WILLIE DAWKINS v. SIU-YIN WONG

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3053-05T33053-05T3

WILLIE DAWKINS,

Plaintiff-Appellant,

v.

SIU-YIN WONG,

Defendant-Respondent.

____________________________

 

Submitted November 27, 2006- Decided December 22, 2006

Before Judges Seltzer and C.L. Miniman.

On appeal from the Superior Court of

New Jersey, Chancery Division, Family

Part, Essex County, FM-07-2506-05.

De Meo & LaVista, attorneys for appellant

(Alfonse A. De Meo, on the brief).

Respondent did not file a brief.

PER CURIAM

Plaintiff, Willie Dawkins, appeals from a January 6, 2006, order denying his motion for reconsideration of a judgment, entered November 15, 2005, that divorced the parties but refused to decide plaintiff's request for spousal support and equitable distribution on the grounds that the trial court lacked personal jurisdiction over defendant. The January 6, 2006, order also denied a request for a plenary hearing with respect to the jurisdictional issue.

On appeal, plaintiff asserts that: (1) the court had jurisdiction to decide the financial issues implicated by the divorce; (2) the judge erred in refusing plaintiff's motion to withdraw his complaint; (3) the judge improperly considered

ex parte submissions by the defendant; and (4) the judge incorrectly allowed defendant to offer testimony "without having formally appeared or submitted to the court's jurisdiction." We conclude that only the second assertion has merit. Accordingly, we affirm the court's determination that it lacked jurisdiction to decide the financial claims presented by plaintiff, but reverse and remand for the entry of an order vacating the judgment of divorce and dismissing the complaint.

The facts necessary to decide this appeal are uncontested. On May 25, 2005, plaintiff filed a complaint for divorce. The complaint alleged a marriage to defendant on February 12, 1992; a residence for plaintiff at 48R Green Street, Newark, New Jersey; and a residence for defendant at 1681 Westwood Boulevard, Bayshore, New York. The complaint also alleged a separation in "approximately March, 2004," occasioned by acts of extreme cruelty committed by defendant against plaintiff. Plaintiff sought a termination of the marriage, "permanent spousal support," equitable distribution, and fees. Plaintiff also sought "liberal and reasonable visitation with" the parties' two children, whose primary custodial residence, plaintiff admitted, should be with defendant.

Defendant did not answer the complaint, and, on July 28, 2005, plaintiff filed a motion for pendente lite relief. Apparently in response to that motion, defendant wrote to the motion judge asserting that she and her children had resided in New York for "over 10 years." She enclosed documents indicating that she had "a pending court case in Central Islip, NY, family court." That letter, although dated August 19, 2005, was received by the judge on August 16, 2005. It does not indicate that a copy was provided to plaintiff. On August 19, 2005, plaintiff's motion for pendente lite relief was denied. The order makes reference to "the question of jurisdiction." On October 5, 2005, plaintiff requested the entry of default and served a notice of his application for equitable distribution and other financial relief in accordance with R. 5:5-2(e).

Without filing any other documents, defendant appeared at the hearing on plaintiff's application. The judge recognized the existence of an issue as to jurisdiction to decide the financial aspects of the litigation. Plaintiff's counsel represented, "that from . . . March of 2004 through January of 2005, they also maintained a residence here in the city of -- of Newark, at 48R Green Street, which was paid for by Ms. Wong, and which both parties used as a part time residence in the process of looking for property in New Jersey."

Having taken this representation, the judge examined defendant under oath. She represented to him that a domestic violence complaint in New York had been resolved the prior day with the consent of plaintiff, who was represented by counsel. Defendant admitted that she paid the rent at 48 Green Street because, after she filed a divorce complaint in New York, some time in 2003, defendant "said he'll move out but he need help, because he need help to move into the residence while we getting divorce."

She continued:

so I pay rent for a couple months. And I told him -- and then eventually he got a job, he has a roommate, so I said okay, I'm stopping the rent, because [you are] able to move on your own. And he move everything back -- he move everything to New Jersey. So after that I just take the kids to come here to see him on the weekend while going to work in Manhasset, New York or Queens, New York.

Plaintiff was then sworn, and the following colloquy took place between the court and plaintiff:

Q. All right. Sir, you heard everything that your wife said, do you dispute it?

A. Yes.

Q. All right. You['re] indicating that she and the children lived at 48 Green Street?

A. She always had --

Q. Did the children and --

A. No.

Q. -- the wife live at 48 Green Street?

A. No.

Q. They never lived at 48 Green Street?

A. No.

THE COURT: All right, jurisdiction New York.

The judge then expressed an initial inclination to dismiss the complaint until defendant indicated that she wanted to get a divorce. The judge replied: "You want me to let him get a divorce? You want -- all right, I'll [allow] you to get the divorce." Plaintiff's counsel responded: "Your Honor, if you're denying jurisdiction with regard to equitable distribution, I don't believe that we can proceed . . . ." The judge interrupted and told counsel, "Well, I'm going to allow it to proceed, and I'll ask the questions." Counsel then conferred with plaintiff and moved to dismiss the complaint because he believed "my client would be precluded from pursuing his equitable distribution once a judgment is entered here and jurisdiction . . ." The judge interrupted again, rejecting that claim: "It's not true, that's not the law. It's not the law in New Jersey, and it's not the law in New York." The motion to dismiss was denied, and the judge proceeded to question plaintiff, establishing a cause of action for divorce.

The judge then ruled:

This court does not have jurisdiction with regard to the family uniform child custody Jurisdiction Act, the children reside in New York, they've always lived in New York. The Court [has] no jurisdiction over the children. There is a default the -- by letter. Ms. Wong has indicated she would make her appearance for purposes of certain issues related to this marriage, indicating that she does not submit to this jurisdiction with regard to issues relating to the children, and/or equitable distribution. The assets appear to be all within the jurisdiction of the Family Court of the State of . . . New York. I believe you live in the County of Suffolk, right.

This court will indicate that Mr. Dawkins is not precluded from seeking equitable distribution. In fact, under the Constitution he could take his complaint for a divorce -- judgment of divorce, and register it in the State of New York just like any other state with a judgment for purposes of issues related to the marriage, including seeking visitation, parenting time, and/or issues related to assets that were acquired during the marriage. He's not foreclosed from filing his judgement of divorce in New York, and registering it under the full faith and credit of the Constitution. So, therefore, the Court finds that he is certainly not prejudiced with regard to his getting a divorce today. In fact, I find the plaintiff to be credible in that she filed for a judgment of divorce, and that the defendant, for whatever purposes failed to appear in . . . the New York proceeding where he could have had all these issues litigated, including filing a counterclaim in the State of . . . New York.

Therefore, the Court grants Mr. Dawkins his judgment of divorce, and does not grant any other relief sought by the [plaintiff] based on no jurisdiction over the defendant and the family.

Plaintiff then moved for reconsideration, submitting an affidavit dated December 2, 2005. In that affidavit, he alleged:

In early 2004, we decided as a couple to move to New Jersey. Even though we wanted to buy a residence in New Jersey eventually, we elected to rent first to determine where we would like to buy. From February, 2004 through January, 2005 the Defendant and I resided in Newark, New Jersey. We rented a property at 48R Green Street, Newark, New Jersey. Both the Defendant and I lived there, with our children, for the next several months. I want to make this clear for the court. The Defendant paid the rent and utilities, slept in the premises, and conducted her everyday activities at this residence. Our children slept at this residence.

The Defendant stopped paying the rent and utilities in January, 2005. From that point forward, she returned to New York with the children and I stayed in New Jersey. She abandoned me in New Jersey and cut off my support. She fled New Jersey and returned to New York.

That motion for reconsideration was denied by the order which is the subject of this appeal.

The court's jurisdiction to alter the marital status of the parties is conferred when either is a bona fide resident of the state. N.J.S.A. 2A:34-9(a); Drobney v. Drobney, 146 N.J. Super. 317, 323 (App. Div. 1977) (citing Meeker v. Meeker, 52 N.J. 59 (1968); Foris v. Foris, 103 N.J. Super. 316 (Ch. Div. 1968)). Obligations flowing from the marriage, such as support and alimony, require personal jurisdiction. N.J.S.A. 2A:34-8; Drobney supra, 146 N.J. Super. at 323.

Personal jurisdiction requires "certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95, 102 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 343, 85

L. Ed. 278, 283 (1940)). Said another way, personal jurisdiction exists when "'the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.'" Lebel v. Everglades Marina, Inc., 115 N.J. 317, 324 (1989) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 567, 62 L. Ed. 2d 490, 501 (1980)). Given these considerations, we conclude the court was without jurisdiction to resolve the financial issues. That determination is a legal one and is to be made by us de novo on the established facts. Manalapan Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 378 (1995).

The judge took testimony with respect to defendant's contacts with New Jersey. He accepted defendant's testimony that neither defendant nor her children ever lived with plaintiff at his New Jersey address, and by inference, anywhere else in New Jersey. Defendant's testimony that her contact was limited to providing rent money to defendant, in return for his agreement to remove himself from her New York residence, and her occasional delivery of the minor children to their father for weekend visitation cannot constitute the type of minimal contacts that make it fair to require her to defend against claims for equitable distribution and spousal support in the New Jersey courts. She could not reasonably have been expected to be "haled" into court to defend against such claims by virtue of either payments made in New York to assist her husband in return for his agreement to leave the marital residence or delivering his children to him for several weekends. See Katz v. Katz, 310 N.J. Super. 25, 31-32 (App. Div. 1998) (brief returns to New Jersey over a course of years does not confer personal jurisdiction).

Nor was the judge mistaken in denying reconsideration based upon plaintiff's December 2, 2005, certification. Plaintiff's testimony before the court was clear that neither defendant nor the children lived at the Green Street address. The court has the right to disregard "an offsetting affidavit that is submitted . . . when the affidavit contradicts the affiant's prior . . . testimony" without explanation. Shelcusky v. Garjulio, 172 N.J. 185, 194 (2002). In this case the affidavit not only contradicted plaintiff's testimony, but his complaint as well. The affidavit asserted cohabitation in New Jersey from February 2004 to January 2005. The complaint, however, asserts a separation in March of 2004, precluding cohabitation for more than one month.

Plaintiff's brief does not discuss the provision in the January 6, 2006, order denying his request for a plenary hearing on the jurisdictional issue but, given the court's solicitation of testimony from both parties with respect to that question, the claim has no merit.

We similarly reject plaintiff's arguments that the court considered ex parte submissions by the defendant and improperly allowed defendant to testify without submitting to the court's jurisdiction or having formally appeared. Although the court did receive a letter from defendant, its decision did not rely upon any undisclosed documents, its decision resulted from the testimony elicited by defendant on her claim that the court lacked jurisdiction to award equitable distribution. Defendant had a right to appear to contest jurisdiction without submitting generally to the court's jurisdiction. See Hupp v. Accessory Distribs, Inc., 193 N.J. Super. 701, 708-09 (App. Div. 1984);

R. 4:6-2; see also Byrnes v. Landrau, 326 N.J. Super. 187, 192-93 (App. Div. 1999), certif. denied, 163 N.J. 78 (2000). We see no error in the judge permitting a motion to dismiss the claims for financial relief to be made orally at the time of the default hearing. R. 1:1-2 requires the Rules to be construed, relaxed, or dispensed with so as "to secure a just determination, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay." The motion to dismiss for lack of personal jurisdiction, authorized by R. 4:6-2(b), may, in the judge's discretion, be raised orally. R. 1:6-2(a). The judge's resolution of this procedural issue was both within his discretion and appropriate.

Finally, plaintiff argues that the court should have granted his request to dismiss the complaint. R. 4:37-1(a) permits the voluntary withdrawal of a complaint without court order prior to the filing of an answer or a motion for summary judgment. The defense of lack of personal jurisdiction may be raised by answer or by motion before the filing of an answer. R. 4:6-2. We perceive no reason why the filing of a motion to dismiss for lack of personal jurisdiction should not, for these purposes, be deemed the substantive equivalent of an answer, precluding the voluntary dismissal of the complaint without court order. Even if the equivalency is not assumed, "[i]t is clearly too late to seek to voluntarily dismiss a matter without court order after the court has taken the merits under advisement." Pressler, Current N.J. Court Rules, comment 1.1 on R. 4:37-1 (2007) (citing In re Estate of Horowitz, 220

N.J. Super. 300, 302 (Law Div. 1987)).

Here, the court had determined the failure to consider financial claims when granting the divorce would not impact plaintiff's right to present those financial claims in New York. The judge was correct. N.Y. Dom. Rel. Law 236(B)(2) (Consol. 2006) permits a proceeding "to obtain maintenance or a distribution of marital property following a foreign judgment of divorce[.]" See also Peterson v. Goldberg, 585 N.Y.S.2d 439, 180 A.D.2d 260, 262-63 (App. Div. 1992), appeal dismissed without opinion, 81 N.Y.2d 835 (1993).

Nevertheless, we find the judge incorrectly refused to dismiss the complaint. Plaintiff clearly expressed his wish not to pursue the divorce for fear of the effect on his financial claims. That request should have been honored. Although plaintiff could have pursued those claims in New York, we do not know what effect the New Jersey action might have had, for example, on the valuation date that New York would use for equitable distribution. A host of similarly unclear questions can be imagined. It was a mistaken exercise of the judge's discretion to compel the divorce when plaintiff was unsure of the effect of the ultimate judgment.

Moreover, the judge acceded to the request of defendant in moving forward. Defendant, however, had no right to be heard with respect to anything other than the jurisdiction of the court to decide financial issues. In the absence of defendant's request, the judge had indicated that he would have dismissed the complaint. Defendant cannot benefit from a decision reached only as the result of her improper request. Finally, the divorce was obtained on evidence compelled by the judge's questioning. Had plaintiff simply left the courtroom after the decision on jurisdiction, the complaint would have been dismissed for lack of prosecution. Similarly, had plaintiff simply refused to answer the judge's questions, dismissal would have been the appropriate remedy. The judge improperly utilized his authority to compel plaintiff's testimony in light of plaintiff's expressed desire not to proceed.

We therefore conclude that the complaint should have been dismissed. In the judge's discretion, that dismissal may be subject to "such terms and conditions as the court deems appropriate." R. 4:37-1(b).

 
Reversed and remanded for the entry of an order pursuant to this opinion.

It is not clear from this record if defendant paid the rent directly to the landlord or to plaintiff. It is also not clear if the apartment was rented in the name of plaintiff or by defendant.

In certain cases, it is sufficient to have jurisdiction over the property or some of the property of the supporting spouse. Drobney, supra, 146 N.J. Super. at 323.

Plaintiff's argument that N.J.S.A. 2A:34-24.1 provides authority for "the entry of a spousal support award even when in personam jurisdiction has not been obtained over the other party" is also without merit. The statute permits the award of support to a party over whom jurisdiction has not been obtained and nothing more. It was intended to prevent an argument that an ex parte divorce without in personam jurisdiction precludes an award of support against the plaintiff securing the divorce. Pezziro v. Pezziro, 83 N.J. Super. 578, 524-25 (Ch. Div. 1964).

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A-3053-05T3

December 22, 2006