SHERGOL R. BROWN, JR v. LISA VICTORIA BROWN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

SHERGOL R. BROWN, JR.,

Plaintiff-Appellant,

v.

LISA VICTORIA BROWN,

Defendant-Respondent.

________________________________

March 25, 2014

Argued: March 12, 2014 Decided:

Before Judges Simonelli, Fasciale and Haas.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1692-12A.

Leonard S. Miller argued the cause for appellant.

Respondent has not filed a brief.

PER CURIAM

Plaintiff Shergol R. Brown, Jr., appeals from the April 30, 2013 order of the Family Part, denying his "request to order the return of the minor child of the marriage, [C.B.], to the United States of America from Germany" on the ground that the court lacked jurisdiction pursuant to the New Jersey Uniform Child Custody Jurisdiction and Enforcement Act (NJUCCJEA). N.J.S.A. 2A:34-53 to -95. We affirm.

We glean the following factual background from the hearing conducted concerning plaintiff's request and from the documentary record. The parties were married in Maryland in February 2006 and resided in Camden County until March 2007. They have one child, C.B., born in June 2006. Plaintiff testified that in March 2007, defendant and C.B. went to Germany to visit her father, who was living there after retiring from the United States Army.1 Plaintiff consented to this trip. After two weeks, plaintiff testified that defendant "called up and said she's not coming back and please send her clothes." Plaintiff complied with this request.

Plaintiff alleged that he "contacted [the] Lindenwold Police Department who told me they couldn't do anything for me." There is no evidence in the record that plaintiff filed a criminal complaint against defendant. Plaintiff also testified that he "contacted numerous lawyers" and retained one to file a petition to have the child returned to New Jersey under the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention).2 However, there is nothing in the record showing that any action was ever filed in Germany under the Hague Convention. Defendant and C.B. continued to live in Germany. Plaintiff moved to Monmouth County. In April 2009, defendant obtained various orders from a German court ordering plaintiff to pay child support. Defendant's responsive pleading indicates that at least one of these orders granted her custody of C.B. These orders are, for the most part, written entirely in German and plaintiff has not provided us with a full English translation of any of them.

On September 7, 2012, defendant filed a German child support order with the Monmouth County Family Part for enforcement purposes. Plaintiff testified that he did not pay the full amount of the support ordered by the German court, although he did send defendant money, gifts, and clothing when she asked for it.

Fearful that he would be arrested for not complying with the German child support orders, plaintiff never visited C.B. in Germany. He did meet once with defendant and C.B. in Paris, France for two days in July 2012.

On April 16, 2012, plaintiff filed a complaint for divorce in Monmouth County. In addition to dissolving the marriage, plaintiff sought custody of C.B. On December 11, 2012, plaintiff filed a document that he represented was an answer to the complaint provided to him by defendant. In this pleading, defendant stated that she and C.B. "were permanent residents of Germany" and that she already had "sole custody over the child of the marriage in Germany where they have been residing at for 5 years now." Defendant asked for "[r]ecognition of the [G]erman family court order . . . giving [her] sole custody of [C.B.]."

The trial judge initially entered a case management order, which directed defendant to "return [the] child to New Jersey for Probation Department and Psychological/Psychiatric examination and report." However, after plaintiff filed a motion seeking custody of the child, the judge scheduled a hearing on the issue of jurisdiction.

After hearing testimony from plaintiff and the oral argument of his attorney, the judge concluded that New Jersey did not have jurisdiction over the custody dispute under the NJUCCJEA. The judge explained that there was nothing in the record to indicate that plaintiff had ever made any application to the German court to request that C.B. be returned to the United States. Nor was there any evidence that the child had any contacts with the State of New Jersey. The judge stated:

[T]here is nothing presented to this Court by way of [plaintiff's] testimony or otherwise that would indicate that the child is anything but settled in Germany. There's no indication that it would be in her best interest at all to remove her from Germany at this point, require her to come back to New Jersey for the Court to engage in a custody hearing. More importantly there is already a prior custody order in place in Germany and nothing precludes him and nothing ever precluded him from going to court in Germany to assert any of his rights.

This appeal followed.3

On appeal, plaintiff contends that the Family Part had jurisdiction to consider his request for custody of C.B. We disagree.

"[F]indings 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. "Trial court findings are ordinarily not disturbed unless 'they are so wholly unsupportable as to result in a denial of justice[.]'" Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). However, a trial court's "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The NJUCCJEA provides rules for determining which state has jurisdiction in "child custody determinations." N.J.S.A. 2A:34-53 to -95. When undertaking a jurisdictional analysis, the NJUCCJEA treats a foreign sovereign, like Germany, "as if it were a state of the United States . . . if the foreign court gives notice and an opportunity to be heard to all parties before making child custody determinations." N.J.S.A. 2A:34-57a.

The statutory definition of "child custody determination" includes legal and physical custody issues and visitation issues, but does not include support disputes. N.J.S.A. 2A:34-54. The NJUCCJEA provides that the "initial determination" for child custody must be brought in the state where the child is residing or where the child has resided within the six months preceding the commencement of the action. N.J.S.A. 2A:34-65a(1). The NJUCCJEA defines "initial determination" as "the first child custody determination concerning a particular child." N.J.S.A. 2A:34-54.

Here, defendant asserted, and the trial judge concluded, that the German courts had already granted her custody of the child. However, because plaintiff has not provided us with English translations of all of the orders, it is not clear whether an "initial determination" of custody of C.B. has already been made. What is clear, however, is that (1) C.B. has not resided in New Jersey since March 2007, and (2) plaintiff did not seek custody of the child until April 2012, over five years later. Because it has been more than six months since the child has lived in New Jersey, this state did not have jurisdiction over the child custody issue. N.J.S.A. 2A:34-65a.

Plaintiff argues that defendant should not be able to defeat the jurisdiction of New Jersey by "illegally abducting" C.B. and taking her to Germany. He is correct that once this State has taken proper jurisdiction under N.J.S.A. 2A:34-65, the provisions in the NJUCCJEA providing for continuing jurisdiction of the court effectively prevent a parent from thereafter defeating the jurisdiction of this State by wrongfully removing a child. See N.J.S.A. 2A:34-66a. Further, under the provisions of the NJUCCJEA, another court does not have jurisdiction to modify the determination of the court which had initial jurisdiction except under the specific circumstances provided in the NJUCCJEA. N.J.S.A. 2A:34-67. However, none of these provisions help plaintiff here; New Jersey cannot make the "initial determination" at this juncture because C.B. did not reside here within six months of the application, as required by N.J.S.A. 2A:34-65a.

Plaintiff argues that defendant "submitted herself to the personal jurisdiction of the Courts of New Jersey" by filing an answer to his complaint for divorce. Again, we disagree. First, plaintiff concedes that he, rather than defendant, actually filed the pleading after allegedly receiving it from defendant. Under those circumstances, we do not perceive the filing of the document by plaintiff as tantamount to defendant consenting to jurisdiction in this State. Moreover, defendant makes clear in the pleading that she does not believe that the issue of custody was properly before the Family Part because C.B. had not lived in New Jersey for over five years and the German court had already issued an order granting her custody. Thus, we reject plaintiff's argument.

Finally, we note that plaintiff is not without recourse should he wish to pursue parenting time with C.B., or even custody, in the future. He may file an appropriate action in Germany, which has jurisdiction of custody issues under the NJUCCJEA. He may also file a petition in Germany for the child's return to New Jersey under Article 12 of the Hague Convention. See F.H.U. v. A.C.U., 427 N.J. Super. 354 (App. Div. 198 (2012) (addressing the Hague Convention and its applicability for the protection of children internationally from wrongful removal). However, for the reasons stated above, New Jersey does not have jurisdiction over the custody and parenting time issues regarding C.B.

1 Plaintiff testified that defendant is a United States citizen.

2 Oct. 25, 1980, T.I.A.S. No. 11670, 1343, U.N.T.S. 49 (reprinted at 51 Fed. Reg. 10494 (Mar. 26, 1986)).

3 The judge granted plaintiff's request to dissolve the parties' marriage and incorporated the German child support order that defendant had previously filed in Monmouth County into the final judgment of divorce.