RICHARD W. FROHMAN v. JAIMIE P. FROHMAN, K/N/A JAMIE FALLON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1129-05T11129-05T1

RICHARD W. FROHMAN,

Plaintiff-Respondent,

v.

JAIMIE P. FROHMAN, K/N/A

JAMIE FALLON,

Defendant-Appellant.

________________________________________________________________

 

Argued October 17, 2006 - Decided November 14, 2006

Before Judges Skillman and Holston, Jr.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FM-01-1169-04C.

Donald F. Scholl, Jr. argued the cause for appellant.

Michael Mallin argued the cause for respondent.

PER CURIAM

Plaintiff, Richard W. Frohman, and defendant, Jaimie P. Frohman (now known as Jamie Fallon), were divorced in Atlantic County by dual final judgment of divorce (judgment) dated March 9, 2005. The judgment granted defendant sole custody of Gianna, age seven, and Richard, age six, the minor children of the marriage. In May 2004, defendant and the minor children relocated from Galloway Township, Atlantic County, to Flemington, Hunterdon County, where defendant had established a permanent residence.

On April 30, 2005, the parties entered into a temporary parenting contact agreement (TPCA), which provided plaintiff with unsupervised overnight visitation with the children on alternate weekends, with pick-up of the children by plaintiff in Flemington, on Friday, and pick-up of the children by defendant in Egg Harbor Township, Atlantic County, on Sunday, for their return to Flemington. On August 3, 2005, the parties entered into a consent order for parenting contact (consent order) which incorporated the TPCA and provided plaintiff extended visitation during the summer months and established a holiday visitation schedule.

On August 19, 2005, Richard underwent a tonsillectomy and had postoperative complications. As a result, defendant informed plaintiff that his next scheduled visitation weekend with Richard needed to be made up on a different date. Plaintiff responded stating that he would like to have visitation with Gianna on his regularly scheduled weekend, but defendant refused to make Gianna available, claiming that Gianna was frightened and did not want to go.

On August 30, 2005, plaintiff filed a motion to enforce litigant's rights. Defendant filed a cross-motion for change of venue from Atlantic County to Hunterdon County, for all subsequent post-judgment motions. Defendant claimed that venue should be changed because: (1) defendant's residence is in Flemington; (2) the children are both enrolled in an elementary school in Flemington; (3) the children are enrolled in dance and karate in Flemington; (4) defendant is enrolled full-time at Raritan Valley Community College; and (5) after entry of the judgment, any continuing ties with Atlantic County were eliminated.

After oral argument, the judge granted plaintiff's motion for make-up parenting time, but denied defendant's motion for change of venue to Hunterdon County. The judge stated:

[T]he Court will not change venue to Hunterdon County. There are no plenary hearings scheduled at this point. There is no litigation that is necessary. Hopefully no more litigation will be necessary. There's no witnesses that are going to be called. There's no future litigation scheduled.

And although I reject the plaintiff's argument that it's impermissible to change the venue and rule that it's within the sound discretion of the Court to make rulings on the arguments for non convenience or inconvenient forum, those considerations I don't find to be present at this point and I see no basis to change the venue now.

Defendant appeals that portion of the Family Part's September 23, 2005 order denying defendant's cross-motion for change of venue. We affirm.

Pursuant to Rule 5:2-2, change of venue in Family Part actions is governed by Rule 4:3-3. Rule 4:3-3(a) provides in applicable part:

In actions in the Superior Court a change of venue may be ordered by . . . the presiding judge of the Family Part, . . . (3) for the convenience of parties and witnesses in the interest of justice; or, (4) in Family Part post-judgment motions, if both parties reside outside the county of original venue and application is made to the court by either party to change venue to a county where one of the parties now resides.

The trial judge considered the provisions of the rule, and noted that there were no plenary hearings scheduled, especially any hearings where the testimony of witnesses and the presence of the parties' children would be involved. The judge, therefore, declined to grant defendant's change of venue request. Although the judge recognized that plaintiff still resided within Atlantic County, the county of the original venue, the judge determined that fact alone did not preclude the court from granting a motion for a change of venue. However, the judge found that the "convenience of the parties and witnesses in the interest of justice" was not implicated "at this point" and denied the motion.

Defendant relies on Loonan v. Marino, 179 N.J. Super. 164 (Ch. Div. 1981) in support of her contention that the trial judge abused his discretion in denying her change of venue request. However, Loonan involved a request for change of custody, not enforcement of the parties parenting agreement. Loonan, supra, 179 N.J. Super. at 165. In Loonan, the father filed for a change of custody of two children. Ibid. The father's counsel stated at oral argument that the trial could last as long as three weeks. Id. at 166. The trial court considered the nature of a change of custody plenary hearing in reaching its decision to grant a change of venue. It recognized that court appearances could be expected for the children, as well as for the witnesses who know the children, such as friends, teachers, doctors and religious leaders. Id. at 171. The court noted the importance of "what is convenient to the children and the potential witnesses who are familiar with them so that the court can be assured of receiving all of the relevant and necessary information about the children." Id. at 171.

In addition, the children's mother was afflicted with multiple sclerosis (MS). Id. at 166. She claimed that her condition would present a substantial physical problem if she were required to travel for a protracted trial. Ibid. The court applied the doctrine of forum non conveniens and transferred venue to Monmouth County from Somerset County. The court stated:

[V]enue shall be transferred to Monmouth County because the two children live closer to the Monmouth County courts (and this is especially important here because they must be interviewed by the judge, see N.J.S.A. 9:2-4; Callen v. Gill, 7 N.J. 312, 319 (1951); the friends, teachers, doctors and religious leaders of the children who will probably be called as witnesses also live closer to the Monmouth County courts; and since the mother is afflicted with MS it will be difficult for her to travel to Somerset County for an extended trial.

[Id. at 172-73.]

Because custody trials often involve witness testimony, the factors contained in Rule 4:3-3(a)(3) are implicated in a change of venue motion in such instances. However, visitation motions are usually decided after oral argument based on the certifications provided and without the necessity for witness testimony. R. 5:5-4.

Clearly, the factors present in Loonan were not present here. Plaintiff did not seek a change of custody for Gianna and Richard but enforcement of the parties' visitation agreement. There was no hearing anticipated, which would necessitate the children being interviewed by the judge. Nor was there an application pending that would require testimony from witnesses from Hunterdon County, who would be inconvenienced if required to travel to Atlantic County. Additionally, defendant is not disabled by injury or illness.

Defendant argues that the principles governing the complex statutory scheme for interstate jurisdictional issues should govern the determination for change of venue motions post divorce in the Family Part. Defendant contends that this court should establish a bright-line rule that post-judgment Family Part motions should be venued in the county where the children of the marriage reside. Defendant relies by way of analogy on the Uniform Child Custody Jurisdiction and Enforcement Act, N.J.S.A. 2A:34-53 to -95, which prescribes jurisdiction for child custody motions where the parties reside in different states. The relevant part of this Act states:

Except as otherwise provided in section 16 of this act, a court of this State that has made a child custody determination consistent with section 13 or 15 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.

[N.J.S.A. 2A:34-66.]

Article VI, Section II, Paragraph 3 of the New Jersey Constitution charges the Supreme Court with the responsibility for making rules governing the practice and procedures in and the administration of all of the courts in the State. The Court, under this authority, has set forth the rules pertaining to venue in the Superior Court. Issues of venue in the Superior Court are governed by Rule 4:3 of the New Jersey Court Rules. Therefore, because the Supreme Court has the sole authority to promulgate the rules and procedures regarding venue, it is not within our power to establish such a bright-line rule.

A trial court's exercise of discretion "may be disturbed only if it is so wholly insupportable as to result in a denial of justice." Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528 (App. Div.) (quoting Goodyear Tire and Rubber Co. v. Kin Props., Inc., 276 N.J. Super. 96, 106, certif. denied, 139 N.J. 290 (1994)), certif. denied, 144 N.J. 174 (1996). It is not the function of an appellate court "to decide whether the trial court took the wisest course, or even the better, course, since [t]o do so would merely be to substitute our judgment for that of the lower court. The question is only whether the trial judge pursues a manifestly unjust course." Gillman, supra, 286 N.J. Super. at 528 (quoting Gittleman v. Cent. Jersey Bank & Trust Co., 103 N.J. Super. 175, 179 (App. Div. 1967), rev'd on other grounds, 52 N.J. 503 (1968).

We are satisfied that the motion judge's discretionary determination of defendant's change of venue motion was an appropriate exercise of the judge's discretion and is entitled to this court's substantial deference. Accordingly, we affirm the court's denial of defendant's change of venue motion.

We add the following: Defendant contends that because the September 23, 2005 order did not indicate whether the court's denial of her change of venue was without prejudice, that the court's order becomes an adjudication on the merits and will preclude her, if an appropriate post-judgment situation arises, from renewing a motion for change of venue. We disagree. The motion judge made clear that he did not find Atlantic County to be an inconvenient forum "at this point and I see no basis to change the venue now."

We are satisfied that the judge intended his decision to be without prejudice to renewal if and when a proper situation under Rule 4:3-3(a)(3) arises, which would make continued venue in Atlantic County inconvenient for "parties and witnesses in the interest of justice." R. 4:3-3(a)(3). "Where there is a conflict between a judge's written or oral opinion and a subsequent written order, the former controls." Taylor v. Int'l Maytex Tank Terminal Corp. -- Bayonne, 355 N.J. Super. 482, 498 (App. Div. 2002).

Affirmed.

 

As is indicated in the Forward to the 2007 edition of the New Jersey Court Rules "[t]o aid it in the rule-making process, the Supreme Court has appointed committees to study and make recommendations, and has solicited the assistance of the bench and bar generally. It has also provided for an annual Judicial Conference, representative not only of the legal profession but also the legislative and executive branches of the government and of the lay public, to consider suggested improvements in the practice, procedure and administration of the courts. From time to time amendments to the rules have been promulgated as the need appeared.

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A-1129-05T1

November 14, 2006