SCOTT GALE v. SIBYL GALE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0757-08T30757-08T3

SCOTT GALE,

Plaintiff-Appellant,

v.

SIBYL GALE,

Defendant-Respondent.

_______________________________________

 

Submitted July 22, 2009 - Decided

Before Judges Yannotti and Lyons.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-354-08.

Scott Gale, appellant pro se.

Sibyl Gale, respondent pro se.

PER CURIAM

Plaintiff Scott Gale appeals from an order entered by the trial court on September 19, 2008, dismissing his motion for visitation with the parties' children and related relief on the ground that the court lacked jurisdiction pursuant to the New Jersey Uniform Child Custody Jurisdiction and Enforcement Act, N.J.S.A. 2A:34-53 to -95 (the "UCCJEA"). We affirm.

The following facts are relevant to our decision. The parties were married on September 4, 1999, in Roosevelt, New York, and thereafter resided in Brentwood, New York. Two children were born of the marriage. In 2001, plaintiff left the marital home and moved to an apartment in Brooklyn, New York.

The marriage was dissolved by a judgment of divorce dated August 2, 2004, and entered on that date by the Supreme Court of New York, Kings County. The judgment provided, among other things, that the parties would have joint custody of the children, the children would reside with defendant and plaintiff would have visitation with the children at specified times. The divorce decree further provided that plaintiff would pay child support in the amount of $575 per month.

In August 2004, plaintiff relocated to Willingboro, New Jersey. In 2006, plaintiff filed an order to show cause and verified petition in the New York court seeking a modification of the visitation schedule. The New York court entered an order dated September 5, 2006, granting plaintiff's application. Among other things, the September 5, 2006 order provided that plaintiff would have visitation with the children on alternating weekends beginning at 6:00 p.m. on Friday through 7:00 p.m. on Sunday. The order further made provision for visitation during the Thanksgiving and Christmas holidays.

It appears that in 2007, defendant also decided to re-locate to New Jersey. Defendant purchased a home in Willingboro but stayed from time to time in plaintiff's home. On September 11, 2007, plaintiff had the police remove defendant from his home. The following day, defendant filed a domestic violence complaint in the Family Part alleging that plaintiff had engaged in threatening behavior. The court entered a temporary restraining order.

On September 17, 2007, the parties appeared in court on the domestic violence matter. Defendant agreed to the dismissal of her complaint and dissolution of the temporary restraining order. On the same day, with the consent of the parties, the court entered an order which stated in pertinent part that:

[t]he parties acknowledge that they entered into a comprehensive agreement for custody and parenting time, including holidays and summer vacation, said agreement was detailed in their [Judgment] of Divorce, entered in the State of New York, King[s] County, on [August 2, 2004] . . . and registered in the State of New Jersey, under the above docket number [FM-03-354-08Y], on 9/17/2007. Thereafter, the parties entered into a stipulation dated 6/3/04, which survived and did not merge with the Judgment, and thereafter entered into an order under Docket No. V-8335/06 . . . (which is attached hereto, rendered in the County of Suffolk, in the State of New York on or about August 2006.

The September 17, 2007 consent order modified the custody order entered by the New York court in August 2006. The consent order set forth a new parenting time schedule, provided that the parties would have telephone access to the children at reasonable times, and stated that the children would continue to attend a certain school until further order of the court or the parties otherwise agreed.

Following the entry of the September 17, 2007 consent order, disagreements arose concerning plaintiff's parenting time. In December 2007, defendant moved back to New York with the children.

On December 24, 2007, plaintiff filed a motion in the trial court seeking, among other things, an order: requiring the immediate return of the children to New Jersey; enjoining defendant from removing the children from New Jersey; granting defendant reasonable parenting time in New Jersey; terminating plaintiff's child support obligation; and requiring defendant to pay child support. Defendant opposed the motion and filed a cross-motion seeking dismissal of plaintiff's application on the ground that the court lacked jurisdiction under the UCCJEA. On February 1, 2008, the trial court entered an order denying the relief sought by the parties without prejudice pending a plenary hearing to determine whether it had jurisdiction in the matter.

In its order, the court noted that, under the UCCJEA, a New Jersey court does not have jurisdiction to modify New York custody orders unless New Jersey was the children's "home state" at the time plaintiff filed his motion for custody and other relief. The court further noted that the term "home state" is defined in N.J.S.A. 2A:34-54 as the state in which the child has resided with a parent for at least six consecutive months immediately prior to commencement of the child custody proceeding. The court found that there was a genuine issue of material fact as to whether the children resided with a parent in New Jersey for at least six consecutive months prior to December 24, 2007, when plaintiff filed his motion.

The court conducted the plenary hearing on April 10, 2008 and May 6, 2008. On September 19, 2008, the court rendered a decision from the bench concluding that New Jersey was not the children's "home state" for purposes of the UCCJEA. The court found that the children had not lived with a parent consecutively in New Jersey for at least six months prior to the filing of plaintiff's motion. The court entered an order dated September 19, 2008, dismissing plaintiff's motion. This appeal followed.

Plaintiff raises the following arguments for our consideration:

POINT I

THE COURT TOTALLY DISREGARDED THE FACTS ADDUCED DURING TRIAL WHEN IT SUMMARILY DISMISSED APPELLANT[']S PETITION. THE PARTIES AND THE CHILDREN LIVED IN NEW JERSEY SIX CONSECUTIVE MONTHS PRIOR TO THE FILING OF APPELLANT'S ACTION.

POINT II

THE COURT ERRED BY NOT MAKING ITS DECISION PURSUANT TO ANY OF THE [CRITERIA] OF THE UNIFORM CHILD CUSTODY [JURISDICTION AND ENFORCEMENT] ACT.

POINT III

THE COURT SHOULD HAVE FACTORED [SIC] THE CIVIL RESTRAINT AGREEMENT WHICH ALLOWED FOR CONSENT JURISDICTION.

We have carefully considered these contentions in light of the evidence adduced at the hearing and the applicable law. We conclude that plaintiff's arguments are entirely without merit. We accordingly affirm substantially for the reasons stated by Judge Cook in the decision that he placed on the record on September 19, 2008. R. 2:11-3(e)(1)(A) and (E). We add the following brief comments.

Except as otherwise provided in N.J.S.A. 2A:34-68, the Superior Court has jurisdiction under the UCCJEA to make an initial child custody determination or modification decree if:

(1) this State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State;

(2) a court of another state does not have jurisdiction under paragraph (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under section 19 or 20 of this act and:

(a) the child and the child's parents, or the child and at least one parent or a person acting as a parent have a significant connection with this State other than mere physical presence; and

(b) substantial evidence is available in this State concerning the child's care, protection, training and personal relationships;

(3) all courts having jurisdiction under paragraph (1) or (2) of this subsection have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody of the child under section 19 or 20 of this act; or

(4) no state would have jurisdiction under paragraph (1), (2) or (3) of this subsection.

[N.J.S.A. 2A:34-65.]

The term "home state" is defined in N.J.S.A. 2A:34-54 to mean:

the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.

Here, the trial court found that New Jersey was not the "home state" of the children because they had not resided with a parent in this State for at least six consecutive months prior to December 24, 2007, when plaintiff filed his motion for visitation and other relief. The court determined that the children did not move to New Jersey until July 7, 2007, and left the State on December 23, 2007.

The trial court's findings of fact "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). The trial court's findings "'should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice.'" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). We are convinced from our review of the record that there is sufficient, credible evidence in the record to support the court's finding that New Jersey was not the children's "home state."

Plaintiff argues, however, that all of the credible evidence shows that the children moved to New Jersey on June 22, 2007, and resided here until January 3, 2008. We disagree.

In its decision from the bench, the trial court noted that defendant had testified that the children resided with her in New York until July 7, 2007, when they were transferred to plaintiff. Plaintiff insisted that the exchange of the children occurred on June 23, 2007. The court reviewed the EZPass records for defendant's automobile and noted that the records supported defendant's contention that the exchange occurred on July 7th, when defendant traveled on the New Jersey Turnpike, exited at Exit 10, traveled to Exit 9 and then re-entered the highway at Exit 9 to return to New York via the George Washington Bridge.

The court noted that defendant's testimony that the exchange of the children occurred at a toll plaza on the Turnpike had been corroborated by the testimony of plaintiff's niece, Kianna Witherspoon. The court further noted that defendant's assertion that the children did not begin to reside with plaintiff until July 7th was supported by the testimony of defendant's friend, Dawn Matthews, who testified that defendant came to her office with one of the children during the last week of June 2007.

The court additionally determined that the evidence did not support plaintiff's assertion that the exchange of the children had taken place on June 23rd. The court noted that plaintiff had testified that the children came to Willingboro on June 20th to spend a few days with him, but that they had returned to New York on June 22nd. Plaintiff also testified that the children "came back" to stay with him in New Jersey on June 23rd and remained with him until January 2008. The court found that the EZPass records did not support plaintiff's testimony because the records indicated that defendant did not travel at any time on the Turnpike in either direction on June 23rd.

We are therefore satisfied that there is sufficient credible evidence in the record to support the court's finding that the children did not begin to reside in New Jersey until July 7th and did not reside here for at least six consecutive months prior to the filing of plaintiff's motion on December 24, 2007. Accordingly, the trial court correctly determined that New Jersey was not the children's "home state" for purposes of the UCCJEA.

Plaintiff contends, however, that the trial court erred by failing to take into consideration the September 17, 2007 consent order, which provided for the registration in New Jersey of the New York divorce decree and the New York August 2006 child custody order, and permits modification and enforcement of those orders by the New Jersey court. Plaintiff recognizes that the parties could not confer jurisdiction on the New Jersey court by agreeing to the entry of the September 17, 2007 order if New Jersey's exercise of jurisdiction is not authorized by the UCCJEA. See Peregoy v. Peregoy, 358 N.J. Super. 179, 184 (App. Div. 2003).

Plaintiff nevertheless maintains that the September 17, 2007 consent order is relevant and shows that New Jersey is the more appropriate forum for deciding the instant custody dispute. Again, we disagree. As the trial court correctly determined, New Jersey does not have jurisdiction under the UCCJEA. Moreover, the New York courts had entered the parties' divorce decree and the August 2006 custody order. In addition, the children resided in New York until July 2007 and they returned to New York after residing in this State for less than six months. Under the circumstances, New York is the more appropriate forum for deciding this dispute.

We have considered all of plaintiff's other contentions and find them to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

 
Affirmed.

N.J.S.A. 2A:34-71 or 2A:34-72.

(continued)

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A-0757-08T3

August 27, 2009