MICHAEL BOGHOSIAN v. TERRI SUE BOGHOSIAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5101-07T25101-07T2

MICHAEL BOGHOSIAN,

Plaintiff-Respondent,

v.

TERRI SUE BOGHOSIAN,

Defendant-Appellant.

______________________________________

 

Argued January 13, 2009 - Decided

Before Judges Graves and Grall.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Hudson County, Docket No. FM-09-1515-08.

Bonnie C. Frost argued the cause for appellant (Einhorn, Harris, Ascher, Barbarito & Frost, attorneys; Ms. Frost

and Linda A. Mainenti-Walsh, on the brief).

Jan L. Bernstein argued the cause for respondent (Riker Danzig Scherer Hyland & Perretti, attorneys; Ms. Bernstein, of counsel; Kelly S. Crawford, on the brief).

PER CURIAM

On January 10, 2008, one year after leasing an apartment in Hoboken, plaintiff Michael Boghosian filed a complaint for divorce asserting eighteen months separation and irreconcilable differences. N.J.S.A. 2A:34-2d, i. He also sought equitable distribution of the marital assets and counsel fees. By leave granted, defendant Terri Sue Boghosian appeals from the denial of her motion to dismiss that complaint. Alleging that plaintiff is not a bona fide resident of New Jersey and that she has no contacts with the forum, defendant sought dismissal based on lack of jurisdiction to adjudicate the cause of action or distribute the marital property.

The facts are drawn from the certifications submitted in support of and opposition to the motion. The Boghosians married in Hempstead, New York in 1980. Since 1981, plaintiff has worked for Merrill Lynch in New York City. The parties' three children were born in 1982, 1984 and 1989. In 1994, the Boghosians purchased a home in Garden City, New York. They subsequently acquired a second home in Westhampton, New York. There is no evidence that they hold title to real estate other than their properties in New York.

The Boghosians separated in 2000. Defendant remained in their Garden City home, and plaintiff moved to Queens. In May 2003, plaintiff filed a complaint for divorce in Nassau County, New York, but in March 2006, a jury found that plaintiff failed to establish grounds for divorce. Plaintiff leased his Hoboken apartment in December 2006. He filed this complaint in January 2008.

The affidavit offered to prove service of the summons and complaint was filed on March 26, 2008. An addendum reports the following. The process server attempted to serve defendant at her home on five days in February 2008 at different hours. In every instance, defendant either refused to come to the door or did not respond. On the final attempt, the process server, identifying defendant by comparing her appearance with a photo plaintiff provided, saw defendant inside her home. They spoke, as they had on at least one prior occasion, over the house-intercom system. According to the process server, defendant refused to come to the door and was told that papers from a New Jersey attorney would be left outside. Although defendant denies refusing the summons and being told it would be left, she admits saying she could not come to the door and does not deny receipt of the papers left there.

There is a dispute about plaintiff's intention to make New Jersey his home. According to defendant, plaintiff told her he plans to leave his apartment in Hoboken as soon as he receives a judgment of divorce. But plaintiff expresses "an unqualified intention to remain permanently and indefinitely in New Jersey." He commutes between Hoboken and his New York office and moved from Queens to Hoboken because the trip is less expensive and stressful and also because his apartment is closer to friends and the parties' youngest child, who is attending college in Pennsylvania. Although plaintiff is registered to vote in New Jersey, files tax returns from that address and intends to renew his lease or purchase a residence in this State, in May 2008 plaintiff still had his New York driver's license and car insurance. Since that time, he has obtained a New Jersey driver's license, insured his car in New Jersey and shares his residence with the parties' eldest son. Plaintiff receives mail in Hoboken and New York, but much of the correspondence delivered to the New York residence concerns the real property in New York. Plaintiff maintains memberships in country and beach clubs in New York, which he keeps for the benefit of the parties' youngest child.

In addition to their real estate in New York, the Boghosians have various accounts with Merrill Lynch and CitiBank, some held jointly and some individually. Both entities have a presence in New Jersey. The total value of the Boghosians' financial assets exceeds the estimated value of their real estate in New York. The Boghosians' personal property includes a boat and five cars.

After considering the papers submitted on the motions and argument of counsel, the trial court denied defendant's motion to dismiss for lack of jurisdiction. The court concluded that defendant had been properly served, that plaintiff was living in Hoboken and that the court did not require personal jurisdiction over defendant to adjudicate equitable distribution of the marital assets. The order denying defendant's motion to dismiss and for counsel fees was entered on May 9, 2008. We granted defendant's timely motion for leave to appeal on June 26, 2008, and the trial court granted a stay pending appeal on August 7, 2008. Defendant objects to the trial court's ruling on each of the issues.

Defendant's argument about service of the summons and complaint lacks sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E). Under either version of the encounter between defendant and the process server, service was not fatally defective.

Personal service of a party outside the State is governed by Rule 4:4-4(b). See R. 5:4-1(a) (providing for service in accordance with Rule 4:4). It may be accomplished by personal service in another state in accordance with Rule 4:4-4(b)(1)(A). Delivery of "a copy of the summons and complaint to the individual personally, or by leaving a copy thereof at the individual's dwelling place . . . with a competent member of the household" suffices. R. 4:4-4(a)(1).

One offered a summons cannot avoid service by declining to take physical possession. Peoples Trust Co. of Bergen County v. Kozuck, 98 N.J. Super. 235, 237-39 (Law Div. 1967), aff'd o.b., 103 N.J. Super. 151 (App. Div.), certif. denied, 53 N.J. 78 (1968). Our Supreme Court has disapproved formalistic readings of Rule 4:4-4. See O'Connor v. Altus, 67 N.J. 106, 125-28 (1975) (construing Rule 4:4-4(d)(2) and noting that delivery need not be accomplished "during a face to face meeting with the person upon whom service is to be effected" or "surrounded by medieval formalism" (internal quotations omitted)).

The ultimate question is whether the mode of service is "reasonably calculated, under all the circumstances, to apprise [defendant] of the pendency of the action and afford [her] an opportunity to present [her] objections." See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L. Ed. 865, 873 (1950). In this case, delivery by leaving the summons at defendant's dwelling after multiple attempts, an identification of and conversation with defendant and her undisputed refusal to come to the door meets that standard.

In addition, defendant claims the trial court erred in concluding that New Jersey had jurisdiction to adjudicate a cause of action for divorce. The requirements are statutory. When either party to a marriage has "become, and for at least [one] year next preceding the commencement of the action has continued to be, a bona fide resident of this State," jurisdiction to divorce may be acquired upon service of the complaint in accordance with the Rules of Court. N.J.S.A. 2A:34-10. Our courts have construed the statute and concluded that "'[t]he words "bona fide resident" are synonymous with "domiciliary" and mean that plaintiff or defendant must be actually domiciled within New Jersey.'" Innes v. Carrascosa, 391 N.J. Super. 453, 482 (App. Div.) (quoting Gosschalk v. Gosschalk, 48 N.J. Super. 566, 572 (App. Div.), aff'd o.b., 28 N.J. 73 (1958)), certif. denied, 192 N.J. 73 (2007); see Caballero v. Martinez, 186 N.J. 548, 558 (2006).

A "[d]omicile is a place where a person has his true, fixed, permanent home, and principal establishment, and to which, whenever he is absent, he has the intention of returning." In re Seyse, 353 N.J. Super. 580, 586 (App. Div.), certif. denied, 175 N.J. 80 (2002). "Domicile is to be distinguished from residence since a person may have many residences but only one true domicile." Id. at 586-87.

There are two prerequisites to a finding of domicile: "(1) physical presence, and (2) the concomitant unqualified intention to remain permanently and indefinitely." Gosschalk, supra, 48 N.J. Super. at 573. As this court explained in Gosschalk, "there must be a 'voluntary' change of residence" accompanied by "the present 'intention' of making [the place of habitation] his home, unless or until something which is uncertain or unexpected shall happen to induce him to adopt some other permanent home." Ibid. "[T]he 'intention' to acquire a new domicile, and not the 'purpose' in making the change is the pivot on which the inquiry turns." Ibid.

The trial court focused solely on plaintiff's residence not the disputed question of plaintiff's intent to acquire a new domicile. Moreover, because the parties' certifications on that point are in conflict and because the indicia of residence and domicile voter's registration, car insurance and driver's license pointed in different directions, it was error to decide this question without a hearing; a material issue cannot be resolved by selecting between competing versions of the facts stated in conflicting certifications and documents. See Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.), certif. denied, 142 N.J. 455 (1995). Testimony was required to determine whether plaintiff was, and for at least "one year next preceding the commencement of the action" had been, a bona fide resident of this State.

The jurisdictional requirement that one party be domiciled in New Jersey for adjudication of a cause of action for divorce is not a technicality that courts should treat as insignificant. It goes to the constitutional justification for exercise of jurisdiction to adjudicate a cause of action for divorce on the basis of the "res" of the marriage despite a lack of jurisdiction over the other spouse. That justification is a state's "rightful and legitimate concern in the marital status of persons domiciled within its borders." Williams v. North Carolina, 317 U.S. 287, 298-99, 63 S. Ct. 207, 213, 87 L. Ed. 279, 286 (1942); see generally Voss v. Voss, 5 N.J. 402, 407 (1950) (discussing domicile and the "res" of the marriage).

Accordingly, we reverse and remand for further proceedings. Because we are remanding and the trial court may determine that plaintiff's domicile is in New Jersey, we consider whether the trial court erred in concluding that jurisdiction to equitably distribute property automatically follows jurisdiction to adjudicate the cause of action. Because that is plaintiff's position, the issue may arise on remand.

Before the trial court and this court plaintiff presents an argument based primarily on N.J.S.A. 2A:34-23, which provides authority to award alimony, maintenance, child support and on equitable distribution, and N.J.S.A. 2A:34-8, which expressly states specific jurisdictional criteria relevant to adjudication of alimony but not equitable distribution. N.J.S.A. 2A:34-23(a) (child support), (b)-(f) (alimony), (h) (equitable distribution). Paragraph h of N.J.S.A. 2A:34-23 provides:

[I]n all actions where a judgment of divorce, dissolution of civil union, divorce from bed and board or legal separation from a partner in a civil union couple is entered the court may make such award or awards to the parties, in addition to alimony and maintenance, to effectuate an equitable distribution of the property, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage or civil union.

N.J.S.A. 2A:34-8 provides:

The 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. The Superior Court shall have jurisdiction of an action for alimony and maintenance when the defendant is subject to the personal jurisdiction of the court, is a resident of this State, or has tangible or intangible real or personal property within the jurisdiction of the court. The Superior Court may afford incidental relief as in other cases of an equitable nature and by rule of court may determine the venue of matrimonial and civil union actions.

The difficulty with plaintiff's argument is that N.J.S.A. 2A:34-8 is not fairly read as silent on the question of grounds to adjudicate equitable distribution. Courts must attempt to interpret a statute so as to give meaning to all of its provisions. In re Civil Commitment of J.M.B., 197 N.J. 563, 573 (2009). The final sentence of N.J.S.A. 2A:34-8 addresses jurisdiction to "afford incidental relief." Equitable distribution is relief incidental to dissolution of the marriage; the right arises when a judgment of divorce is entered and is based upon the spouses' respective contributions during the marriage. Carr v. Carr, 120 N.J. 336, 342-48 (1990). Thus, N.J.S.A. 2A:34-8 is not silent on the circumstances under which our courts have jurisdiction to distribute marital property; courts are directed to exercise that jurisdiction "as in other cases of an equitable nature."

There is a second reason for our conclusion that plaintiff places too much significance on the explicit reference to alimony and the omission of an express reference to equitable distribution. As noted above, N.J.S.A. 2A:34-23 addresses child support as well as alimony and equitable distribution, and its introductory paragraph includes a reference to custody of children and counsel fees as well. The most reasonable interpretation of these related statutes is that the catchall provision included in the final sentence of N.J.S.A. 2A:34-8 applies to all of these forms of "relief," each of which, depending upon the circumstances of the parties, may be "incidental" to dissolution of a marriage.

Finally and most important, a fundamental of statutory construction is an assumption that the Legislature intends to act within the parameters of constitutional limitations. State v. Profaci, 56 N.J. 346, 349 (1970). Assuming without deciding that N.J.S.A. 2A:34-8 addresses jurisdiction to adjudicate and subject matter jurisdiction, when the applicable provision of N.J.S.A. 2A:34-8 is read with that principle in mind, the phrase "as in other cases" is best understood to permit exercise of jurisdiction in matters involving non-residents when it is constitutionally permissible, as our courts do in other cases. Avdel Corp. v. Mecure, 58 N.J. 264, 268 (1971).

The United States Constitution does not require personal jurisdiction over both parties to a marriage to dissolve their marital status so long as one is domiciled within the state. Williams, supra, 317 U.S. at 298-99, 63 S. Ct. at 213, 87 L. Ed. at 286. Nonetheless, a court with jurisdiction to adjudicate the cause of action must have an independent ground for exercise of jurisdiction to grant any incidental relief including equitable distribution.

"[A] court cannot adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant." Vanderbilt v. Vanderbilt, 354 U.S. 416, 418, 77 S. Ct. 1360, 1362, 1 L. Ed. 2d 1456, 1459 (1957) (concluding that a divorce decree entered by a court with jurisdiction to adjudicate the cause of action but lacking personal jurisdiction over the defendant wife could not adjudicate her right to alimony). In that sense, jurisdiction to adjudicate a divorce and incidental relief is "divisible." Estin v. Estin, 334 U.S. 541, 549, 68 S. Ct. 1213, 1218, 92 L. Ed. 1561, 1569 (1948). There must be personal jurisdiction to adjudicate personal obligations except that "[i]f a defendant has property in a State [a court of that state] can adjudicate his obligations, but only to the extent of his interest in that property." Vanderbilt, supra, 354 U.S. at 419 n.6, 77 S. Ct. at 1363 n.6, 1 L. Ed. 2d at 1459 n.6 (referencing Pennington v. Fourth Nat'l Bank of Cincinnati, 243 U.S. 269, 37 S. Ct. 282, 61 L. Ed. 713 (1917) and Harris v. Balk, 198 U.S. 215, 25 S. Ct. 625, 49 L. Ed. 1023 (1905)); see id. at 419 n.7, 77 S. Ct. at 1363 n.7, 1 L. Ed. 2d at 1459 n.7 (adopting the reasoning of the concurring opinion in Armstrong v. Armstrong, 350 U.S 568, 575, 76 S. Ct. 629, 633, 100 L. Ed. 705, 712 (1956) (Black, J., concurring)).

Plaintiff contends that the principles requiring a separate basis for exercise of jurisdiction to affect property rights is limited to the personal obligations of alimony and support. That position is not sustainable. True, the United States Supreme Court's decisions in Vanderbilt and Armstrong involve alimony. But the discussion of historical precedents in Justice Black's concurring opinion in Armstrong, the reasoning of which was expressly adopted and relied upon by the majority in Vanderbilt, indicates that the division of the cause of action and incidental relief related to property, as well as personal obligations, requires a separate evaluation of the constitutional basis for exercise of jurisdiction. See Armstrong, supra, 350 U.S. at 580 n.3, 76 S. Ct. at 636 n.3, 100 L. Ed. at 715 n.3 (discussing permissible distribution of "personal property" in possession of the resident spouse); id. at 580 n.6, 76 S. Ct. at 636 n.6, 100 L. Ed. at 715 n.6 (quoting a prior decision in which the Court had approved a divorce decreed by a legislature, not a court, and observed that the question would be different if the decree had "interfere[d] with rights of property vested in either party" (quoting Maynard v. Hill, 125 U.S. 190, 206, 8 S. Ct. 723, 727, 31 L. Ed. 654, 657 (1888))).

In Drobney v. Drobney, 146 N.J. Super. 317, 322 (App. Div. 1977), Judge Pressler stressed the need for a court to consider the extent to which it has the "power to act . . . based upon either personal jurisdiction, in rem jurisdiction or quasi in rem jurisdiction." As Drobney explains, these principles "are no less applicable to matrimonial litigation than to any other category of civil litigation, particularly in view of the divisible divorce theory." Id. at 323; see Kulko v. Superior Court of Cal., 436 U.S. 84, 91, 98 S. Ct. 1690, 1696, 56 L. Ed. 2d 132, 140 (1978) (holding, in the context of a child support dispute, that "[t]he Due Process Clause of the Fourteenth Amendment operates as a limitation on the jurisdiction of state courts to enter judgments affecting rights or interests of nonresident defendants").

Drobney provides additional guidance. "Personal obligations deriving from the marital relationship or its termination, including, among other things, support and alimony, are dependent for adjudication on the court's acquisition of either personal jurisdiction over defendant or quasi in rem jurisdiction over property in which he has an alienable interest." Drobney, supra, 146 N.J. Super. at 323. While Drobney concerned child support, the court noted that although there was "no decision in this State regarding the jurisdictional basis upon which equitable distribution claims may proceed, it is at least clear that as to property located within the State, in rem jurisdiction is sufficient." Id. at 323 n.2.

There is no authority for the proposition that a court of this State may, consistent with due process, exercise its subject matter jurisdiction to distribute marital assets solely on the ground that one spouse has been a bona fide resident for the requisite period of time to grant a divorce. Our courts have taken the contrary view. In Slodowski v. Slodowski, 156 N.J. Super. 376, 380-81 (Ch. Div. 1978), the court concluded that a distribution of real property in New Jersey directed by a court of another state as an incident of an otherwise valid divorce was not entitled to full faith and credit because that court did not have jurisdiction over the real estate or over the person of the defendant. Conversely, in Higginbotham v. Higginbotham, 92 N.J. Super. 18, 35-36 (App. Div. 1966), where the court of another state had personal jurisdiction over both spouses, this court concluded that a provision of the divorce decree affecting title to real estate in New Jersey was entitled to full faith and credit.

Plaintiff's limited view of the necessity for a basis of jurisdiction in addition to the domicile of one party when the property rights of a non-resident spouse are at issue is not generally accepted. See, e.g., Conlon v. Heckler, 719 F.2d 788, 796 (5th Cir. 1983) (noting a divorce decree entered by a court lacking in personam jurisdiction over one party is entitled to full faith and credit but "not . . . conclusive as to all the accoutrements of marriage . . . including alimony, support, custody, and paternity" and rejecting appeal from denial of social security benefits based on paternity determination made in the context of a divorce proceeding); Cottone v. Cottone, 547 A.2d 625, 628-29 (Del. Fam. Ct. 1988) (dismissing husband's application for distribution of marital property incidental to divorce because wife had "no contacts, minimum or otherwise, with Delaware"); Poston v. Poston, 624 A.2d 853, 855 (Vt.) (noting that "issues other than the dissolution of the marriage are severed from the divorce action when the court does not have personal jurisdiction over one spouse . . . , [and] the judgment does not resolve issues other than the marital status of the parties"), cert. denied, 510 U.S. 816, 114 S. Ct. 66, 126 L. Ed. 2d 35 (1993); Newport v. Newport, 245 S.E.2d 134, 138 (Va. 1978) (same); see also Taddei v. Taddei, 445 A.2d 773, 774 (Pa. Super. Ct. 1982) (court concluded that it had authority to determine the property rights of the parties where a New Jersey judge had entered a judgment of divorce but did not resolve the property issues because the parties had "never lived as husband and wife in New Jersey; the property involved was situated in Pennsylvania, and [the wife] never submitted to New Jersey jurisdiction"). In New York, statutory law specifies the circumstances under which a non-resident spouse has sufficient contacts with the state to permit adjudication of claims for "support, alimony, maintenance, distributive awards or special relief in matrimonial actions" based on personal jurisdiction. N.Y. C.P.L.R. 302(b) (emphasis added).

Accordingly, it is clear that jurisdiction to distribute marital assets does not always accompany jurisdiction to adjudicate the cause of action.

A court with personal jurisdiction over both parties may distribute all of the marital assets. Higginbotham, supra, 92 N.J. Super. at 35-36. Personal jurisdiction requires "a sufficient connection between the defendant and the forum State to make it fair to require defense of the action in the forum." Kulko, supra, 436 U.S. at 91, 98 S. Ct. at 1696; 56 L. Ed. 2d at 141. Personal jurisdiction may be specific, when the "cause of action relates directly to the [defendant's] contacts" with the state, a question which focuses on "the relationship among the defendant, the forum, and the litigation" and cannot be satisfied on the basis of "random, fortuitous, or attenuated contacts." Lebel v. Everglades Marina, Inc., 115 N.J. 317, 322-23 (1989) (internal quotations omitted). Personal jurisdiction also may be general, a basis that exists regardless of the cause action when "the defendant's activities in the forum state can be characterized as continuous and systematic contacts." Id. at 323 (internal quotations omitted).

In the absence of defendant's consent, the facts of this case do not permit an exercise of personal jurisdiction. With respect to this litigation, defendant has no connection with this State. The parties were not married here and did not live here during the marriage. Defendant has never lived or worked here, and she had no role in plaintiff's decision to live in New Jersey. She did not engage in any conduct in this State relevant to either cause of action alleged by plaintiff. Similarly, there is no evidence that would permit exercise of general jurisdiction; no continuous and systematic contacts between defendant and this forum are alleged.

The question remains whether the presence of some of the Boghosians' assets in financial institutions that have offices or branches in New Jersey is an adequate ground for exercise of quasi in rem or in rem jurisdiction over that property. A claim for equitable distribution of financial assets is one that can be exercised, in appropriate circumstances, quasi in rem; "the plaintiff is seeking to secure a pre-existing claim in the subject property and to extinguish or establish the nonexistence of similar interests of particular persons." Shaffer v. Heitner, 433 U.S. 186, 199 n.17, 97 S. Ct. 2569, 2577 n.17, 53 L. Ed. 2d 683, 695 n.17 (1977) (internal quotations omitted). The claim here is unlike a claim of title to real estate that may "affect[] the interests of all persons in designated property" and can be based on in rem jurisdiction. Ibid. (internal quotations omitted).

Assuming the debt on the investments owed by the financial institutions to the parties has a fictional situs wherever those institutions are present, no state court could exercise jurisdiction to adjudicate the Boghosians' respective rights to collect on the debt unless it would be consistent with "traditional notions of fair play and substantial justice." Rush v. Savchuk, 444 U.S. 320, 327, 100 S. Ct. 571, 577, 62 L. Ed. 2d 516, 524 (1980) (internal quotations omitted). That inquiry requires an analysis of defendant's contacts with a "focus on the relationship among the defendant, the forum, and the litigation." Ibid. (internal quotations omitted). The presence of these financial institutions in New Jersey, like the presence of the national insurance company at issue in Rush, is "fictional" and, from the perspective of the Boghosians it is fortuitous. Ibid. Unlike ownership of tangible property such as real estate or an automobile that is indicative of the owner's other connections with the forum, the right to collect on assets held by a financial institution, in itself, suggests no additional ties between defendant and every forum in which the institution and plaintiff may be found. See ibid.; see generally Dickstein v. Merrill Lynch, 295 N.J. Super. 550, 559-61 (App. Div. 1996) (discussing minimum contacts and financial assets and on that basis concluding that New York had jurisdiction based on the account holders contacts), certif. denied, 149 N.J. 141 (1997); Restatement (Second) of Conflict of Laws, 65 (1971) ("[a] State has power to exercise judicial jurisdiction to affect interests in an intangible thing which is not embodied in a document if the relationship of the state to the thing and to the parties involved makes the exercise of such jurisdiction possible"); id. at comment a (noting that "[e]xamples of intangible things that are not embodied in a document are simple contract and tort claims, commercial bank deposits and corporate shares that are not embodied in the stock certificate"). Here, as in Rush, adopting plaintiff's argument would require defendant to litigate her claim to a share of the marital assets in any state in which Merrill Lynch was present and plaintiff qualified to maintain an action for divorce. See Rush, supra, 444 U.S. at 329, 100 S. Ct. at 577, 62 L. Ed. 2d at 525. That prospect is not consistent with traditional notions of fairness or fair play.

Accordingly, we conclude that the court may not proceed with equitable distribution based on the presence of the financial institutions with which the parties maintain accounts.

As an alternative basis for affirmance, plaintiff contends that defendant's request for counsel fees on her motion to dismiss for lack of jurisdiction is one for affirmative relief that bars her objection to personal jurisdiction. Though a party may consent to jurisdiction by participating in the proceeding, Battle v. Gen. Cellulose Co., 23 N.J. 538, 546 (1957), that is not what happened here. "[A]n appearance for any other purpose [than to contest jurisdiction], at least one bearing substantial relation to the cause [of action,] waives objections to the jurisdiction over the person of the defendant." Field v. Field, 31 N.J. Super. 139, 148 (App. Div. 1954) (internal quotations omitted). But a request for counsel fees on a motion to dismiss bears a relation to that motion not the underlying cause of action. Plaintiff provides no authority in support of his claim of waiver and there is persuasive authority to the contrary. Heineken v. Heineken, 683 So. 2d 194, 197-98 (Fla. Dist. Ct. App. 1996); Grange Ins. Ass'n v. Washington, 757 P.2d 933, 940 (Wash. 1988), cert. denied, 490 U.S. 1004, 109 S. Ct. 1638, 104 L. Ed. 2d 154 (1989); cf. Dial 800 v. Fesbinder, 12 Cal. Rptr. 3d 711, 724-28 (Cal. Ct. App. 2004) (where defendant alleged that court lacked in personam jurisdiction but sought counsel fees provided by contract, court held that the request was a waiver of the objection as the contract was the subject of the litigation). Plaintiff's argument requires no further discussion in a written opinion. R. 2:11-3(e)(1)(E).

We decline to consider defendant's arguments based on the inconvenience of the forum, because those arguments were not raised below and can be raised in the event the trial court concludes that it has jurisdiction to adjudicate the cause of action. Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

 
Reversed and remanded for further proceedings in conformity with this opinion.

There are two motions pending before us. The first (M-705-08), is plaintiff's motion to supplement the record, for a temporary remand to grant plaintiff's divorce and for restraints precluding defendant from proceeding in the New York action. We now grant the motion to supplement and deny the additional requests. The second (M-706-08), is defendant's motion to supplement the record and strike plaintiff's appendix. We grant the motion to supplement and deny the motion to strike.

On May 20, 2008, defendant filed a complaint for divorce in Nassau County, New York, alleging adultery and abandonment. On June 23, 2008, plaintiff filed a motion to dismiss defendant's Nassau County complaint, or, in the alternative, to consolidate it with the New Jersey action.

The New York court denied his motion.

Defendant does not claim that plaintiff failed to file the prerequisite affidavit. See R. 4:4-4(b)(1).

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