JENNIFER JONES,(f/k/a CAPORUSSO) v. JAMES CAPORUSSO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3787-04T23787-04T2

JENNIFER JONES,

(f/k/a CAPORUSSO),

Plaintiff-Respondent,

v.

JAMES F. CAPORUSSO,

Defendant-Appellant.

__________________________________

 

Argued March 1, 2006 - Decided April 4, 2006

Before Judges Wecker and Fuentes.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Morris County, FM-14-1366-99.

Dennis W. Winegar argued the cause for

appellant (Winegar, Wilhelm, Glynn &

Roemersma, attorneys; Steven J. Karch,

on the brief).

Stephanie Frangos Hagan argued the cause

for respondent (Donahue, Hagan, Klein,

Newsome & O'Donnell, attorneys; Ms. Hagan,

of counsel; Ms. Hagan, Eric S. Solotoff, and

Joseph J. Russell, on the brief).

PER CURIAM

Defendant, James F. Caporusso, appeals the February 18, 2005 Family Part order holding that New Jersey has continuing exclusive jurisdiction over issues of custody and visitation involving the parties' children. Defendant also appeals provisions of that order finding defendant in violation of litigant's rights and awarding plaintiff, Jennifer Jones (formerly Jennifer Caporusso), a counsel fee of $1,000.

Defendant presents these arguments on appeal:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION IN RETAINING JURISDICTION REGARDING SUBSEQUENT CHILD CUSTODY PROCEEDINGS BECAUSE THE COURT NO LONGER ENJOYED EXCLUSIVE AND CONTINUING JURISDICTION, SINCE THE CHILDREN NO LONGER HAVE A SIGNIFICANT CONNECTION WITH NEW JERSEY AND SUBSTANTIAL EVIDENCE IS NO LONGER AVAILABLE IN NEW JERSEY CONCERNING THE CHILDREN'S CARE, PROTECTION, TRAINING, AND PERSONAL RELATIONSHIPS.

POINT II

THE TRIAL COURT ERRED IN ORDERING THAT NEW JERSEY RETAINED JURISDICTION PURSUANT TO THE UCCJEA BECAUSE PENNSYLVANIA, AND NOT NEW JERSEY, IS THE MORE CONVENIENT FORUM TO ADJUDICATE SUCH ISSUES.

POINT III

THE TRIAL COURT'S ORDER RETAINING JURISDICTION SHOULD BE VACATED BECAUSE THE COURT WAS REQUIRED TO HAVE STAYED ITS PROCEEDINGS ON FEBRUARY 18, 2005 AND SHOULD HAVE COMMUNICATED AND RECORDED ITS CONVERSATION WITH THE PENNSYLVANIA COURT PRIOR TO DECIDING WHETHER NEW JERSEY RETAINED JURISDICTION IN ACCORDANCE WITH THE UCCJEA.

POINT IV

THE TRIAL COURT ERRED IN FINDING THE DEFENDANT IN VIOLATION OF LITIGANT'S RIGHTS BECAUSE THE DEFENDANT SOUGHT ADDITIONAL TIME TO RESPOND [sic] TO THE SUBSTANTIVE ISSUES RAISED BY THE PLAINTIFF, AS THE ISSUE OF WHETHER PENNSYLVANIA OR NEW JERSEY HAD JURISDICTION HAD NOT BEEN DETERMINED.

POINT V

THE TRIAL COURT ERRED IN AWARDING THE PLAINTIFF ATTORNEY'S FEES IN THE AMOUNT OF $1,000 BECAUSE THE DEFENDANT WAS NOT PERMITTED TO BE HEARD ON THE SUBSTANTIVE ISSUES PERTAINING TO CUSTODY AND PARENTING TIME.

We have carefully reviewed the record in light of defendant's contentions and now affirm.

The parties were married in New Jersey on June 17, 1995. Their son, Zachary, was born in New Jersey on February 27, 1997. Their daughter, Isabella, was born in New Jersey on December 4, 1998. Plaintiff filed a divorce complaint in Morris County in 1999. The parties entered into a Property Settlement Agreement on June 10, 2002, which was incorporated in a June 24, 2002 Amended Judgment of Divorce entered by the Family Part in Morris County. Defendant had already moved to Pennsylvania when the parties entered into the Agreement. The Agreement included detailed provisions respecting custody as well as visitation between the parties and their children.

More specifically, the Agreement provided that the parties would have joint legal custody, with defendant as the primary residential parent during the school year and plaintiff as the primary residential parent during the summer school vacation. During the school year, the Agreement provides for the children to attend school in Pennsylvania. They would spend Sunday through Thursday with defendant in Pennsylvania and Friday and Saturday (and the third night when there is a three-day holiday weekend) with plaintiff in West Orange, New Jersey. There are detailed provisions in the Agreement allowing for the children to spend school holidays with their mother in New Jersey. During the summers, the Agreement provides for the children to spend additional nights with her in New Jersey.

Since entry of the divorce judgment, defendant has repeatedly and unsuccessfully attempted to persuade Pennsylvania courts to exercise jurisdiction and New Jersey courts to decline jurisdiction in applications to modify the New Jersey custody and visitation order. The record does not demonstrate any significant change in the underlying facts or circumstances since those attempts.

This is the post-judgment procedural history. On August 12, 2003, plaintiff filed a motion in Morris County seeking to enforce her rights under the Agreement. On August 28, 2003, defendant filed a cross-motion requesting that New Jersey transfer jurisdiction to the Court of Common Pleas in Monroe County, Pennsylvania. On September 19, 2003, Judge Stephan C. Hansbury, denied defendant's motion and entered an order retaining jurisdiction in New Jersey. The order also included various provisions concerning the parties' adherence to the terms of the Agreement. Defendant did not appeal that order.

In March 2004, defendant filed an application in Monroe County, Pennsylvania, seeking child support from plaintiff and other relief. Under the Revised Uniform Interstate Family Support Act, N.J.S.A. 2A:4-30.24 to -30.40, the matter was transferred to Essex County, New Jersey, where plaintiff lives, and scheduled before a hearing officer on July 2, 2004. The hearing officer dismissed defendant's complaint on the ground that an application for modification of the child support provision in the judgment belonged in Morris County under the original FM-14-1366-99 docket.

On December 2, 2004, defendant filed a complaint for custody in the Court of Common Pleas, Monroe County, Pennsylvania. On January 4, 2005, plaintiff filed a motion and supporting certification in Morris County requesting that New Jersey retain jurisdiction, and seeking enforcement of litigant's rights. On January 13, 2005, defendant filed a cross-motion and letter brief in Morris County, again requesting that New Jersey transfer jurisdiction to the Court of Common Pleas in Monroe County, Pennsylvania. He did not respond to plaintiff's other applications. Plaintiff filed a reply certification on January 26, 2005.

On February 18, 2005, Judge Hansbury entered separate orders denying defendant's motion to transfer jurisdiction and granting plaintiff's motion to retain jurisdiction in New Jersey. Judge Hansbury also granted plaintiff's motion for enforcement of litigant's rights and assessed counsel fees against defendant. On April 1, 2005, defendant filed his Notice of Appeal from Judge Hansbury's February 18, 2005 order denying defendant's motion to transfer jurisdiction to Pennsylvania. On May 26, 2005, Judge Margherita Patti Worthington in the Court of Common Pleas, Monroe County, Pennsylvania, entered an order declining jurisdiction pending the outcome of this appeal.

It is beyond reasonable dispute that New Jersey has continuing, exclusive jurisdiction over issues of custody and visitation in this case under the Uniform Child Custody and Jurisdiction Enforcement Act, N.J.S.A. 2A:34-53 to -95 (the UCCJEA). The UCCJEA was enacted in New Jersey on September 14, 2004, to be effective ninety days thereafter, that is, on December 13, 2004. See L. 2004, c. 147. The UCCJEA replaced the Uniform Child Custody Jurisdiction Act, N.J.S.A. 2A:34-28 to -52 (the UCCJA), and unquestionably governs postjudgment proceedings in this matter. Pennsylvania enacted the UCCJEA on June 15, 2004, effective sixty days later, that is, on August 14, 2004. See 23 Pa. Cons. Stat. 5401-5482; Act 2004-39 (H.B. 2083), 3.

Specifically, N.J.S.A. 2A:34-66a provides that a New Jersey court that has made an initial custody determination continues to have "exclusive" jurisdiction until:

(1) a court of this State determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this State and that substantial evidence is no longer available in this State concerning the child's care, protection, training, and personal relationships; or

(2) a court of this State or a court of another state determines that neither the child, nor a parent, nor any person acting as a parent presently resides in this State.

None of those conditions exists here, and New Jersey continues to have exclusive jurisdiction. Judge Hansbury explicitly found that the children and their mother have "a significant connection" with New Jersey and that "substantial evidence" is available here. The record supports those findings.

The underlying rationale of both the UCCJEA and its predecessor, the UCCJA, is to avoid duplicative proceedings and potentially conflicting orders where more than one jurisdiction has contacts with a child or one of the child's parents. See N.J.S.A. 2A:34-53 (Senate Judiciary Committee Statement to Senate, No. 150 - L. 2004, c. 147). With the adoption of the UCCJA by every state, the intended symmetry (and reciprocity) was achieved. The UCCJEA subsequently was proposed and adopted by the states to replace the UCCJA, in part to conform with the Federal Parental Kidnapping Prevention Act, 28 U.S.C.S. 1738A. Ibid. The Committee Statement describes the UCCJEA provision for continuing exclusive jurisdiction:

This [bill] provides that a state which makes the initial custody determination has continuing exclusive jurisdiction if a party to the original custody determination remains in that state. A state with continuing exclusive jurisdiction is the only state which can modify a custody order. If it determines that another state has a more significant connection to the child, it may relinquish its authority.

[Ibid. (Emphasis added).]

The UCCJEA permits a state which has become the child's "home state" to modify the original order of another state, but only if a court in the state of original jurisdiction determines that it no longer has continuing exclusive jurisdiction or that another jurisdiction would "be a more convenient forum," see N.J.S.A. 2A:34-67a and 23 Pa. Cons. Stat. 5423(1); or when neither the child nor a parent continues to reside in the original jurisdiction. See N.J.S.A. 2A:34-67b and 23 Pa. Cons. Stat. 5423(2).

[U]nder the UCCJEA, the Family Part has no jurisdiction to modify the custody order of another state unless New Jersey is the home state of the child, N.J.S.A. 2A:34-65a(1), or a court of another state does not have home-state jurisdiction, or a court of the child's home state has declined to exercise jurisdiction on the ground that New Jersey is the more appropriate forum under N.J.S.A. 2A:34-71 or N.J.S.A. 2A:34-72, and the child and the child's parents, or the child and at least one parent have a "significant connection" with New Jersey other than mere physical presence, and "substantial evidence" is available in New Jersey concerning the child's care, protection, training and personal relationships. Stated differently, under the UCCJEA, a court determining jurisdiction does not reach the "significant connection" and "substantial evidence" tests unless the court of the other state does not have home-state jurisdiction or having home-state jurisdiction has declined to exercise custody jurisdiction because it has determined that New Jersey is the more appropriate forum.

[Poluhovich v. Pellerano, 373 N.J. Super. 319, 362 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005).]

Our explanation in Poluhovich that the UCCJEA limits New Jersey's jurisdiction to modify another state's custody order demonstrates that Pennsylvania does not have modification jurisdiction under the UCCJEA in this case, and defendant's reliance on Poluhovich is misplaced.

Defendant argues that the motion judge should have found that New Jersey was an inconvenient forum, citing N.J.S.A. 2A:34-71a. That provision is discretionary, allowing a judge to "decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum." See N.J.S.A. 2A:34-71a (emphasis added). We find no abuse of discretion in Judge Hansbury's decision that New Jersey is not an inconvenient forum, and that the New Jersey court will continue to exercise its jurisdiction.

Defendant also invokes N.J.S.A. 2A:34-70, contending that he "commenced" a proceeding in Pennsylvania that required the judge in New Jersey to defer to or consult with the Pennsylvania judge. Defendant has misread the statute, which is premised upon another state "having jurisdiction substantially in conformity with [the UCCJEA]." N.J.S.A. 2A:34-70a. As noted above, Pennsylvania could not have had jurisdiction under the UCCJEA, because New Jersey had continuing, exclusive jurisdiction which it had not declined to exercise.

Defendant did not submit any evidence to counter plaintiff's very specific allegations respecting defendant's violations of existing visitation provisions, including (1) unilateral changes in the dates and times of parental exchanges; (2) the unilateral engagement of a counselor for Zachary; and (3) interference with plaintiff's telephone access to the children when they are at defendant's home. Defendant chose not to respond, and after losing his jurisdictional argument, he sought an adjournment of plaintiff's motion to enforce her rights. As the judge determined, defendant had the opportunity to respond to plaintiff's motion in its entirety and chose not to do so. Denying defendant's belated request for an adjournment was within the judge's discretion and was not unreasonable. There is no basis for our interference with the order enforcing plaintiff's rights.

Finally, the partial counsel fee award in favor of plaintiff was explicitly granted with respect to the violation of litigant's rights, not the jurisdictional issue. The award is modest by any standard and totally supportable under the circumstances. See Williams v. Williams, 59 N.J. 229 (1971).

Affirmed.

 

The record does not reflect whether defendant's application to modify child support was refiled in Morris County or otherwise addressed.

On February 22, 2005, Judge Barbara Zucker-Zarett entered an order transferring the matter from Morris to Essex County, New Jersey, based upon plaintiff's relocation to Essex County after the entry of the divorce judgment.

Pennsylvania's version of the UCCJEA includes virtually the same provision. See 23 Pa. Cons. Stat. 5422(a).

(continued)

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A-3787-04T2

April 4, 2006