CHERYL L. EASTERLIN v. CESAR W. MUJICA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6108-04T26108-04T2

CHERYL L. EASTERLIN,

Plaintiff-Appellant,

v.

CESAR W. MUJICA,

Defendant-Respondent.

________________________________________________________________

 

Submitted September 26, 2006 - Decided October 23, 2006

Before Judges Lisa and Grall.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FD-12-441-05.

Dennis J. Cummins, Jr., attorney for appellant.

Baer, Arbeiter, Ploshnick, Tanenbaum and Weiss, attorneys for respondent (Grissele Camacho-Pagan, on the brief).

PER CURIAM

Plaintiff, Cheryl L. Easterlin, appeals from a May 4, 2005 order denying her motion to enforce and modify a child support order entered against her ex-husband, defendant, Cesar W. Mujica, on September 6, 1996 by the Superior Court of Arizona. The trial judge determined that under the provisions of the Uniform Interstate Family Support Act (UIFSA), N.J.S.A. 2A:4-30.65 to -30.123, the New Jersey Superior Court lacked subject matter jurisdiction to modify the Arizona order. The judge further held that because plaintiff failed to register the order in New Jersey, the court would not consider any enforcement action. Because of those determinations, the judge found it unnecessary to determine whether the New Jersey Superior Court had personal jurisdiction over defendant.

We are satisfied that the trial judge correctly applied the law in rendering her decisions. Accordingly, we affirm the order of May 4, 2005, as well as the order of June 10, 2005 denying plaintiff's reconsideration motion. However, our affirmance is without prejudice to plaintiff's right to initiate new proceedings for modification and enforcement under the provisions of UIFSA.

The parties married in Utah in 1985. Their daughter, Krystal, was born on November 27, 1985. On September 28, 1988, the parties, then residents of Arizona, were divorced in the Arizona Superior Court. Defendant was ordered to pay child support for Krystal as part of the divorce judgment. In December 1988, the parties reunited, but never remarried. They lived together in Arizona until July 1994. They had two sons during this time, Anthony, born January 10, 1990, and Marcus, born October 22, 1992.

After the parties separated, plaintiff was designated the custodial parent of all three children, and on March 23, 1995, the Arizona court modified the divorce decree by acknowledging defendant's paternity of Anthony and Marcus and setting child support at $1,200 per month. The children were covered under defendant's health insurance plan, and the order provided that each of the parties would be responsible for one-half of medical and dental expenses for the children not covered by insurance.

In August 1995, plaintiff and the three children moved to New Jersey. Shortly afterwards, defendant was transferred by his employer to Japan. He has lived there ever since. He later married a Japanese citizen. In February 2004, he and his wife had twins.

In July 1996, the three children moved to Arizona and took up residence with their paternal grandparents. Plaintiff remained in New Jersey. A consent order was entered in the Arizona Superior Court, which provided that defendant would be obligated to pay zero dollars per month in child support, but would be responsible for providing medical insurance for the children and paying 100% of any uninsured medical expenses. The order recited that under the Arizona child support guidelines, defendant's monthly child support obligation would have been $898.50, but a deviation was authorized pursuant to the parties' agreement. That agreement, appended to the order, provided that the parties "have mutually agreed to temporarily stop child support payments, from Obligor to Obligee, with [defendant's] pay period ending July 27, 1996 and continuing for one (1) year, at which time support payments [would] be reevaluated and resubmitted to [the] County of Pima according to current child support guidelines." The agreement was signed by plaintiff and notarized in New Jersey on July 29, 1996. It was signed by defendant and notarized in Arizona on August 5, 1996.

In November 1996, Krystal took up residence with family friends, the Johnsons, in Tuscon, Arizona. Anthony and Marcus also moved in with the Johnsons in July 1997. Although we have not been furnished with a copy of it, there appears to be no dispute that the Arizona court entered an order awarding custody of all three children to Mrs. Johnson. Towards the end of 1998, Anthony returned to live with plaintiff in New Jersey, and in the summer of 1999, the other two children also returned to New Jersey to live with plaintiff.

The obvious purpose of the September 6, 1996 order was to relieve defendant of a monthly child support obligation, while the children were not living with plaintiff, but require defendant to continue to provide medical insurance for the children and all uninsured medical expenses. During the time that the children were not living with either of their parents, defendant voluntarily made support payments to his parents, while they were living there and to the Johnsons, while the children were in their custody. For a time, he was paying a total of $1,600 per month.

When the children were split up, he was dividing that sum in proportion to the households in which the children were living. When all three children resumed living with plaintiff in New Jersey, defendant began paying plaintiff $1,600 per month. This continued for several years. In October 2003, Krystal moved back to Arizona with the Johnsons. Continuing with the proportional allocation of child support, defendant then began sending plaintiff $1,200 per month, and he paid $400 per month to Mrs. Johnson. The latter payment continued until November 2003, when Krystal was emancipated.

The dispute now before us centers over defendant's support obligation for Anthony and Marcus. Plaintiff contends that for several years before the filing of her motion, defendant failed to provide the required health insurance and reimburse plaintiff for any uninsured medical expenses. As a result, she purchased health insurance at a considerable expense and paid unreimbursed medical costs. Defendant does not dispute that he ceased providing health insurance, which he attributes to his current employment with a Japanese company that does not provide medical coverage in the United States. Nevertheless, defendant has been paying plaintiff $800 per month, which defendant points out is only slightly below the amount calculated in 1996 pursuant to the Arizona child support guidelines.

Plaintiff contends that defendant's earnings are now substantially higher than they were in 1996, and he should be contributing substantially more to the support of his two minor children. Further, plaintiff seeks reimbursement for expenditures on health insurance and medical costs for the children.

We mention briefly events that occurred between November 2003 and August 2004. Anthony and Marcus came under the care of the New Jersey Division of Youth and Family Services (DYFS), and neglect on plaintiff's part was substantiated. Indeed, she was criminally charged with endangering the welfare of the children and pled guilty to the offense. During the DYFS proceedings, defendant came to New Jersey and sought to obtain custody of the children for himself and his parents. The children were turned over to his parents who took them to Arizona to live with them for some time. By the summer of 2004, the children were returned to plaintiff's custody in New Jersey and the neglect complaint was dismissed.

On February 1, 2005, plaintiff, with the assistance of counsel, filed the motion that is the subject of this appeal. Before engaging counsel, plaintiff attempted on her own to have the 1995 Arizona order updated and enforced. She went to the Middlesex County Probation Department, completed some forms, and furnished some information. She contends she was informed that New Jersey would seek to have the order enforced by Arizona, but the State of Arizona said the case was closed because plaintiff now lived in New Jersey. Plaintiff believed she was registering the Arizona order in New Jersey.

In opposition to plaintiff's motion, defendant's attorney filed a special appearance to dispute jurisdiction. After hearing oral argument, the judge denied the motion in its entirety, concluding that under UIFSA, New Jersey lacked subject matter jurisdiction to modify the Arizona order and, because plaintiff did not properly register the order, no consideration would be given for enforcement purposes. After plaintiff's reconsideration motion was denied on June 10, 2005, plaintiff filed this appeal on July 22, 2005.

On July 25, 2005, the trial judge placed on the record a supplemental statement of reasons for denial of the reconsideration motion. In doing so, the judge set forth in detail her reasons for finding a lack of subject matter jurisdiction to modify the Arizona order. However, she found that defendant, according to the terms of the 1996 Arizona order, was responsible for medical insurance and medical expenses and therefore granted the portion of plaintiff's motion seeking such relief. The judge issued an amended order on August 1, 2005 requiring defendant to provide medical insurance and to reimburse plaintiff for all medical expenses she paid for the children.

Upon being informed by defense counsel that the appeal was filed before the judge's amended order, thereby depriving the trial court of jurisdiction, see R. 2:9-1(a), the judge entered an order on August 19, 2005 vacating the amended order. Plaintiff moved before this court for a limited remand to allow the trial judge to re-enter her amended order. On December 15, 2005, we denied the motion for a limited remand.

By requiring all fifty states to enact UIFSA, Congress intended to create uniformity in enforcing and modifying support orders and "to do so in a way that avoids conflicting orders issued by courts of different states." Philipp v. Stahl, 344 N.J. Super. 262, 277 (App. Div. 2001) (Wecker, J., dissenting), rev'd on dissent, 172 N.J. 293 (2002). Generally, UIFSA resolves jurisdictional disputes by deferring to the state with "continuing, exclusive jurisdiction." N.J.S.A. 2A:4-30.72. "However, '[i]f all parties and the child reside elsewhere, the issuing state loses its continuing, exclusive jurisdiction--which in practical terms means the issuing tribunal loses its authority to modify its order.'" Youssefi v. Youssefi, 328 N.J. Super. 12, 21 (App. Div. 2000) (citing John J. Sampson, Uniform Interstate Family Support Act, 27 Fam. L.Q. 93, 120-21 (1993)). This allows another state to obtain modification jurisdiction if the requirements of N.J.S.A. 2A:4-30.112 and -30.114 are met.

N.J.S.A. 2A:4-30.112 establishes the requirement for registering an out-of-state order before a court can exercise modification jurisdiction: "A party . . . seeking to modify, or to modify and enforce, a child support order issued in another state shall register that order in this State in the same manner provided in sections 40 through 43 of this act if the order has not been registered." The Prefatory Note to the 1996 version of UIFSA emphasizes the importance of registration before a court can enforce or modify an order. The note indicates that "[a]ll judicial . . . activity must begin with the registration of the existing support order in the responding state . . . ." 9 U.L.A. 288 (2005). After registration occurs, "the role of the responding state is limited to enforcing that order except in the very limited circumstances under which modification is permitted . . . ." Ibid. The intent behind establishing these "bright line" rules is to "eliminate multiple support orders to the maximum extent possible consistent with the principle of continuing, exclusive jurisdiction that pervades the Act." UIFSA 611 (1996) (Comment), 9 U.L.A., supra, at 444.

N.J.S.A. 2A:4-30.114a outlines the limited circumstances under which a state has jurisdiction to modify a registered order:

a. After a child support order issued in another state has been registered in this State, the registering tribunal of this State may modify that order only if section 52 of this act does not apply and after notice and hearing it finds that:

(1) the following requirements are met:

(a) the child, the individual obligee, and the obligor do not reside in the issuing state;

(b) a petitioner who is a nonresident of this State seeks modification; and

(c) the respondent is subject to the personal jurisdiction of the tribunal of this State; or

(2) the child or a party who is an individual is subject to the personal jurisdiction of the tribunal of this State and all of the individual parties have filed written consents in the issuing tribunal for a tribunal of this State to modify the support order and assume continuing, exclusive jurisdiction over the order.

The Comment to this section explains these requirements as an attempt to "achieve a rough justice between the parties in the majority of cases by preventing a litigant from choosing to seek modification in a local tribunal to the marked disadvantage of the other party." UIFSA 611 (1996) (Comment), 9 U.L.A., supra, at 444.

The trial judge held that New Jersey lacked subject matter jurisdiction to modify the Arizona order because plaintiff was not a non-resident of New Jersey seeking modification, thus not satisfying N.J.S.A. 2A:4-30.114a(1)(b), and because no consents were filed pursuant to N.J.S.A. 2A:4-30.114a(2). As we have stated, the judge did not address personal jurisdiction over defendant.

We agree with the judge's analysis and conclusion. We also agree with her rejection of plaintiff's alternative argument that the controlling section of UIFSA under the circumstances in this case is N.J.S.A. 2A:4-30.74b(3), which provides: "If none of the tribunals would have continuing, exclusive jurisdiction under this act, the tribunal of this State having jurisdiction over the parties, shall issue a child support order which controls and shall be so recognized." This argument is unpersuasive because this section applies only when multiple orders have been issued, which has not occurred in this case. See N.J.S.A. 2A:4-30.74, titled "Jurisdiction; rules for determining order of recognition of multiple orders." Further, N.J.S.A. 2A:4-30.74a provides that "[i]f a proceeding is brought under this act, and only one tribunal has issued a child support order, the order of that tribunal controls and shall so be recognized."

We find no error in the judge's conclusion that N.J.S.A. 2A:4-30.112 and -30.114 control and the application of those sections deprives the New Jersey court of subject matter jurisdiction to modify the Arizona order. This interpretation and application is consistent with the policies underlying UIFSA, which is designed to create uniformity across the states and to eliminate multiple orders, thus extending modification jurisdiction only in the non-petitioning party's place of residence.

Plaintiff further argues that her claim for relief can be characterized as one for enforcement. Although not articulated clearly, the asserted enforcement seems to be two-fold: (1) to compel defendant to provide health insurance and to reimburse her for medical expenses she has paid in default of his obligations under the 1996 Arizona order; and (2) to compel resumption of an appropriate monthly support obligation, based upon the current financial circumstances of the parties, after she resumed custody of the children. Plaintiff contends that both forms of enforcement should lie under the terms of the 1996 Arizona order, the first by virtue of the express terms of the order, and the second by virtue of the agreement, appended to the order, which provided for a temporary cessation of support payments, which would be "reevaluated and resubmitted to County of Pima according to current child support guidelines" after one year.

The trial judge refused to consider enforcement because of plaintiff's failure to register the Arizona order. We are mindful of the apparently permissive language of N.J.S.A. 2A:4-30.104, which provides that a support order issued by a court of another state "may" be registered in this state for enforcement. Nevertheless, as we have previously discussed, "[a]ll judicial . . . activity must begin with the registration of the existing support order in the responding state . . . ." 9 U.L.A., supra, at 288 (emphasis added). Further, the Comment to section 601 of the 1996 version of UIFSA, which is identical to N.J.S.A. 2A:4-30.104, provides, "[r]egistration of [the existing] order in the responding state is the first step to enforcement by a tribunal of that state." UIFSA 601 (1996) (Comment), 9 U.L.A., supra, at 420. Because plaintiff failed to register the order, the judge properly declined to consider any enforcement action.

The amended order of August 1, 2005, which purported to grant some enforcement relief by compelling provision of medical insurance and reimbursement for medical expenses is not before us. The order was entered after the appeal was filed. Accordingly, the trial judge vacated it for lack of jurisdiction, and we denied plaintiff's motion for a limited remand to reinstate the amended order.

Our affirmance of the limited disposition entered by the trial court is without prejudice to defendant's right to pursue relief by means not already adjudicated. She may, for example, register the Arizona order in New Jersey and seek enforcement. Any new proceeding should be initiated by the filing of a complaint. See Sharp v. Sharp, 336 N.J. Super. 492, 497 n.1 (App. Div. 2001). With the order registered, plaintiff may seek enforcement in New Jersey. Plaintiff may also request that New Jersey, as an initiating state, send the case to Arizona to act as a responding state for enforcement. See N.J.S.A. 2A:4-30.73a ("A tribunal of this State shall serve as an initiating tribunal to request a tribunal of another state to enforce or modify a support order issued in that state.") Of course, in either circumstance, the issue of personal jurisdiction will need to be addressed. Plaintiff also has the option of seeking relief in an appropriate tribunal in Japan. We offer no comment as to the appropriate outcome of any future proceeding plaintiff may pursue. We are satisfied, however, that notwithstanding the adverse determinations already made in the proceeding that is the subject of this appeal, plaintiff is not left without opportunities for relief.

Affirmed.

 

New Jersey adopted the 1996 version of UIFSA, which is codified under N.J.S.A. 2A:4-30.65 to -30.123.

These sections outline the procedures for registering an out-of-state order as codified under N.J.S.A. 2A:4-30.104 to -30.107.

"'Responding state' means a state in which a proceeding is filed or to which a proceeding is forwarded for filing from an initiating state under this act or a law substantially similar to this act . . . ." N.J.S.A. 2A:4-30.65.

Section 52 only applies when both parties reside in this State and the child does not reside in the issuing state. N.J.S.A. 2A:4-30.116. Because defendant resides in Japan this section is not applicable.

(continued)

(continued)

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A-6108-04T2

October 23, 2006