KISHORE PASUMARTY v. DEEPA PASUMARTY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2113-05T12113-05T1

KISHORE PASUMARTY,

Plaintiff-Appellant,

v.

DEEPA PASUMARTY,

Defendant-Respondent.

 

Argued September 20, 2006 - Decided October 23, 2006

Before Judges Parrillo and Hoens.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-314-06F.

Edward J. O'Donnell argued the cause for appellant (Donahue, Hagan, Klein, Newsome & O'Donnell, attorneys; Mr. O'Donnell, of counsel and on the brief; David R. Tawil, on the brief).

Jan L. Bernstein argued the cause for respondent (Riker Danzig Scherer Hyland & Perretti, attorneys; Ms. Bernstein, of counsel; Erin Rantas, on the brief).

PER CURIAM

Plaintiff Kishore Pasumarty appeals from the October 21, 2005 order of the Chancery Division, Family Part, dismissing his complaint for divorce from defendant Deepa Pasumarty on jurisdictional grounds and from the December 16, 2005 order denying his motion for reconsideration. We affirm.

The facts that are relevant to the issues raised on appeal are undisputed. The parties were married in 1985. At the time, plaintiff was residing in Plainsboro and had a teaching position at Rutgers. Defendant was residing in India, where she was working in the banking industry, but she moved to New Jersey to live here with her new husband. The parties have one child, Devansh, who was born in 1993.

In 1996, defendant's employer, Banque Paribus, offered her a promotion which required her to relocate to Singapore and the parties and their child moved there as a result. Although defendant has changed employers on a number of occasions, she and Devansh became, and have remained, permanent residents of Singapore since that time. In 1999, plaintiff, who was and is also a permanent resident of Singapore, returned to the United States to explore employment opportunities. He resided for the following two years in California, while defendant and Devansh remained in Singapore. During that time, defendant traveled to California several times with Devansh to be with plaintiff and to help plaintiff to maintain his relationship with Devansh. Defendant concedes that she offered to leave her job in Singapore and to return to the United States to be with plaintiff and the record reflects that the parties investigated schools in California that might be suitable for their child. Defendant did not relocate to California, however, but returned to Singapore in response to a better employment opportunity, taking Devansh with her. In 2000, the parties sold the New Jersey residence that they owned, but in which they had not resided since 1996. Neither plaintiff nor defendant has owned property in New Jersey since the sale of that residence.

In May 2001, plaintiff left California and returned to Singapore, where he remained until June 2005. He then returned to the United States to attend to his father who was then gravely ill while defendant and Devansh remained in Singapore. At the time of plaintiff's return to this country, he was aware that defendant was planning to seek a divorce and had told her that he needed time to attend to his father's illness and to retain counsel in Singapore. On August 2, 2005, however, plaintiff filed his complaint for divorce in New Jersey, asserting that both he and defendant had a current residence and domicile in this State. On August 29, 2005, plaintiff amended his complaint for divorce to delete the earlier assertions that he was or had been a resident of the State and to assert only that jurisdiction over the matter arose from defendant's residence in this State. Defendant was served with the original complaint while she was visiting New Jersey and the amended complaint was served on the attorney she retained to represent her here. In the interim, defendant returned to Singapore and filed her petition for divorce in that country.

Defendant moved to dismiss the New Jersey complaint for want of jurisdiction. In particular, she pointed out that she neither owns nor rents a residence here, that the residence that the parties once jointly owned in New Jersey was sold in 2000, that she only visits the State for business or because of family obligations, that she has resided in Singapore since 1996 and obtained a permanent resident card there in 2004, that she has paid taxes to the government of Singapore since 2000 and that the couple's child is enrolled in school in Singapore. In response, plaintiff argued that the parties and their son are United States citizens, that they attended the Olympics in 2000 and 2004 to "cheer on America," that defendant is registered to vote in New Jersey and utilized that status to cast an absentee ballot in the 2004 Presidential election, that defendant uses a Plainsboro address for one of her credit cards, that the majority of the couple's assets are held in financial institutions in the tri-state area, and that defendant renewed her New Jersey driver's license in August 2005.

The Family Part judge, after entertaining oral arguments, granted defendant's motion for reasons she expressed on the record in open court on October 21, 2005. In relevant part, she found that the evidence presented by plaintiff was insufficient to demonstrate that defendant, having moved to Singapore and remained there for longer than nine years, intended to return to New Jersey. More specifically, she found that defendant's decision to retain her United States citizenship and to cast an absentee ballot in a Presidential election and her renewal of her New Jersey driver's license did not suffice to demonstrate an intention to return to the State as is required for jurisdiction.

On December 16, 2005, the judge considered and rejected plaintiff's arguments in support of his motion for reconsideration. She concluded that there was insufficient evidence in support of plaintiff's contention that defendant was a resident or a domiciliary of this State to require that a plenary hearing be convened and that there was insufficient evidence in the record to overcome the substantial evidence that defendant intended to remain in Singapore as she had for nearly ten years.

On appeal, plaintiff argues that the evidence demonstrating that New Jersey is defendant's domicile is so overwhelming that this court should direct that the complaint be reinstated. He further argues that the Family Part judge erred in failing to convene a plenary hearing and that the application of the laws of Singapore to him will be so unfair that defendant should be restrained from proceeding in that forum. We have considered these arguments in light of the record and the applicable legal precedents and have concluded that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We therefore affirm for substantially the reasons expressed by the Family Part judge in her oral opinions of October 21, 2005 and December 16, 2005. We add only the following brief observations.

First, we disagree with plaintiff's assertion that the facts overwhelmingly demonstrate that defendant is a bona fide New Jersey resident for purposes of jurisdiction over the parties' divorce, see N.J.S.A. 2A:34-10, or that the Family Part judge erred in her findings of fact. As we understand the record, the facts are not significantly in dispute and the only finding of fact that the judge made was her finding that defendant's use of a New Jersey address for the purpose of casting a ballot in the 2004 Presidential election and to renew her New Jersey driver's license, which she subsequently surrendered, did not evidence an intent to return here. We reject plaintiff's challenge to this factual finding, because it is supported by adequate, substantial and credible evidence. See Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

Second, to the extent that plaintiff attacks the judge's application of the law to the facts, we discern no error. Although we owe no special deference to the "trial court's interpretation of the law and the legal consequences that flow from established facts," see Manalapan Realty, L.P. v. Twp. Committee of Manalapan, 140 N.J. 366, 378 (1995), our analysis of the record leads us to the same conclusion as the one reached by the motion judge. Simply put, the evidence is overwhelming that defendant moved from this State nearly ten years before plaintiff filed for divorce, that she has made Singapore her permanent home and that she has no intention of returning here to live.

These facts are wholly in support of the motion judge's analysis on the question of jurisdiction. The court's jurisdiction over a complaint for divorce is derived from the applicable statute. See N.J.S.A. 2A:34-10. As our Supreme Court has held, the terms "bona fide resident" and "domicile" are "synonymous" for purposes of this statute. Voss v. Voss, 5 N.J. 402, 406-07 (1950); see Raybin v. Raybin, 179 N.J. Super. 121, 126-27 (App. Div. 1981). A person's domicile is defined as "the place where he has his true, fixed, permanent home and principal establishment, and to which whenever he is absent, he has the intention of returning, and from which he has no present intention of moving." In the Matter of Unanue, 255 N.J. Super. 362, 374 (Law Div. 1991). In order to determine domicile, three elements may be considered: 1) an actual and physical abode in the state; 2) an intention to make a home permanently or at least indefinitely in the state; and 3) an intention to abandon a previous domicile. Lipman v. Rutgers-State Univ. of N.J., 329 N.J. Super. 433, 444 (App. Div. 2000). Moreover, the intention to make a new home must be "unqualified [and] not conditioned on the happening of a future event." Ibid. (citation omitted). None of the facts on which plaintiff relies as support for his argument that defendant's domicile is in New Jersey are sufficient to meet this standard. There is simply no evidence in the record that defendant intends to return here in the sense required to establish domicile.

Third, we reject plaintiff's argument on appeal that the motion judge erred in failing to convene a plenary hearing on the question of defendant's domicile. As we have previously held, "[a] hearing is not required or warranted in every contested proceeding for the modification of a judgment or order." Murphy v. Murphy, 313 N.J. Super. 575, 580 (App. Div. 1998); see Tancredi v. Tancredi, 101 N.J. Super. 259, 262 (App. Div. 1968). Rather, a hearing is only required "where the affidavits show that there is a genuine issue as to a material fact, and that the trial judge determines that a plenary hearing would be helpful . . ." Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976); see Lepis v. Lepis, 83 N.J. 139, 159 (1980). In light of the fact that there were no material disputes of fact and no question that turned on an assessment of credibility as between the parties, the motion judge was not required to convene a plenary hearing.

Finally, we reject plaintiff's arguments that the motion judge "failed to acknowledge and consider defendant's forum shopping and the inequitable result which shall occur if the parties' divorce is processed under Singapore law." Plaintiff first attempted to raise the issue of the effect on him of the application of the substantive law of Singapore in the context of his motion for reconsideration. Apart from being an inappropriate assertion in the context of a reconsideration motion, see Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996), the effect on plaintiff of the law of another jurisdiction is not relevant to the issue of domicile. The result of that jurisdiction's application of its law cannot alter nor overcome the absence of jurisdiction here.

Nor are we persuaded that this court should restrain defendant from proceeding in Singapore. Although it is not entirely clear from the record that plaintiff's basis for seeking this relief on appeal was raised, as it should have been, in the proceedings before the motion judge, see Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234 (1973), we do not discern in this record any evidence that defendant has engaged in forum shopping by her decision to file for divorce in Singapore. The several decisions on which plaintiff relies, therefore, which rest on "the institution or prosecution of the suit in the foreign jurisdiction . . . in evasion of the laws of the common domicile," Ippolito v. Ippolito, 3 N.J. 561, 566 (1950); see Aieper v. Zieper, 14 N.J. 551, 567 (1954), are inapposite to our analysis.

Affirmed.

 

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A-2113-05T1

October 23, 2006