MAYRA LANDRAU v. JIMMY HERNANDEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MAYRA LANDRAU,

Plaintiff-Appellant,

v.

JIMMY HERNANDEZ,

Defendant-Respondent.

________________________________

Argued May 11, 2016 Decided May 23, 2016

Before Judges Ostrer, Haas and Manahan.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FD-13-0184-13.

Amy Sara Cores argued the cause for appellant (Cores & Associates, LLC, attorney; Ms. Cores, on the brief).

Respondent has not filed a brief.

PER CURIAM

Plaintiff Mayra Landrau appeals from a April 1, 2014 Family Part order, denying her request that the court exercise jurisdiction over an ongoing custody dispute concerning the parties' child that has been pending in the State of Ohio since April 21, 2001.1 We affirm.

I.

We begin by referencing the essential background facts set forth in the November 25, 2015 decision of the Supreme Court of Ohio, Ohio ex rel. M.L. v. O'Malley (M.L. III), 45 N.E.3d 971 (Ohio 2015), and in the decisions of other Ohio courts. In M.L. III, the court applied the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA),2 and affirmed the decision of Ohio's Eighth District Court of Appeals denying plaintiff's request for a writ of prohibition that would have "prohibit[ed] the Cuyahoga County Juvenile Court from continuing to exercise jurisdiction over [the parties'] minor child" in the custody proceedings then pending in Ohio. Id. at 972.

Plaintiff and defendant Jimmy Hernandez were never married. Id. at 973. They have one child, born on February 22, 2010. Ibid. The parties both lived in Ohio, as did their child, for the six months prior to the commencement of this action on April 21, 2011. Id. at 973-75

On April 21, 2011, defendant filed an application in the Cuyahoga County juvenile court to determine custody of the parties' child. Id. at 973. On May 1, 2011, while that application was pending, plaintiff moved with the parties' child to New Jersey. Ibid.

Plaintiff did not file an appearance in the Ohio action. Following a trial, the juvenile court magistrate issued an order "designat[ing] [defendant] as the residential parent and legal custodian of" the child. Ohio ex rel. M.L. v. O'Malley (M.L. I), No. 101191, 2014-Ohio-3927, 6 (Ohio Ct. App. September 10, 2014). "Under the authority of [the magistrate's] order," plaintiff returned with the child to Ohio and the child was "placed in [defendant's] custody on December 3, 2011." M.L. III, supra, 45 N.E. 3d at 973.

On December 5, 2011, the juvenile court judge adopted the magistrate's decision. M.L. I, supra, 2014-Ohio-3927 at 6. Plaintiff appealed that decision to the Ohio court of appeals. Ibid. On May 24, 2012, the court of appeals found that defendant "never perfected service on [plaintiff] and ordered the juvenile court to vacate the custody order and return [the child] to" plaintiff. Id. at 7 (citing In re M.A.H., No. 97963, 2012-Ohio-2318, 23, 25 (Ohio Ct. App. May 24, 2012)). Significantly, however, the court of appeals "explicitly declined to order the trial court to dismiss" the Ohio custody proceeding. M.L. III, supra, 45 N.E. 3d at 975 (citing M.A.H., supra, 2012-Ohio-2318 at 27-28). Defendant complied with the court of appeals' directive and returned the child to plaintiff who, "sometime after" the court's decision, took the child with her to New Jersey. M.L. I, supra, 2014-Ohio-3927 at 7.

Plaintiff subsequently filed an application in the Family Part for child support.3 On August 28, 2012, the trial judge ordered defendant to pay plaintiff $70 per week in child support, plus $10 per week toward arrears. The order stated that defendant consented to New Jersey's jurisdiction to set child support and notes that the "[p]arties testified that [defendant] acknowledged paternity in Ohio."4 The order did not mention the pending custody proceedings in Ohio or make any findings or determinations concerning custody or parenting time.

On July 6, 2012, defendant filed a second application to determine custody in the Ohio juvenile court. M.L. III, supra, 45 N.E. 3d at 973. The court clerk assigned a new docket number to the matter but, as the Supreme Court of Ohio held, defendant's application was simply a continuation of the custody action that defendant filed on April 11, 2011. Id. at 973, 975.

Plaintiff filed a motion to dismiss the Ohio custody proceeding, but the juvenile court magistrate and judge each denied her request. M.L. I, supra, 2014-Ohio-3927 at 8. Plaintiff appealed the juvenile court's decision to the Ohio court of appeals. Ibid. On April 11, 2013, the court of appeals dismissed plaintiff's appeal because the juvenile court's order was interlocutory. Ibid.

On September 27, 2013, plaintiff filed a pro se application in the Family Part "to establish sole custody (legal and residential)" of the parties' child. On November 7, 2013, defendant filed a motion in the Ohio juvenile court seeking parenting time with the child. Plaintiff filed a motion to dismiss defendant's application.

On December 12, 2013, plaintiff's attorney filed a "supplement" to her September 27, 2013 Family Part pleading. In this "supplement," plaintiff sought an order: (1) granting her sole legal and residential custody of the parties' child; (2) establishing that New Jersey was the child's home state; and (3) requiring that any parenting time for defendant be supervised and take place in New Jersey.

On February 3, 2014, the Ohio juvenile court judge denied plaintiff's motion to dismiss the pending Ohio custody matter, and issued an order granting defendant parenting time with the child "every three (3) weeks on Fridays until Sundays beginning the weekend of February 7, 2014." The judge ordered plaintiff "to transport the child" to Ohio for defendant's parenting time.5 The judge also ordered the parties to participate in the court's "Diagnostic Clinic[,]" and scheduled a pretrial hearing for February 28, 2014. That hearing had to be "continued by [the magistrate] based upon plaintiff's failure to cooperate with the [Ohio court's] [D]iagnostic [C]linic."

On March 31, 2014, plaintiff filed a complaint "in the [Ohio] court of appeals seeking a writ of prohibition against" the Ohio juvenile court, its magistrate, and its judge to prohibit them from continuing to exercise jurisdiction over the pending custody dispute. M.L. III, supra, 45 N.E. 3d at 973.

On April 1, 2014, the Family Part judge denied plaintiff's application for sole custody of the child. Prior to rendering her decision, the judge communicated by telephone with the Ohio magistrate as permitted by N.J.S.A. 2A:34-62(a) and O.R.C.A. 3127.09(A).6 Id. at 975.

In a thorough written opinion, the judge reviewed the provisions of the UCCJEA, and found that Ohio, rather than New Jersey, had jurisdiction of the custody dispute. The judge noted that the custody proceeding commenced in Ohio on April 21, 2011, when defendant filed his application for custody in the Ohio juvenile court. At that time, both parties and their child lived in Ohio and, therefore, Ohio was clearly the "home state" under the UCCJEA.

The judge observed that the Ohio courts "ha[d] overseen substantial litigation over the course of the last two (2) years[,]" and found that Ohio never declined or relinquished jurisdiction of the matter. The judge explained

In this case, the Ohio [c]ourt continues to exercise jurisdiction and there is both a significant connection to the State of Ohio as well as substantial evidence existing in the State of Ohio to determine the issue of custody. The parties in this case[] have extensively litigated the matter in Ohio. The child was born in Ohio and Ohio was the child's home state when the parties instituted their actions in Ohio.

Because Ohio had maintained exclusive jurisdiction over the custody dispute, the judge found that a New Jersey court could not modify that state's custody determinations in this matter. On April 8, 2014, plaintiff filed a motion for reconsideration of the Family Part's order. The judge conducted oral argument on the motion on July 15, 2014. Toward the end of the argument, the judge stated during colloquy that she was inclined to wait for the Ohio court of appeals to decide plaintiff's application for a writ of prohibition before deciding the motion. In response, plaintiff's attorney asked the judge whether she would consider "stay[ing] the reconsideration hearing or at least keep it on an open docket" until the Ohio court of appeals decided the matter. Based upon this request, the judge issued an order on July 15, 2014, denying plaintiff's motion for reconsideration without prejudice, and stated in the order that "[t]his denial is not a decision on the merits of the claim as there is a writ of prohibition pending in Ohio."

On August 26, 2014, plaintiff filed a notice of appeal from the Family Part's April 1, 2014, and July 15, 2014 orders.

Back in Ohio, defendant filed a motion for summary judgment in plaintiff's writ of prohibition action, and he submitted a copy of the Family Part's April 1, 2014 order to the court of appeals. M.L. III, supra, 45 N.E. 3d at 973. Plaintiff then amended her complaint, and "continu[ed] to assert that the case should proceed in New Jersey because New Jersey had become the child's home state by the time [defendant] filed his application in Cuyahoga County." Ibid.

On September 10, 2014, the Ohio court of appeals denied plaintiff's application for a writ of prohibition. M.L. I, supra, 2014-Ohio-3927 at 29. The court found that both parties and their child lived in Ohio when defendant commenced the proceeding seeking custody. Id. at 20. Thus, Ohio had jurisdiction of the matter under the UCCJEA when the initial custody determination was made and has retained jurisdiction since that time. Ibid.

The court rejected plaintiff's argument that Ohio lost jurisdiction of the matter when the court of appeals invalidated the December 5, 2011 order for lack of service. Ibid. The court noted that the parties continued to litigate the issue of custody in Ohio, and found that "[e]mploying [plaintiff's] convoluted application of the law would appear to subvert the purpose of the UCCJEA, which is to avoid interstate jurisdictional custody conflicts." Id. at 21.7

On December 3, 2014, the Supreme Court of Ohio denied plaintiff's motion to stay the juvenile court's continued consideration of the custody dispute, including the scheduling of a trial date and other proceedings. Ohio ex rel. M.L. v. O'Malley (M.L. II), 20 N.E.3d 729 (Ohio 2014).

On November 25, 2015, the Supreme Court of Ohio affirmed the decision of the court of appeals. M.L. III, supra, 45 N.E. 3d at 972-73. The court again rejected plaintiff's contention that Ohio lost jurisdiction when the December 5, 2011 order was vacated, finding that the juvenile court's assignment of a new docket number to the case did "not negate the fact that [defendant's] original custody action was filed when [the child's] home state was undoubtedly Ohio." Id. at 975. Because Ohio "appears to have been the home state on the date of the commencement of the proceeding," the court concluded that the juvenile court had "jurisdiction under [the UCCJEA] to make an initial determination regarding custody." Id. at 975.8

II.

On appeal, plaintiff argues that the Family Part judge erred in declining to wrest jurisdiction of the parties' custody dispute from Ohio pursuant to the UCCJEA. She also alleges that the judge did not make a "record" of her communication with the Ohio juvenile court magistrate, and "failed to place adequate findings of fact and conclusions of law on the record." We disagree.

Because the Family Part's decision was based on its interpretation of the law, not the facts of the case, our review is de novo. Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995). The parties' custody dispute is controlled by the UCCJEA, which was in effect in both states when defendant filed his April 21, 2011 application for custody in Ohio.

"The [UCCJEA] should be interpreted so as to avoid jurisdictional competition and conflict and require cooperation with courts of other states as necessary to ensure that custody determinations are made in the state that can best decide the case." Griffith v. Tressel, 394 N.J. Super. 128, 138 (App. Div. 2007). A primary objective of the UCCJEA is to prioritize home state jurisdiction for a state assuming jurisdiction of a child custody dispute. Dalessio v. Gallagher, 414 N.J. Super. 18, 22 (App. Div. 2010).

In relevant part, N.J.S.A. 2A:34-54 defines "[h]ome state" 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." Accord O.R.C.A. 3127.01(B)(7). The UCCJEA section that permits a state to assume initial child custody jurisdiction over an interstate custody dispute provides in pertinent part

a. Except as otherwise provided . . . , 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 section, 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 . . . and

(a) the child and the child's parents, or the child and at least one parent or 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;

. . . .

b. Subsection a. of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this State.

[N.J.S.A. 2A:34-65; accord O.R.C.A. 3127.15.]

Based upon the clear language of these statutes, Ohio was the "home state" because both parties and their child lived in Ohio on April 21, 2011, the date defendant commenced the custody action in the Cuyahoga County juvenile court, and had been living there since the child's birth in February 2010. Thus, Ohio properly exercised jurisdiction over the dispute concerning the custody of the parties' child from April 21, 2011 forward.

Ohio never relinquished or declined jurisdiction after that date and, therefore, the Family Part could not usurp that jurisdiction. As we stated in Dalessio,

[U]nless the home state declines jurisdiction, a New Jersey court cannot assume "significant connection" jurisdiction over an initial child custody determination under N.J.S.A. 2A:34-65(a)(2) if another state has jurisdiction under N.J.S.A. 2A:34-65(a)(1) either as (1) the child's home state or (2) the child's home state within six months prior to the commencement of the proceeding and the child is absent from the home state but a parent continues to live in that state.

[Dalessio, supra, 414 N.J. Super. at 23.]

The UCCJEA defines "[i]nitial determination" as "the first child custody determination concerning a particular child"; "[c]hild custody determination" as "a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child[,]" but "not . . . a provision relating to child support"; and "commencement" as "the filing of the first pleading in a proceeding." N.J.S.A. 2A:34-54; O.R.C.A. 3127.01. The Ohio juvenile court made the initial custody determination when the juvenile court magistrate entered the December 3, 2011 order, which the juvenile court judge adopted on December 5, 2011. Thereafter, Ohio never relinquished jurisdiction of the dispute and, pursuant to N.J.S.A. 2A:34-66 and O.R.C.A. 3127.16, maintained "exclusive, continuing jurisdiction over the" matter.

Thus, we agree with the Supreme Court of Ohio, the Ohio court of appeals, the Ohio juvenile court and, most importantly, with the Family Part judge that Ohio, rather than New Jersey, had exclusive jurisdiction over the parties' long-running custody dispute. That is the result compelled by the UCCJEA.

Plaintiff raises several contentions against this result, but none of them are persuasive. As she did before the Supreme Court of Ohio, plaintiff contends that Ohio lost jurisdiction of the custody dispute when the Ohio court of appeals vacated the December 5, 2011 order. However, as the Ohio Supreme Court found in its recent decision, the court of appeals did not dismiss the pending custody proceeding; the fact that the juvenile court subsequently assigned a new docket number to the matter was legally inconsequential; and defendant's "original custody action was filed when [the parties' child's] home state was undoubtedly Ohio." M.L. III, supra, 45 N.E. 3d at 975. Thus, Ohio has retained jurisdiction over the dispute since it was commenced in April 2011.

Plaintiff also argues that she "commenced" a child custody proceeding in New Jersey when she filed her application for child support on June 12, 2012. She also argues that the Family Part addressed custody in its August 28, 2012 order because it established defendant's paternity of the child. These arguments fail for three reasons. First, applications and provisions concerning child support are explicitly excluded from the UCCJEA's definition of "child custody determination." N.J.S.A. 2A:34-54; O.R.C.A. 3127.01(B)(3). Therefore, plaintiff did not commence a custody proceeding when she sought child support in New Jersey.

Second, the child's paternity was first established in Ohio shortly after the child's birth in Ohio when the parties "signed and filed a voluntary acknowledgement of paternity affidavit establishing [defendant] as [the child's] legal father." M.A.H., supra, 2012-Ohio-2318 at 2. Thus, plaintiff's contention is factually incorrect. Finally, as discussed above, Ohio had jurisdiction of the custody dispute based on the fact that defendant commenced the action in Ohio in April 2011 while both parties resided in that state with their child.

On the question of residence, plaintiff unpersuasively argues that Ohio lost jurisdiction of the custody dispute when she left that state with the child in May 2011. As noted above, the law is clear that "the child's time within a jurisdiction after a custody proceeding is initiated is irrelevant when determining the child's home state." Sajjad v. Cheema, 428 N.J. Super. 160, 173 (App. Div. 2012). Here, Ohio obtained jurisdiction when defendant filed his application for custody on April 21, 2011, before plaintiff left Ohio with the child.

Plaintiff's argument that Ohio lost jurisdiction when she took the child to New Jersey shortly after the Ohio court of appeals' May 24, 2012 decision also lacks merit. The court did not dismiss the pending custody case and, therefore, Ohio retained jurisdiction of the matter.

Even if this were not the case, defendant renewed his application for custody and parenting time on July 6, 2012. Within the six months prior to that date,9 the parties' child had lived with defendant in Ohio. As we made clear in Dalessio, supra, a child does not have to live in a state for six consecutive months prior to a parent commencing a custody proceeding in that state. 414 N.J. Super. at 25. When, as here, one parent removes the child from a state, and the other parent remains behind, that state will maintain jurisdiction if the child lived in the state "within six months before the commencement of the []custody proceeding[.]" Id. at 26 (quoting N.J.S.A. 2A:34-65(a)(1)); accord O.R.C.A. 3127.15(A)(1). Thus, Ohio's jurisdiction was not extinguished by plaintiff's removal of the child from that state.

Plaintiff next argues that this matter should be remanded to the Family Part because the trial judge allegedly failed to permit the parties to "participate" when she communicated with the Ohio juvenile court magistrate to discuss the case, and failed to properly "record" that communication. These arguments also lack merit. Contrary to plaintiff's argument, N.J.S.A. 2A:34-62(b) does not require that the parties participate when a judge in one jurisdiction communicates with a judge in another state. The statute clearly states that "[t]he court may allow the parties to participate in the communication." Ibid. (emphasis added); accord O.R.C.A. 3127.09(B). Thus, participation by the parties is not required.

Instead, N.J.S.A. 2A:34-62(b) states that, if the parties do not participate, they "shall be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made." Accord O.R.C.A. 3127.09(B). That clearly occurred in this case. Plaintiff submitted an application and a supplemental application for the court's consideration prior to the Family Part's April 1, 2014 decision finding that Ohio should maintain jurisdiction of the custody dispute.

Plaintiff's argument that the judge did not make a record of the communication as required by N.J.S.A. 2A:34-62(d) lacks support in the record. At oral argument on plaintiff's aborted motion for reconsideration, her attorney asserted that "no transcript was made of that hearing" in an apparent reference to the trial judge's telephone communication with the Ohio magistrate. The attorney based his representation on what he had been told by plaintiff's attorneys in Ohio. However, the judge immediately corrected the attorney, advising him that she "ha[d] a distinct recollection of speaking with [the magistrate]. I thought we were on CourtSmart . . . I don't know why there . . . isn't a transcript."10 Nothing in the record indicates that plaintiff's attorney followed up by requesting a transcript from the Family Part clerk's office or from the Cuyahoga County juvenile court.

Moreover, the judge stated in her April 1, 2014 opinion that she "consult[ed] with the magistrate in Ohio" and "[t]hat [m]agistrate advised [her] that the case was rescheduled and would proceed as quickly as possible." Thus, the parties were fully aware of the nature of the communication. In any event, the Ohio court of appeals plainly stated in its September 10, 2014 decision that "[t]here is evidence that the Ohio court communicated with the New Jersey court concerning this matter." M.L. I, supra, 2014-Ohio-3927 at 9. Thus, we reject plaintiff's contention on this point.

Plaintiff next contends that the Family Part should have found that it was a "more convenient forum" for the parties than Ohio. Again, we disagree. The UCCJEA expressly vests the home state, in this case Ohio, with the authority to make such decisions. See N.J.S.A. 2A:34-71(a) (stating that "a court of this State that has jurisdiction . . . to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum"); accord O.R.C.A. 3127.21(A). As the Family Part correctly found, New Jersey did not have jurisdiction; Ohio had exclusive, continuing jurisdiction; and Ohio had not determined that its courts, where the parties had been litigating since 2011, provided an inconvenient forum for the resolution of the parties' dispute.

Finally, plaintiff argues that the Family Part judge did not make adequate findings of fact and conclusions of law supporting her determination to decline jurisdiction. This argument plainly lacks merit. The judge prepared a thorough decision fully explaining the basis of her decision. Even if this were not the case, however, our standard of review in this matter is de novo. Manalapan Realty, supra, 140 N.J. at 378.

Affirmed.

1 Plaintiff's notice of appeal stated that she was also appealing from a July 15, 2014 order concerning her motion for reconsideration. At plaintiff's request, however, the trial judge did not render "a decision on the merits of" plaintiff's motion and, instead, denied it without prejudice. Plaintiff does not specifically address this order in her appellate brief. Therefore, any issue concerning the July 15, 2014 order has been abandoned. Grubb v. Borough of Hightstown, 353 N.J. Super. 333, 342 n.1 (App. Div. 2002) (explaining that issues raised in notice of appeal but not briefed are abandoned).

2 New Jersey adopted the UCCJEA in 2004, N.J.S.A. 2A:34-53 to -95, and Ohio adopted it in 2005, Ohio Rev. Code Ann. (O.R.C.A.) 3127.01 to -3127.53 (LexisNexis 2016). See Table of Jurisdictions Wherein [the UCCJEA] Has Been Adopted (preceding N.J.S.A. 2A:34-53).

3 Plaintiff represents in her brief that she filed the application for child support in New Jersey on June 14, 2012. However, she has not provided us with a copy of her application.

4 While plaintiff now argues that this notation constituted a finding by the Family Part establishing the child's paternity for the first time, the parties "signed and filed a voluntary acknowledgement of paternity affidavit [in Ohio shortly after the child's birth] establishing [defendant] as [the child's] legal father." M.A.H., supra, 2012-Ohio-2318 at 2. Therefore, the child's paternity was not an issue, and was not determined, in the Family Part's August 28, 2012 child support order.

5 Plaintiff was employed as a flight attendant and had access to free transportation to and from Ohio.

6 The judge stated that the magistrate "advised [her] that the [Ohio] case was rescheduled and would proceed as quickly as possible."

7 The court also noted that plaintiff could raise the issue of jurisdiction again on appeal from any adverse decision of the juvenile court. Id. at 29.

8 The court also observed that the Family Part judge communicated with the juvenile court magistrate concerning the matter and declined New Jersey jurisdiction of the matter. Id. at 975.

9 Defendant had custody of the child between December 3, 2011 and May 24, 2012. M.L. I, supra, 2014-Ohio-3927 at 20.

10 "CourtSmart" is the name of the judiciary's "digital recording technology" and is designed "to ensure an accurate record for every court event." The system consists of "both a primary and a back-up recording server. The primary server holds the court record. The back-up runs automatically during court hours and captures all courtroom activity." CourtSmart - Digital Audio Recording, N.J. Cts., http://www.judiciary.state.nj.us/courtsmart /index.htm (last visited May 3, 2016).