SHIRA APPELBAUM v. DANIEL HUFF

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2200-12T2

SHIRA APPELBAUM,

Plaintiff-Appellant,

v.

DANIEL HUFF,

Defendant-Respondent.

December 23, 2015

Before Judges Reisner and Hoffman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-290-13.

Anat Gordon argued the cause for appellant.

Daniel Huff, respondent, argued the cause pro se.

PER CURIAM

Plaintiff Shira Appelbaum appeals from the December 7, 2012 Family Part order dismissing her divorce complaint on jurisdictional grounds, as well as forum non conveniens grounds. We affirm.

We begin with a summary of the relevant facts derived from the motion record. In 2007, the parties married in New Jersey, and in 2008, plaintiff gave birth to their only child. According to plaintiff, the couple agreed in 2007 that they would move to the Washington D.C. area so that defendant could take a temporary job there. After they moved to an apartment in Silver Spring, Maryland, plaintiff began graduate school at Georgetown University; upon her graduation in 2009, she began a full-time job in Washington D.C. Plaintiff stated that "[a]t the end of 2010 [the] marriage was beginning to fall apart," with defendant sleeping many nights away from the apartment.

On July 23, 2012, plaintiff filed a complaint for divorce in Middlesex County, alleging extreme cruelty "commencing on or about December 10, 2010, and continuing from that time through May 1, 2012." Plaintiff further alleged that she was a bona fide resident of New Jersey "for one year next preceding the time that the cause of action arose," identifying her parent's address in Edison as her residence.

According to defendant, the parties resided in Silver Spring from June 2007 until July 2012. He attached a letter from their Maryland apartment complex dated September 5, 2012, noting that plaintiff and defendant were still renting that apartment at that time, as well as copies of monthly checks to the apartment complex drawn on plaintiff's own bank account1 dated from April 2012 through July 2012. Defendant asserted that plaintiff worked in Washington D.C. until July 2012, and provided an email sent from plaintiff's work email address dated July 27, 2012. Defendant also stated that plaintiff's contact with New Jersey, until July 2012, had been limited to visits with her parents. He further asserted that their child had attended preschool in Silver Spring from June 21, 2010 until July 2012, and provided a letter from the director of the school, stating that their son "attended continuously from June 2010 until June 2012 . . . [and] missed a few days in June and attended part of the month of July."

Defendant asserted that plaintiff knew he intended to file for divorce in Maryland, but that she filed for divorce in New Jersey in order to beat him to the courthouse, after asking him to postpone his divorce filing to attend mediation. On August 29, 2012, defendant filed a divorce complaint in Maryland, alleging a twelve-month separation without cohabitation and no reasonable prospect of reconciliation.

Defendant moved to dismiss plaintiff's complaint for lack of jurisdiction, asserting that plaintiff had not been a bona fide resident of New Jersey for at least one year at the time her cause of action arose. See N.J.S.A. 2A:34-10. Plaintiff filed a cross-motion seeking a preliminary injunction to bar defendant from pursuing any divorce action in any other state.

Following oral argument on December 7, 2012, the judge granted defendant's motion and denied plaintiff's cross-motion. On January 25, 2013, the judge issued a written amplification of his decision, R. 2:5-1(b), explaining, in pertinent part

For the court to have had jurisdiction over the plaintiff's New Jersey complaint[,] she would have had to have been a bona fide resident for one year at the time her cause of action accrued. The only count in the complaint is for extreme cruelty. This cause of action requires that the last act of extreme cruelty that forms the basis of the cause of action occur at least three months prior to the filing of the complaint. If the cause of action had to accrue at least three months prior to the filing on July 23, 2012[,] or by April 23, 2012[,][t]hat would mean that Ms. [Appelbaum] had to be a bona fide resident of New Jersey by April 23, 2011. The evidence before the court clearly demonstrates that she was not.

The judge concluded it was irrelevant that plaintiff had filed her New Jersey divorce complaint approximately a month earlier, because both parties lived in Maryland, and so did the child. The judge specifically noted that plaintiff worked in Washington D.C., earned all her income there, and paid taxes on that income in Maryland. Additionally, plaintiff failed to provide the court with documents showing the home address that she gave her Washington D.C. employer.

Alternatively, the judge determined that New Jersey was an inconvenient forum for the divorce proceedings because the child custody proceedings were required to occur in Maryland, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), N.J.S.A. 2A:34-53 to -952

One of the key considerations in the instant case is that Maryland and New Jersey are not equally entitled to entertain jurisdiction over all the issues in controversy. Laying aside for a moment the [one-year] bona fide residency question, Maryland is the home state of the child under the UCCJEA. Mr. Huff filed a complaint for divorce that placed custody and parenting time in issue. In fact[,] the New Jersey complaint filed by Ms. [Appelbaum] did so as well. Under [N.J.S.A. 2A:34 54] "[h]ome state" means 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. . . . The evidence was simply overwhelming that the home state of the parties' child at the commencement of the divorce action was Maryland.

On appeal, plaintiff principally claims there was a material dispute of fact as to where she resided, as she alleges that she resided in New Jersey but commuted to her job in Washington D.C., staying overnight in defendant's apartment and sending the child to daycare in Maryland. She also argues that the judge improperly considered assertions that were not established by legally-competent evidence. Plaintiff further asserts that defendant waived the jurisdictional defense by making a general appearance in New Jersey.3

I.

We first address subject matter jurisdiction. Because the family court decided this motion as a matter of law without a plenary hearing, appellate review is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Thus, the motion court's legal conclusions "are not entitled to any special deference." Ibid. (citation omitted).

"The scope of subject matter jurisdiction is governed by the extent to which the Legislature chooses to allow litigants to seek divorce in this State." Tatham v. Tatham, 429 N.J. Super. 502, 507 (App. Div.), certif. denied, 215 N.J. 486 (2013). Accordingly, "[t]he Superior Court shall have jurisdiction of all causes of divorce, dissolution of a civil union, bed and board divorce, legal separation from a partner in a civil union couple or nullity when either party is a bona fide resident of this State." N.J.S.A. 2A:34-8. Moreover, the party seeking divorce must be a bona fide resident of this State for the one year preceding the commencement of the action. N.J.S.A. 2A:34-10. When the ground for divorce is extreme cruelty, "no complaint for divorce shall be filed until after [three] months from the date of the last act of cruelty complained of in the complaint." N.J.S.A. 2A:34-2(c). In this context, "the concept of bona fide resident is equated with domiciliary." Tatham, supra, 429 N.J. Super. at 508 (internal quotation marks and citation omitted).

A party's domicile is "established by physical presence coupled with the concomitant unqualified intention to remain permanently and indefinitely." Id. (internal quotation marks and citation omitted). To acquire a domicile for divorce matters

[T]here must be a "voluntary" change of residence, the residence at the place chosen for the domicile must be actual, that to the factum of residence there must be added the animus manendi, that that place is the domicile of a person in which he has "voluntarily" fixed his habitation, not for a temporary or special purpose, but with the present "intention" of making it his home, unless or until something which is uncertain or unexpected shall happen to induce him to adopt some other permanent home.

[Id. (citation omitted).]

We find that the record supports the trial court's finding that plaintiff was not a bona fide New Jersey resident during the relevant time period. See Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.) (recognizing that "not every factual dispute that arises in the context of matrimonial proceedings triggers the need for a plenary hearing"), certif. denied, 142 N.J. 455 (1995). Plaintiff paid the rent for the Maryland apartment through July 2012 using checks bearing the apartment's Maryland address, and plaintiff admitted that their child was enrolled in preschool in Maryland through at least part of July 2012. Tellingly, plaintiff failed to submit her paystubs for the relevant time periods in 2011 and 2012, but rather submitted paystubs for pay periods beginning on August 16, 2012. Additionally, plaintiff's 2011 New Jersey tax returns were not filed until October 15, 2012, three months after she filed her New Jersey divorce action.

Regarding plaintiff's argument that the judge improperly considered assertions that were not established by legally-competent evidence, the hearsay rules do not "apply to facts that are not disputed and [are] agreed to by the parties." State v. Neal, 361 N.J. Super. 522, 534 (App. Div. 2003). Plaintiff's certification did not deny the fact that the parties continued to rent their apartment in Silver Spring at the time she filed her divorce complaint nor did she deny the fact that the parties' child was still enrolled at a Silver Spring preschool at that time.

We also reject plaintiff's argument that defendant waived the jurisdictional defense by making a general appearance in New Jersey. Lack of subject matter jurisdiction is a non-waivable defense that may be raised at any time, even on appeal. Macysyn v. Hensler, 329 N.J. Super. 476, 481 (App. Div. 2000).

For the Family Part to possess subject matter jurisdiction over the marriage, plaintiff must have been a bona fide resident of New Jersey for one year at the time her cause of action accrued within the meaning of N.J.S.A. 2A:34-2(c) and -10. However, plaintiff filed her divorce complaint on July 23, 2012, while the overwhelming evidence established that she and the child resided in Maryland up until July 2012. Accordingly, we affirm the trial court's ruling that it lacked subject matter jurisdiction.

II.

The court alternatively dismissed plaintiff's divorce complaint on the basis that New Jersey was an inconvenient forum following the determination that Maryland was the UCCJEA home state, with jurisdiction over the custody and parenting issues. We therefore address the court's determination that Maryland was the UCCJEA home state and dismissal on forum non conveniens grounds.

A.

The UCCJEA, N.J.S.A. 2A:35-53 to -95, governs child custody disputes in New Jersey. Greely v. Greely, 194 N.J. 168, 178 (2008). The UCCJEA was "enacted in an effort to avoid jurisdictional competition and conflict between jurisdictions in favor of cooperation with courts of other states . . . as necessary to ensure that custody determinations are made in the state that can best decide the case." Sajjad, supra, 428 N.J. Super. at 170-71 (internal quotation marks and citation omitted). The UCCJEA prioritizes the use of the child's "home state" as the "exclusive basis for jurisdiction of a custody determination, regardless of the residency of the parents." Id. at 171 (citation and footnote omitted). Under the relevant provisions, "the New Jersey court must determine whether New Jersey is the 'home state' of the child, and if so, whether any prior custody determination has been made by another jurisdiction." Id. at 172.

A child's "home state" is defined under the UCCJEA as "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 . . . [including a] period of temporary absence[.]" N.J.S.A. 2A:34-54. In this regard, "determination of the child's legal residence or domicile is unnecessary as the statutory language 'lived,' included within the definition of home state, connotes physical presence within the state, rather than subjective intent to remain." Sajjad, supra, 428 N.J. Super. at 172-73. The UCCJEA's definition of "home state" allows for the child's "temporary absence" from the home state within the six month period. N.J.S.A. 2A:34-54. Finally, "[w]henever a challenge to the court's ability to exercise subject matter jurisdiction in a custody matter is presented, a Family Part judge must scrutinize the facts and make specific findings supporting the court's assumption or rejection of subject matter jurisdiction." Sajjad, supra, 428 N.J. Super. at 175 (citation omitted).

Guided by these principles, we find no error in the trial court's conclusion that, in accordance with the UCCJEA, Maryland was the home state of the parties' child, and consequently was the proper state to determine child custody issues and related matters. Plaintiff argues that the trial court applied the UCCJEA too rigidly, asserting that "where the child attends day care is not dispositive evidence of jurisdiction[.]" We are not persuaded. As the motion judge noted, "The parties have a young son who attends preschool in Maryland. One assumes that children of . . . tender years are generally enrolled in preschools in the vicinity of where they primarily are." Significantly, the judge concluded that the parties' child not only went to preschool in Maryland until July 2012, but resided there as well. Accordingly, we conclude that the court correctly determined that Maryland was the UCCJEA home state until and unless it declined jurisdiction.

B.

The court alternatively dismissed plaintiff's case under the doctrine of forum non conveniens, noting in particular that New Jersey was an inconvenient forum for the marriage dissolution litigation "given . . . the fact that Maryland is the home state for jurisdiction over the child [under the UCCJEA]," and the fact that the parties had no written custody and parenting time agreement.

"The doctrine of forum non conveniens is an equitable doctrine founded on the notion that a court should decline to exercise jurisdiction over a dispute when its disposition in another jurisdiction will best serve the convenience of the parties and the ends of justice." Tatham, supra, 429 N.J. Super. at 516 (internal quotation marks and citation omitted). In New Jersey, the plaintiff's choice of forum is "entitled to preferential consideration." Yousef v. Gen. Dynamics Corp., 205 N.J. 543, 557 (2011). "Such questions are entrusted to the trial court's sound discretion." Tatham, supra, 429 N.J. Super. at 516 (citation omitted).

In this case, the trial judge's oral decision and written amplification contain a careful analysis of the relevant issues. The judge concluded that litigating the divorce proceedings in New Jersey, while litigating the child custody and parenting issues in Maryland as required by the UCCJEA, would create a "highly inconvenient" situation that is "guaranteed to cause problems," while doubling the costs and expenses to the parties. Moreover, the record reflects that both parties had sufficient financial means to litigate in Maryland, and that plaintiff failed to show it would be a hardship for her to travel to Maryland in connection with this litigation since she claimed that she had previously commuted to Washington D.C. We discern no mistaken exercise of discretion in the court's determination that forum non conveniens provided an additional basis for dismissal of plaintiff's complaint.

Affirmed.

1 The checks bore the parties' Silver Springs address.

2 The UCCJEA governs subject matter jurisdiction over child custody proceedings. Sajjad v. Cheema, 428 N.J. Super. 160, 170 (App. Div. 2012).

3 We note that since the filing of this appeal, on November 8, 2013, the Maryland court entered an order granting defendant an absolute divorce and deciding the child custody issues.