under the UCCJEA.

The trial judge denied her application and dismissed the complaint. The heart of her decision is as follows:

I am persuaded, given the definition of initial child custody jurisdiction under 2A:34-65(a)(1), that under that, that the analysis is that even if this is the Home State of the children, the child is not present, neither of the children are present, and neither of the parents are present.

I also, quite frankly, take a little different view of Home State jurisdiction. I do not believe that when the legislature enacted the Uniform Child Custody Jurisdictional and Enforcement Act, that they meant to wipe away years of cases that dealt with the definition of Home State. And under that law that has preceded and recognizing that that deals with a different iteration of custody law in New Jersey, the cases are clear that Home State should not be defined by an absolute bright line that cannot be - that shouldn't be looked at.

Here, there is substantial compliance with Home State - the Home State definition. Five months and two weeks of living in Illinois, going to school in Illinois - I'll deal with that in a minute - but substantial compliance in terms of five months and two weeks. I do not understand cases that deal with Home State to impose a straight line at six months and that's the simple dividing line. This is a Court of Equity. I'm instructed frequently by litigants that I need to do equity and to - and to look at facts and circumstances and to not draw bright lines. And I understand the Court's - prior Court's determination of the definition of Home State to tell me not to draw bright lines in that regard and I will not.

The defendant's - the plaintiff's argument also is that there is significant contacts. Quite frankly, those significant contacts, but for family members who reside here in New Jersey, are with Illinois. The school - the children are in school there. If there is medical treatment, it's there. The parents reside there, the home is there, the father works there. They have been residents of Illinois certainly since they moved there.

I don't think that I need to make a determination in terms of domicile and residence. We all know the definition, that domicile is - and I might say home is where the heart is, it's where you intend to make your home and residence, is where I hang my hat for [want for] a better word. I mean, I can have many residences, but only one domicile.

When these parties moved to Illinois, sold their home, moved their children, enrolled the children there, commenced work there and began a new life in Illinois, I believe that all the indicia for domicile are present, even if the plaintiff's driver's license remains in New Jersey.

So under 2A:34-65, I do not believe, and I hold that this State should not be the one making the initial child custody jurisdiction determination. That is a determination in the first instance in my mind by Illinois.

I am further persuaded by the fact that the defendant presents to me an emergency motion for transfer venue filed by counsel for Linda Frizzie, the plaintiff in our case, the defendant in the Illinois case, but filed there in Illinois where she says in Paragraph 16 that this motion - her motion there is brought as an emergency motion due to the immediate need on the part of her to grant emergency substantive motions under the UCCJEA and that that was filed apparently on the same day that the verified complaint for custody was filed in New Jersey. So she is and has lawyers in Illinois, has access to the Courts in Illinois, and the Courts in Illinois have the divorce action.

I do not think that it makes sense under the Uniform Act for this State to carve out of that divorce litigation the custody issue and to require the parties to litigate the divorce in Illinois and custody in New Jersey. I do not believe that that was the intent of the Uniform Act, and I will not interpret the Act to so allow.

[Emphasis added.]

The judge's rationale, then, was two-fold. She thought the five months and two weeks domicile in Illinois was substantial compliance with UCCJEA's six-month bright-line rule and that, in any event, the significant contacts were in Illinois. We disagree that substantial compliance with the "home state" definition of the UCCJEA suffices. Cf. Bless v. Bless, 318 N.J. Super. 90, 100-01 (App. Div. 1998) (under UCCJEA's predecessor, the Uniform Child Custody Jurisdiction Act, N.J.S.A. 2A:34-28 to -52, Switzerland was not child's "home state" because child had lived there for "only a little more than five months"). But we agree with the trial judge's ultimate conclusion that Illinois, rather than New Jersey, was the "home state" for the purposes of custody.

The UCCJEA defines "home state" thusly:

"Home State" means the State in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.

[N.J.S.A. 2A:34-54 (emphasis added).]

Neither child here lived in New Jersey with either parent "for at least six consecutive months immediately before the commencement" of the divorce/custody proceeding. New Jersey does not, therefore, qualify as a "home state" under this definition. On the other hand, neither does Illinois.

Jurisdiction over initial custody complaints is governed by N.J.S.A. 2A:34-65. It provides in relevant part:

a. Except as otherwise provided in section 16 [relating to temporary emergency jurisdiction], a court of this State has jurisdiction to make an initial child custody determination only if:
 
(1) this State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State;

 
(2) a court of another state does not have jurisdiction under paragraph (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under section 19 or 20 of this act [N.J.S.A. 2A:34-71 and N.J.S.A. 2A:34-72] and:

 
(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

(3) all courts having jurisdiction under paragraph (1) or (2) of this subsection have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody of the child under section 19 or 20 of this act; or

 
(4) no state would have jurisdiction under paragraph (1), (2) or (3) of this subsection.

[N.J.S.A. 2A:34-65a(1)-(4) (emphasis added).]

Here, N.J.S.A. 2A:34-65a(1) does not apply to either state as neither satisfies the six-month requirement. And, while New Jersey was the home state prior to the move to Illinois, neither child nor parent continued to live in New Jersey at the time of the filing of the complaint. As to subsection (2), while Illinois does not meet the "home state" test of subsection (1), New Jersey cannot exercise jurisdiction under subsection (2) because we agree with the trial judge that the significant contacts and substantial evidence bearing upon the children's "care, protection, training and personal relationships" would be in St. Charles, Illinois, where they have relocated and attend school. Indeed, we note significant involvement on the part of the Illinois court over child-related matters such as support and visitation. Illinois, then, would have jurisdiction pursuant to subsection (2).

Finally, jurisdiction in New Jersey under N.J.S.A. 2A:34-65a(3) does not apply as Illinois has not declined to exercise jurisdiction in favor of New Jersey. And, as we are convinced that Illinois would have jurisdiction pursuant to N.J.S.A. 2A:34-65a(2), New Jersey would not have jurisdiction pursuant to N.J.S.A. 2A:34-65a(4).

 
Affirmed.

The following undisputed facts set forth in David's certification filed in opposition to Linda's emergent application for an order to show cause reflect the family's developing connections with their Illinois home:

[1] I started my employment with PPM America as a Portfolio Manager in Chicago on April 12, 2004[,] and was living in housing provided by my employer until such a time that I was able to find a house.

[2] Between May 1, 2004 and June 26, 2004, Plaintiff came to Illinois for the purpose of house-hunting and/or to purchase a home.

[3] On two of the three house-hunting visits, Plaintiff brought our children.

[4] On June 8, 2004, Plaintiff and I entered into an agreement of sale for, and placed a $25,000 deposit on, my family's current home and residence located at 3515 Majestic Oaks Drive, St. Charles, Illinois.

[5] The closing for 3515 Majestic Oaks Drive was held on July 23, 2004.

[6] Plaintiff and I are on the deed for our home at 3515 Majestic Oaks Drive.

[7] On June 25, 2005, Plaintiff, the children and I visited The Kensington School, a private preschool, for the purpose of assessing its program for our daughter Nicole.

[8] On June 28, 2004, Plaintiff and I paid a deposit, via check, in order to enroll our daughter Nicole in The Kensington School for the fall 2004 term.

[9] Nicole continues to attend and enjoy The Kensington School.

[10] Also on June 25, 2004, Plaintiff, the children and I visited Fox Ridge Elementary School to assess the school for our daughter Julia's enrollment in First Grade.

[11] Our daughter Julia continues to attend and enjoy Fox Ridge Elementary School.

[12] Plaintiff has taken steps to have her car registered in Illinois.

[13] Plaintiff has and maintains membership at a gym local to our house.

[14] Plaintiff regularly plays tennis with the neighbors, three of which she has become close friends with.

[15] Plaintiff enjoys regularly planned social events and continues to socialize with her Illinois friends.

[16] Plaintiff volunteers once a week at Julia['s] school, assisting Julia's teacher.

[17] Plaintiff has enrolled Julia in weekly gymnastics classes as well as weekly CCD classes.

[18] Plaintiff has become a member of St. John Newman Catholic Church in St. Charles.

[19] Plaintiff and I have invested heavily into our home at 3515 Majestic Oaks Drive; purchasing [more than] $10,000 of new furniture and appliances as well as extensive landscaping.

[20] As recently as 2004, Plaintiff ordered many return labels showing St. Charles, Illinois as our permanent address.

In this respect, we have granted leave to Linda to supplement the record on appeal with the September 26, 2005, transcript of proceedings in the Illinois Court on a pending application to appoint a guardian ad litem, along with the motion and reply. That transcript reflects some discussion on the home state issue, during the course of which the judge said that he was "not so sure Illinois [was] the home state" insofar as the six-month requirement. But he clearly did not decline jurisdiction, rather continued the guardian ad litem motion "to wait on the ruling of the New Jersey court . . . ." During the same proceeding, the judge entertained and decided various support and visitation issues.

(continued)

(continued)

11

A-2551-04T5F

October 25, 2005