GUSTAVO OSORIO v. GRISEL L. GONZALEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1696-06T51671-07T1

GUSTAVO OSORIO,

Plaintiff-Respondent,

v.

GRISEL L. GONZALEZ,

Defendant-Appellant.

____________________________________________

 

Submitted: September 8, 2008 - Decided -

Before Judges Sabatino and Simonelli.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FM-04-1757-07.

McDowell Riga, P.C., attorneys for appellant (Ellen M. McDowell, of counsel; Jeffrey S. Walters, on the brief).

Paul R. Melletz, attorney for respondent.

PER CURIAM

Defendant Grisel L. Gonzalez (Gonzalez) appeals from the order of November 16, 2007, denying her motion to vacate a Pennsylvania divorce decree. We affirm.

Gonzalez and plaintiff Gustavo Osorio (Osorio) were married on December 18, 1987 in Canabra, Puerto Rico. One child was allegedly born of the marriage, a son, born April 20, 1990.

On October 4, 2002, Osorio filed a complaint for divorce in Pennsylvania, alleging that he resided at 7630 River Road, Pennsauken; that Gonzalez resided at 109 W. Master Street, Philadelphia (the Philadelphia property); and that Gonzalez was a bona fide resident in Pennsylvania for at least six months immediately prior to the filing of the complaint. A certificate of service, filed on November 4, 2002, indicates that on October 10, 2002, Gonzalez was personally served at the Philadelphia property with the divorce complaint and other documents, including a counter-affidavit under Section 3301(d) of the Pennsylvania Divorce Code.

Gonzalez denied she was served with the complaint. However, she admitted signing the second page of the counter-affidavit on October 10, 2002, the same day service of the complaint was effected. She also admitted that Osorio "approached [her] one day and said that he needed [her] to sign something so we could get a divorce. . . " and that she "knew [she] was signing something to allow him to get a divorce."

Gonzalez claims that she did not see the first page of the counter-affidavit; that she signed it not knowing that Osorio would pursue a divorce in Pennsylvania; and that she did not know she gave up her right to equitable distribution and child support. However, page two contains the following language:

I, Grisel L. Gonzalez, verify that the statements made in this affidavit are true and correct. I understand that false statements are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities.

NOTICE: If you do not wish to oppose the entry of a divorce decree and you do not wish to make any claim for economic relief, you need not file the Counter-Affidavit.

[Emphasis added.]

The relevant statements referred to on page two, that appear on page one, are as follows:

1(a) I do not oppose the entry of a divorce decree.

2(a) I do not wish to make any claims for economic relief. I understand that I may lose rights concerning alimony, division of property, lawyer's fees, or expenses if I do not claim them before a divorce decree is granted.

The Pennsylvania divorce decree was entered by default on November 6, 2002. After the divorce, Gonzalez retained possession of the Philadelphia property.

Gonzalez claims that at the time she signed the second page of the counter-affidavit, she and Osorio entered into an agreement to sell certain marital property and for child support. When Osorio did not abide by the agreement, on or about March 23, 2007, Gonzalez filed a complaint in New Jersey to void the Pennsylvania divorce decree and to enter a divorce judgment in New Jersey awarding her equitable distribution, child support and attorney's fees. Apparently, Gonzalez sought to vacate the Pennsylvania divorce decree in New Jersey because she knew she was time-barred doing so in Pennsylvania. Gonzalez alleges that the parties separated in November 2002 and "have lived separate and apart since that time[,]" and that the parties lived at 7630 River Road, Pennsauken, and not in Pennsylvania, when Osorio filed the Pennsylvania divorce complaint.

Gonzalez filed three motions to vacate the Pennsylvania divorce decree, arguing it should not receive full faith and credit because neither she nor Osorio lived in Pennsylvania when the complaint was filed, and therefore, the Pennsylvania court lacked subject matter jurisdiction. All three motions were denied without a hearing. On the last motion, the motion judge found Gonzalez's arguments "lacking the ring of truth." Relying on the certificate of service and the counter-affidavit, the judge also found "there has been a showing of jurisdiction in Pennsylvania." The judge concluded that Gonzalez made an insufficient showing to warrant a plenary hearing; that the Pennsylvania divorce decree was entitled to full faith and credit; that Gonzalez should have acted sooner to protect her interests; and that the counter-affidavit was proof that Gonzalez participated in the Pennsylvania divorce proceeding and, thus, implicitly waived any challenge to subject matter jurisdiction. The judge did not preclude Gonzalez from seeking relief in Pennsylvania, or from seeking child support in New Jersey, where she then resided.

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. We also afford deferential respect to a family judge's credibility determinations. N.J. Div. of Youth and Family Servs. v. H.B., 375 N.J. Super. 148, 172 (App. Div. 2005) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). Where our review addresses questions of law, however, a "trial judge's findings "are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002) (citing Manalapan Realty, L.P. v. Twp. Comm. Of Manalapan, 140 N.J. 366, 378 (1995))

Based upon our review of the record, we are satisfied that the judge's credibility and factual findings are amply supported by the record, and we discern no reason to disturb them. We are also satisfied that the judge correctly applied the law. The competent, documentary proof submitted to the motion judge proves that Gonzalez was personally served with the divorce complaint and counter-affidavit on October 10, 2002 at the Pennsylvania property; that she signed the counter-affidavit on October 10, 2002; and that the counter-affidavit refers to a Pennsylvania statute. "[A] state by virtue of the clause must give full faith and credit to an out-of-state divorce by barring either party to that divorce who has been personally served or who has entered a personal appearance from collaterally attacking the decree." Schlemm v. Schlemm, 31 N.J. 557, 567 (1960) (quoting Johnson v. Muelberger, 340 U.S. 581, 587, 71 S. Ct. 474, 477-78, 95 L. Ed. 552, 557 (1951)).

Affirmed.

Osorio believed he was the father of a second child born during the marriage. However, a paternity test in May 2004 excluded him as the biological father. He has requested a paternity test for the older child because he believes he is not that child's biological father as well.

Gonzalez's counsel conceded at oral argument that Gonzalez could seek relief in Pennsylvania, but she did not do so because New Jersey was more convenient. We do not need to resolve whether such a motion to vacate would be time-barred under Pennsylvania law in light of Gonzalez's conscious delay in seeking relief there.

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A-1671-07T1

October 1, 2008

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