OSMAN KHAN v. AISHA RAJPUT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3122-08T43122-08T4

OSMAN KHAN,

Plaintiff-Respondent,

v.

AISHA RAJPUT,

Defendant-Appellant.

_______________________________________

 

Argued January 4, 2010 - Decided

Before Judges Rodr guez, Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FD-09-2477-05.

Shoshana Gross argued the cause for appellant (Central Jersey Legal Services, Inc., attorneys; Ms. Gross, of counsel and on the brief).

Seth Parker argued the cause for respondent (Lesnevich & Marzano-Lesnevich, L.L.C., attorneys; Mr. Parker, of counsel; Mr. Parker and Scott Adam Laterra, on the brief).

PER CURIAM

Defendant appeals from an order entered by the trial court on January 28, 2009, which declared that New Jersey has jurisdiction to render a custody determination regarding the parties' two minor children, ordered plaintiff to pay child support, and directed that the children be brought to the United States from Pakistan. Defendant also appeals from an order entered on February 9, 2009, which denied her motion for reconsideration. We affirm.

I.

The following facts are pertinent to our decision. The parties are citizens of Pakistan, who were married there in September 2003. Previously, plaintiff had been living in the United States. He returned to this country On November 30, 2003, on a work permit. Defendant, who was trained as a physician in Pakistan, came to the United States on February 24, 2004, on a visitor's visa, to take a series of examinations so that she could practice medicine in this country. Defendant was pregnant at the time. According to plaintiff, the parties wanted their children to be born in the United States.

In August 2004, defendant gave birth to A.K. in Jersey City, New Jersey. A.K. resided with the parties in New Jersey until November 3 or 4, 2004, when defendant returned to Pakistan with A.K. According to plaintiff, defendant left the United States in order to comply with the terms of her visa, which required that she leave this country after six months but allowed her to return after a period of time. According to plaintiff, the parties agreed that defendant and A.K. would remain in Pakistan for one or two months. Plaintiff said that the parties' had a good relationship at the time.

Plaintiff communicated with defendant frequently while she was in Pakistan. Plaintiff asserted, however, that defendant "kept stalling" her return and gave him various "excuses" for not returning to the United States. In March 2005, the parties argued during a telephone call, and defendant told plaintiff that she would not be coming back to the United States.

In April 2005, plaintiff commenced an action in the Family Part, Hudson County, seeking custody of A.K. Plaintiff was apparently unaware that defendant had returned to the United States sometime in that same month and was living with her brother's friend on Long Island. The court entered an order dated April 22, 2005, which required defendant to show cause on May 20, 2005, why an order should not be entered granting plaintiff temporary physical and legal custody of the child; restraining defendant from interfering with custody; and fixing a visitation/parenting plan for the parties.

On May 22, 2005, the Family Part, Hudson County, entered an order dated May 20, 2005, dismissing the action without prejudice. The order declared that the court did not have jurisdiction to make an initial custody determination regarding A.K. because the child had only lived in New Jersey with his parents for two months. However, the court told plaintiff that if he was able to locate and serve defendant, he could return to court and pursue the matter.

In June 2005, plaintiff learned that defendant was in this country and went to see defendant. The parties reconciled and lived together at various times in Carteret, Woodbridge and Clifton. On October 25, 2005, defendant again returned to Pakistan, in order to comply with the terms of her visa. Plaintiff said that defendant agreed that she would come back to the United States with A.K. Plaintiff said that, at the time, the parties' relationship "was absolutely fine."

While defendant was in Pakistan, plaintiff communicated with her on a daily basis by telephone or text messaging. Plaintiff said that on November 1, 2005, defendant sent him a text message informing him that she was pregnant. In December 2005, plaintiff was involved in an automobile accident and was unable to continue his work as a limousine driver. According to plaintiff, defendant became irate at his financial situation and in January 2006, told him that she was not going to come back to the United States.

Nevertheless, in March 2006, defendant returned to the United States. The child remained in Pakistan. Defendant did not inform plaintiff that she had returned; however, plaintiff learned that defendant was back in this country. Despite this knowledge, plaintiff did not take any action at the time to obtain custody of A.K. In early June 2006, defendant gave birth to a second child, I.R., in Edison, New Jersey.

Defendant did not inform plaintiff that she had given birth to I.R. nor did she identify plaintiff as the father on the child's birth certificate. Even so, one of defendant's relatives told plaintiff of the child's birth. Plaintiff went to the police and informed them that he was concerned that defendant "would run away" with the child. The police told plaintiff that he had to obtain a custody order from the court before he could file a criminal complaint.

Plaintiff thereafter commenced an action in the Family Part, Passaic County, seeking custody of A.K. The court entered an order dated June 7, 2006, which granted plaintiff temporary custody of A.K. and ordered defendant not to remove the child from the State. However, as we noted previously, A.K. was still in Pakistan.

The Family Part, Passaic County, entered another order dated July 25, 2006, which provided that the June 7, 2006 order would remain in effect and directed that defendant be located for purposes of considering issues related to the custody and parentage of I.R. Plaintiff also filed complaints with law enforcement authorities in Clifton, Weehawken and Edison, alleging that defendant had "abducted" A.K. These complaints led to the issuance of warrants for defendant's arrest, which later were converted into federal warrants.

Defendant left the United States with I.R. on June 27, 2006, and took the child to Pakistan, where he has remained since. According to defendant, I.R. required surgery to correct a club foot. In February 2007, when defendant returned to the United States to work as a volunteer at a hospital in Iowa, she was arrested at the airport in Chicago on the federal warrants. After defendant was released from custody, she returned to New Jersey to deal with the pending charges.

In March 2007, upon plaintiff's application, the court in the Passaic County case entered an order declaring that plaintiff had sole temporary custody of I.R. The court ordered defendant to immediately return A.K. and I.R. to the United States and plaintiff's custody. The court also ordered defendant to show cause why plaintiff should not be awarded permanent custody of the children. The court entered another order on August 20, 2007, continuing the restraints in its June 7, 2006 order and scheduling a plenary hearing on the issue of jurisdiction.

On February 6, 2008, plaintiff withdrew his complaint in the Passaic County action and the orders entered in that action were vacated. Plaintiff said that he withdrew the complaint because he was advised that it had been filed in the wrong county. On February 14, 2008, plaintiff filed a motion in the previously-dismissed Hudson County case, seeking reconsideration and/or relief from the order entered on May 22, 2005 order which had dismissed his complaint without prejudice.

The trial court conducted a hearing on the jurisdictional question and on January 28, 2009, delivered a lengthy decision from the bench. The court found that it had jurisdiction under the New Jersey Uniform Child Custody Jurisdiction and Enforcement Act, N.J.S.A. 2A:34-53 to -95 (the "UCCJEA"), to render initial child custody determinations regarding the children. The court awarded sole legal and physical custody of the children to defendant and ordered plaintiff's sister to return the children to the United States by February 20, 2009. The court entered an order on that date setting aside the order entered on May 22, 2005.

Defendant thereafter filed a motion seeking reconsideration of the court's January 28, 2009 order and a declaration that Pakistan is the children's "home state" for purposes of the UCCJEA. Defendant also sought a stay of the provision of the order requiring the children's return to the United States by February 20, 2009. The court entered an order dated February 9, 2009, denying those motions.

Defendant filed a notice of appeal and an emergent motion for a stay of the trial court's January 28, 2009 order pending disposition of the appeal. We entered an order dated February 19, 2009, granting defendant's motion and staying the provision of the order requiring the return of the children.

In this appeal, defendant raises the following issues for our consideration.

POINT I - THE COURT ERRED IN MAKING AN INITIAL CUSTODY DETERMINATION AS TO [A.K.] AND [I.R.] BECAUSE PAKISTAN IS THEIR HOME STATE AND THE HUDSON COUNTY COURT DOES NOT HAVE JURISDICTION TO MAKE AN INITIAL CUSTODY DETERMINATION.

POINT II - THE COURT ERRED WHEN IT CONSIDERED THE PRESENT ACTION TO BE A CONTINUATION OF THE APRIL 2005 APPLICATION INSTEAD OF A NEW APPLICATION, INITIATED IN FEBRUARY 2008.

POINT III - NEW JERSEY DOES NOT HAVE CONTINUING EXCLUSIVE JURISDICTION OVER [A.K.] OR [I.R.] BECAUSE AN INITIAL CUSTODY DETERMINATION WAS NEVER MADE BY A NEW JERSEY COURT WHILE NEW JERSEY WAS THEIR HOME STATE.

POINT IV - THE TRIAL COURT ERRED BECAUSE IT DID NOT CONSIDER WHETHER CIRCUMSTANCES HAVE CHANGED BETWEEN MAY 2 005 AND FEBRUARY 2008 SO AS TO DIVEST THE STATE OF JURISDICTION.

POINT V - THE TRIAL COURT ERRED IN CONSIDERING THE CHILDREN'S ABSENCE FROM NEW JERSEY A TEMPORARY ABSENCE.

II.

We turn first to defendant's contention that the trial court erred by finding that it had jurisdiction under the UCCJEA to make initial custody determinations regarding the children. Defendant contends that Pakistan is the children's "home state" for purposes of the UCCJEA. Defendant also contends that the court erred by finding that the children were temporarily absent from New Jersey when the custody proceedings were commenced regarding these children.

The UCCJEA provides in N.J.S.A. 2A:34-65(a) that, except as otherwise provided in N.J.S.A. 2A:34-68,

a court of this State has jurisdiction to make an initial child custody determination only 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 [N.J.S.A. 2A:34-71] or [N.J.S.A. 2A:34-72] 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 [N.J.S.A. 2A:34-71] or [N.J.S.A. 2A:34-72]; or

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

The UCCJEA defines the term "home state" 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.

[N.J.S.A. 2A:34-54.]

Here, the trial court determined that New Jersey was A.K.'s and I.R.'s "home state" for purposes of the UCCJEA. The court found that both children had lived with a parent for at least six consecutive months before the respective custody proceedings were commenced. The court found that, although defendant had removed both children from this State, their stay in Pakistan constituted periods of temporary absence from New Jersey.

The court further found that Pakistan was not the "home state" of either child and did not have jurisdiction under the UCCJEA to render initial custody determinations regarding the children. The court determined that plaintiff and the children had significant connections with this State and substantial evidence for resolving the custody dispute is available here.

The scope of our review of the trial court's findings of fact is strictly 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) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Deference to the trial court's factual findings "is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).

"Therefore, an appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms, supra, 65 N.J. at 484). Furthermore, "[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 are satisfied that there is sufficient credible evidence in the record to support the court's conclusion that New Jersey is A.K.'s "home state" for purposes of the UCCJEA. As we stated previously, A.K. was born in August 2004, in Jersey City. A.K. resided in this state with his parents until early November 2004, when defendant took him to Pakistan.

The record established that New Jersey was A.K.'s "home state" on April 22, 2005, when plaintiff commenced the custody proceeding regarding A.K. in Hudson County. Although defendant had taken the child to Pakistan in early November and the child has remained there since, plaintiff only consented to the child's temporary removal from this jurisdiction and he learned in March 2005 that the child would be kept in Pakistan without his consent.

Under these circumstances, A.K.'s absence from New Jersey for the period from November 2004 to April 2005 was a "period of temporary absence" from this state for purposes of N.J.S.A. 2A:34-54. Therefore, New Jersey was A.K.'s "home state" within six months before plaintiff commenced the custody proceeding in April 2005. We note that there is no evidence to suggest that defendant ever sought or Pakistan ever made a custody determination regarding A.K.

Furthermore, A.K. and plaintiff have significant connections with New Jersey. Plaintiff has been and continues to be a resident of this state. The child was born in New Jersey and lived here with his parents until he was temporarily removed from this State and kept in Pakistan without plaintiff's consent.

Moreover, there is substantial evidence in this State relevant to the trial court's custody determination. Accordingly, we conclude that the trial court correctly determined that it had jurisdiction under N.J.S.A. 2A:34-68 to make an initial custody determination regarding A.K.

We reach the same conclusion regarding I.R. As we pointed out previously, I.R. was born in New Jersey in early June 2006. The UCCJEA states that, in cases involving children who are less than six months old, a child's "home state" is the "state in which the child lived from birth" with a parent or person acting as a parent. N.J.S.A. 2A:34-54. It is undisputed that I.R. lived with defendant in New Jersey from the time of his birth until June 25, 2006, when defendant took him to Pakistan without informing plaintiff that she had given birth to the child and was taking him to Pakistan.

We are therefore convinced that I.R. was temporarily absent from New Jersey after June 27, 2006, when he was taken to Pakistan and he remained temporarily absent from New Jersey when plaintiff sought custody of I.R. in the Passaic County case. Consequently, New Jersey has jurisdiction under N.J.S.A. 2A:34-68 to make an initial custody determination regarding I.R. because this was I.R.'s "home state" within six months before plaintiff first sought custody of the child in the Passaic County action. We note that there is no evidence indicating that defendant sought or Pakistan made an initial custody determination regarding I.R.

Moreover, as was the case with A.K., I.R. and plaintiff have significant connections with New Jersey and substantial evidence is available in this jurisdiction for resolution of the custody dispute regarding I.R. We therefore conclude that the trial court correctly determined that New Jersey has jurisdiction under the UCCJEA to make an initial custody determination as to I.R.

We additionally note that the fact that plaintiff voluntarily withdrew his complaint in the Passaic County action on February 8, 2007, has no bearing whatsoever on whether the trial court had jurisdiction under the UCCJEA to make an initial custody determination regarding the children. Plaintiff withdrew his complaint in the Passaic County case because he was advised that the action had been commenced in the wrong county. Plaintiff did not withdraw the action intending to abandon his efforts to obtain custody of the children. Indeed, within days, plaintiff moved to reopen the Hudson County proceedings that he had commenced in April 2005. It is clear that the Passaic County case and the reopened Hudson County matter were a single, continuing effort on plaintiff's part to seek custody of the children.

III.

Next, defendant argues that the trial court erred when it considered this action to be a continuation of the custody proceedings regarding A.K. that plaintiff commenced in April 2005, rather than an entirely new matter initiated in February 2008. Again, we disagree.

As we explained previously, in April 2005, plaintiff filed his complaint in the Hudson County case seeking custody of A.K., and the court entered an order dismissing plaintiff's complaint without prejudice on May 22, 2005. In February 2008, plaintiff sought reconsideration of that order pursuant to Rule 4:49-2 or, in the alternative, relief from the order pursuant to Rule 4:50-1(f).

The trial court determined that reconsideration was proper because the order entered on May 22, 2005 was not a final judgment. The trial court further determined that, even if the order was a final judgment, relief from the judgment was warranted under the exception circumstances presented here.

Rule 4:49-2 provides in pertinent part that a motion for "reconsideration seeking to alter or amend a judgment or order shall be served not later than [twenty] days after service of the judgment or order[.]" In general, the rule applies final judgments and orders. Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 263-64 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988).

As the trial court noted in its bench decision, the order entered on May 22, 2005 dismissed plaintiff's complaint without prejudice. Therefore, the order was not a final adjudication on the merits of the controversy. The court additionally pointed out that it had informed plaintiff he could return to court and seek to reopen the matter after defendant was located and served. We are convinced that, based on these facts, the court did not abuse its discretion by concluding that the order entered on May 22, 2005 could be reconsidered pursuant to Rule 4:49-2.

Alternatively, assuming the order entered on May 22, 2005 was a judgment that finally resolved that particular action, the trial court correctly determined that plaintiff could be granted relief from the order pursuant to Rule 4:50-1(f). The rule allows a party to obtain relief from a final judgment for "any" reasons justifying that relief. Ibid. "[T]he very essence of [Rule 4:50-1(f)] is its capacity for relief in exceptional situations. And in such exceptional cases its boundaries are as expansive as the need to achieve equity and justice." DEG, L.L.C., v. Tp. of Fairfield, 198 N.J. 242, 269-270 (2009) (quoting Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)).

In its decision from the bench, the court determined that the reasons for granting plaintiff relief from the order entered on May 22, 2005, were exceptional because the court had mistakenly determined it did not have jurisdiction under the UCCJEA to render an initial custody determination regarding A.K.; the dispute involved the exercise of plaintiff's fundamental right to custody of a child; and defendant had obstructed plaintiff's right to visitation with the children for several years, while plaintiff "did everything within his power" to assert his parental rights. The court also stated it was in the children's best interests to grant relief from the May 22, 2005 order.

The trial court's findings are binding upon us because they are supported by sufficient credible evidence in the record. Rova Farms, supra, 65 N.J. at 484. We therefore conclude that the court did not err by granting plaintiff relief from the May 22, 2005 order.

IV.

Defendant additionally argues that, even assuming that New Jersey is the children's "home state," New Jersey never acquired continuing exclusive jurisdiction in this dispute because the New Jersey court never made an initial custody determination regarding the children. This contention misses the mark.

N.J.S.A. 2A:34-66 provides as follows:

a. Except as otherwise provided in [N.J.S.A. 2A:34-68], a court of this State that has made a child custody determination consistent with [N.J.S.A. 2A:34-65] or [N.J.S.A. 2A:34-67] of this act has exclusive, continuing jurisdiction over the determination 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.

By its terms, this statute applies in a case where a court has made an initial child custody determination and sets forth the circumstances under which the court has continuing exclusive jurisdiction in the matter. Here, the trial court did not make initial child custody determinations regarding the children until it rendered its decision in this case and issued the order dated January 28, 2009, memorializing that decision.

However, as we have determined, the trial court had jurisdiction under the UCCJEA to make those determinations. Thus, the decisions rendered in this matter were a proper exercise of the court's jurisdiction to render initial custody determinations regarding the children, not the exercise of continuing, exclusive jurisdiction in a matter where the court had previously made initial custody determinations.

Defendant also argues that the trial court erred by failing to consider the change in circumstances in the relationships between plaintiff and the children. In support of this contention, defendant relies upon N.J.S.A. 2A:34-66(a). She contends that plaintiff's February 2008 application was essentially an application for a modification of a previous child custody determination and the trial court did not have exclusive, continuing jurisdiction to rule in the matter because "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[.]" N.J.S.A. 2A:34-66(a)(1).

However, as we have pointed out, the trial court never made initial custody determinations regarding the children and, therefore, N.J.S.A. 2A:34-66 does not apply. Furthermore, plaintiff and the children have significant connections with New Jersey. In addition, New Jersey did not lose its jurisdiction to render initial custody determinations regarding the children simply because defendant removed the children from this State and has kept them in Pakistan for several years without plaintiff's consent.

We have considered the other contentions raised by defendant and find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Accordingly, the trial court's orders of January 28, 2009, and February 9, 2009, are affirmed. The stay entered by the court on February 19, 2009, is vacated, and the matter is remanded to the trial court to establish a suitable date for the transfer of the children from Pakistan to the United States.

Affirmed and remanded to the Family Part, Hudson County, for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

(continued)

(continued)

20

A-3122-08T4

 

February 16, 2010