TERRI WATKINS v. KEVIN WATKINS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5715-09T1

TERRI WATKINS,

Plaintiff-Respondent,

v.

KEVIN WATKINS,

Defendant-Appellant.

___________________________________

April 12, 2011

 

Submitted January 5, 2011 - Decided

 

Before Judges Ashrafi and Nugent.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FM-06-447-10.

 

Trace & Jenkins, L.L.C., attorneys for appellant(AllynMarie Smedley,on the briefs).

 

Terri Watkins, respondent pro se.

PER CURIAM

Defendant Kevin Watkins lives in Kentucky. Plaintiff Terri Watkins lives in New Jersey with their son. The parties' parenting time dispute has evolved into a jurisdictional conflict between New Jersey and Kentucky under the Uniform Child Custody Jurisdiction and Enforcement Act, N.J.S.A. 2A:34-53 to -95, K.R.S. 403.800 to 403.880 (the UCCJEA). Defendant appeals from a May 6, 2010 Family Part order asserting New Jersey's jurisdiction over custody, parenting time, and support issues, requiring defendant to spend his parenting time in New Jersey, and directing the parties to provide financial information so that issues concerning support and childcare expenses could be decided. Defendant also appeals from the Family Part's denial of his motion to vacate the May 6, 2010 order or stay it pending appeal. Because we conclude Kentucky has exclusive jurisdiction under the UCCJEA, we reverse.

I.

The parties were married in New Jersey on September 22, 1996, and divorced in Kentucky on October 31, 2003. They have one child, a son, born in 1999, who is developmentally disabled.

The parties married in New Jersey but eventually moved to Kentucky and remained there until they separated in 2002. Plaintiff returned to New Jersey with their son, where they have since resided. Defendant remained in Kentucky.

In November 2002, at plaintiff's request, the Cumberland County Board of Social Services (CCBSS) filed a complaint for child support in New Jersey on her behalf. On January 23, 2003, the court dismissed CCBSS's complaint.1 The first order concerning child custody and parenting time was entered in Kentucky on January 10, 2003, on defendant's motion in the dissolution action. Plaintiff represented herself and appeared by telephone. The Kentucky court granted defendant's motion for joint custody, designated plaintiff as the primary residential custodian, and allowed defendant parenting time in Kentucky from January 4, 2003 until January 12, 2003, "as agreed by the parties." The court also ordered defendant to pay weekly child support of $50.

Three months later, on April 10, 2003, the parties entered into a property settlement agreement (PSA) in the Kentucky dissolution action. The PSA provided for joint custody, designated plaintiff as the primary residential custodian, fixed defendant's child support obligation, and established a plan for defendant to have parenting time in Kentucky during 2003 and 2004. The PSA did not conclude the Kentucky dissolution action.

Notwithstanding this fact, plaintiff filed a motion in New Jersey seeking sole custody. On August 20, 2003, though recognizing "joint custody was awarded in Kentucky," the Family Part entered an order stating the "child has lived in N.J. since Sept. 2002, sole custody is now with [plaintiff]." It also awarded defendant "open and liberal" parenting time in New Jersey only.2

The parties were divorced two months later, on October 31, 2003, when the Kentucky court entered a Decree of Dissolution of Marriage. Plaintiff participated in the proceeding by telephone. The decree stated both plaintiff and defendant were "citizen[s]" of Kentucky and had been "for more than one hundred and eighty (180) days preceding the filing of the Petition for Dissolution of Marriage." The decree also stated the parties, "as agreed," would share joint custody, with plaintiff serving as the primary residential custodian, and defendant having "visitation in 2003 at any time he can travel to New Jersey." The court expressed concern that psychological and developmental evaluations of their son were pending, and determined he "should not be removed from the current environment in New Jersey until the evaluations have been completed." Additionally, "once visitation beg[an] outside of New Jersey" in 2004, the parties would equally divide transportation costs and the "best interest" standard would guide the specifics for times and dates. The decree explicitly stated that Kentucky "has jurisdiction over the subject matter and over the parties to this action and proper venue is in the Commonwealth of Kentucky."

The Kentucky court disposed of numerous motions between its entry of the divorce decree in October 2003 and the onset of the current dispute in December 2009. Plaintiff participated in the hearings by telephone and was represented by an attorney on at least one occasion. The motions concerned child support, medical insurance for their son, medical treatment while their son was in Kentucky, and defendant's parenting time.

Defendant exercised his parenting time through November 2008; however, he was injured in September of that year and was laid off, leaving him financially unable to purchase plane tickets to fly his son to Kentucky for parenting time in 2009. Meanwhile, according to plaintiff, their son's condition worsened, he underwent major surgery in November 2009, and he now experiences muscle tightness and difficulty walking.

The current custody dispute began when defendant attempted to arrange for parenting time in 2010. In response to defendant's request for dates, plaintiff provided two options. When defendant received no response to three emails attempting to confirm one of the options, he sent a letter by certified mail that was received by plaintiff on March 16, 2010. Meanwhile, on March 11, 2010, plaintiff had filed a motion in New Jersey seeking a review of parenting time, medical reimbursement, and an increase in child support. The motion was not processed because it was improperly filed, but on March 17, 2010, plaintiff filed a corrected application in the Family Part.

After being served with plaintiff's motion, defendant filed a motion on March 31, 2010 in Kentucky to enforce his summer parenting time. He alleged plaintiff "attempted to transfer jurisdiction of this case to New Jersey by simply bringing an action in New Jersey previously[]3 [and] [r]ecently, she has done the same thing again." Defendant also stated, "jurisdiction [has not] been transferred[] [and] [t]his Court in a prior order was emphatic to say that jurisdiction of this case had not been transferred."

In response to defendant's motion, plaintiff filed a motion in Kentucky requesting it relinquish jurisdiction to New Jersey. The Kentucky court delayed a hearing to permit plaintiff to supplement the record with the pleadings she filed in the New Jersey Family Part action, but denied the motion on May 19, 2010. On June 8, 2010, plaintiff filed a notice for an expedited appeal with the Kentucky Court of Appeals.4

Meanwhile, on May 6, 2010, the Family Part conducted a hearing in which only plaintiff participated. The Family Part found the parties' son was "a child of New Jersey" and that New Jersey had original jurisdiction over the matter "because the first application was made in New Jersey." The court also stated that, even if it were mistaken in finding New Jersey had original jurisdiction, New Jersey had "temporary emergency jurisdiction" based on the child's serious medical needs. The court entered a conforming order on May 6, 2010, and attached written findings.

On June 10, 2010, the Family Part denied defendant's motion to vacate that order or, alternatively, to stay the decision pending appeal.

On June 10, 2010, the Kentucky court held a status conference regarding defendant's request for parenting time from June 19, 2010 to July 3, 2010.5 Defendant traveled to New Jersey on June 19, 2010 to exercise his parenting time. Relying on the New Jersey orders, plaintiff refused to comply. As a result, defendant filed a motion in Kentucky to hold plaintiff in contempt and a hearing was scheduled for August 4, 2010. Plaintiff claims the hearing was postponed pending the outcome of her appeal.6

On July 29, 2010, we granted defendant's motion for leave to appeal from the May 6, and June 14, 2010 orders but denied his application to stay those orders pending appeal. We also directed the trial court to schedule a hearing to set defendant's parenting time.

On appeal, defendant argues the Family Part judge erred in asserting jurisdiction pursuant to the UCCJEA, in applying a best interest standard to assert jurisdiction, and in claiming jurisdiction over child support issues without regard to the Uniform Interstate Family Support Act, N.J.S.A. 2A:4-30.65 to -30.123 (the UIFSA). Plaintiff asserts the Family Part judge correctly asserted jurisdiction over both the custody and support matters.

II.

Because the Family Part's decisions were based on its interpretation of the law, not the facts of the case, our review of its orders is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). The parties' custody dispute is controlled by the UCCJEA, which became effective before plaintiff filed her motion to change custody and visitation. N.J.S.A. 2A:34-94. Both New Jersey and Kentucky adopted the UCCJEA in 2004. See Table of Jurisdictions Wherein Act Has Been Adopted (preceding N.J.S.A. 2A:34-53).

"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). Accord Hearld v. Hearld, 278 S.W.3d 162, 164 (Ky. App. 2009) (citing Wallace v. Wallace, 224 S.W.3d 587 (Ky. App. 2007)). A primary objective of the UCCJEA is to prioritize home state jurisdiction for a state assuming jurisdiction of a child custody dispute. See Dalessio v. Gallagher, 414 N.J. Super. 18, 22 (App. Div. 2010). In relevant part, N.J.S.A. 2A:34-54 defines "home 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 K.R.S. 400.800.]

 

The UCCJEA section that permits a state to assume initial child custody jurisdiction over an interstate custody dispute provides in pertinent part:

a. [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 subsection, 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 a 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; K.R.S. 403.822.]

 

Accordingly, Kentucky was the child's home state in January 2003, and it exercised jurisdiction over custody.

[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 New Jersey and Kentucky UCCJEA statutes define "initial determination" as "the first child custody determination concerning a particular child"; "child 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; K.R.S. 400.800. The Kentucky court made the initial custody determination when it entered its January 10, 2003 order concerning child custody and visitation. It also entered a number of subsequent orders before the Family Part heard plaintiff's motion on May 6, 2010. Consequently, the Kentucky court had jurisdiction over the parties' custody dispute in May 2010, and the Family Part could not exercise "significant connection" jurisdiction over the interstate dispute because Kentucky had not relinquished jurisdiction.

Although the Family Part judge stated New Jersey had original jurisdiction because the first "application" was made there, that statement is not supported by the record. The "application" could not have been the CCBSS support motion, because 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, K.R.S. 400.800; and it could not have been the August 20, 2003 Family Part order because that was entered eight months after the first Kentucky custody order.

The Family Court also determined that plaintiff and her son no longer had a significant connection with Kentucky and explained that under the comments to section 202 of the model UCCJEA, Kentucky lost continuing jurisdiction because the child's relationship with defendant became sufficiently attenuated. The court was correct that a state with "exclusive, continuing jurisdiction" over a custody dispute may relinquish or decline that jurisdiction if the child, or the child and one parent, no longer have a significant connection with the State and substantial evidence concerning the child's care, protection, training, and personal relationships is no longer available there. N.J.S.A. 2A:34-66a(1); K.R.S. 403.824(1)(a). However, only the State initially possessing jurisdiction may make that determination:

[T]he UCCJEA and NJUCCJEA reserve to the state that has acquired "exclusive, continuing jurisdiction" the authority to decide whether it has expired due to lack of the requisite "significant connection" and "substantial evidence," UCCJEA, supra, 202; N.J.S.A.2A:34-66a(1)[.]

 

[Griffith, supra, 394 N.J. Super.at 145.]

 

Consequently, the Family Part erred in making that determination because it had not acquired "exclusive, continuing jurisdiction."

Although the Family Part also found that New Jersey had jurisdiction under N.J.S.A. 2A:34-67, that statute states:

Except as otherwise provided in section 16 of this act [2A:34-68], a court of this State may not modify a child custody determination made by a court of another state unless a court of this State has jurisdiction to make an initial determination under paragraph (1) or (2) of subsection a. of section 13 of this act [2A:34-65] and:

 
a. the court of the other state determines it no longer has exclusive, continuing jurisdiction under section 14 of this act [2A:34-66] or that a court of this State would be a more convenient forum under section 19 of this act [2A:34-71]; or
 
b. a court of this State or a court of the other state determines that the child, the child's parents, and any person acting as a parent do not presently reside in the other state.

 

[Accord K.R.S. 403.826.]

 

The Kentucky court had made no determination that New Jersey would be a more convenient forum, and defendant resides in Kentucky. Thus, the Family Part could not exercise jurisdiction under N.J.S.A. 2A:34-67.

Next, the Family Part determined it had temporary emergency jurisdiction due to the child having "multiple chronic illnesses." Temporary emergency jurisdiction is provided by N.J.S.A. 2A:34-68, which states:

a. A court of this State has temporary emergency jurisdiction if the child is present in this State and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.
 
b. If there is no previous child custody determination that is entitled to be enforced under this act, and if no child custody proceeding has been commenced in a court of a state having jurisdiction under sections 13 through 15 of this act [2A:34-65 to 2A:34-67], a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under sections 13 through 15 of this act. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under sections 13 through 15 of this act, a child custody determination made under this section becomes a final determination if:
 
(1) it so provides; and

 
(2) this State becomes the home state of the child.
 
c. If there is a previous child custody determination that is entitled to be enforced under this act, or a child custody proceeding has been commenced in a court of a state having jurisdiction under sections 13 through 15 of this act, any order issued by a court of this State under this section must specify in the order a period of time which the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under sections 13 through 15 of this act. The order issued in this State remains in effect until an order is obtained from the other state within the period specified or the period expires.

 
d. A court of this State which has been asked to make a child custody determination under this section, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made, by a court of a state having jurisdiction under sections 13 through 15 of this act, shall immediately communicate with the other court. A court of this State which is exercising jurisdiction pursuant to sections 13 through 15 of this act, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of another state under a statute similar to this section shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.

 

[Accord K.R.S. 403.828.]

 

The Family Part found it was not in the child's best interest to travel to Kentucky due to his medical conditions, but the court did not suggest that the child was subjected to, or threatened with, mistreatment or abuse. The court found defendant "has not called or seen the child in 2009 or 2010 so he cannot possibly understand the child's needs"; yet, the prior history of defendant's visitation with his son in Kentucky does not suggest he was unaware of his son's conditions.7 Plaintiff's decision to proceed in New Jersey was motivated by her concern that the child's medical condition, emotional well-being, and education would be adversely affected by traveling to Kentucky. However, there was no suggestion that the child would be subjected to mistreatment or abuse if permitted to travel with defendant to Kentucky in the summer of 2010. More significantly, the Kentucky court asked plaintiff to provide it with the records she submitted to the Family Part in support of her motion in New Jersey, ensuring it would have all relevant information regarding the child's care. Plaintiff is bound to comply with the requirements of the UCCJEA.

The Family Part judge also stated New Jersey has jurisdiction "going forward" to "decide all issues as they relate to the minor child." Emergency jurisdiction is, by statute and definition, temporary in nature. The court's conclusion is in error.

In its June 14, 2010 decision, the court relied on N.J.S.A. 2A:34-70(b) to find New Jersey had jurisdiction. The statute provides:

a. Except as otherwise provided in section 16 of this act [2A:34-68], a court of this State may not exercise its jurisdiction under this article if at the time of the commencement of the proceeding a proceeding concerning the custody of the child had been commenced in a court of another state having jurisdiction substantially in conformity with this act, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this State is a more convenient forum under section 19 of this act [2A:34-71].
 
b. Except as otherwise provided in section 16 of this act, a court of this State, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to section 21 of this act [2A:34-73]. If the court determines that a child custody proceeding was previously commenced in a court in another state having jurisdiction substantially in accordance with this act, the court of this State shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this act does not determine that the court of this State is a more appropriate forum, the court of this State shall dismiss the proceeding.

 
c. In a proceeding to modify a child custody determination, a court of this State shall determine whether a proceeding to enforce the determination has been commenced in another state. If a proceeding to enforce a child custody determination has been commenced in another state, the court may:
 
(1) stay the proceeding for modification pending the entry of an order of a court of the other state enforcing, staying, denying or dismissing the proceeding for enforcement;
 
(2) enjoin the parties from continuing with the proceeding for enforcement; or
 
(3) proceed with the modification under conditions it considers appropriate.

 

[Ibid.; accord K.R.S. 403.832.]

 

Having recognized a child custody proceeding was previously commenced in Kentucky, and that Kentucky refused to relinquish jurisdiction, the Family Part should have dismissed the proceeding in New Jersey.8

Finally, the Family Part determined that New Jersey could exercise jurisdiction under a "best interest of the child" analysis. The UCCJEA does not provide for such an analysis as grounds for asserting jurisdiction. The judge was apparently relying on the repealed Uniform Child Custody and Jurisdiction Act (UCCJA), not the current UCCJEA. Thus, there is no basis under the UCCJEA for asserting jurisdiction based on the best interest of the child.

In view of our disposition of the jurisdictional issues, we need not address defendant's argument concerning child support.

We recognize this case presents difficult and delicate issues concerning interstate custody and parenting time. We also acknowledge that as the child's condition becomes more complex, his needs may provide a compelling reason for determining that New Jersey is the more convenient forum for resolving custody issues. However, the UCCJEA vests the home state with the authority to make such decisions. Pre-empting that authority will only result in precisely the jurisdictional conflicts that the UCCJEA was intended to avoid.

Reversed.

 

1 The record does not include the complaint or the order dismissing it.

2 Neither the motion nor the transcript of the hearing that resulted in the August 20, 2003 order is included in the record.

3 Defendant was apparently referring to the August 20, 2003 Family Part order.

4 Kentucky court records indicate that on November 10, 2010, the appeal, 2010-CA-001102-ME, was dismissed. See http://apps.courts.ky.gov/Appeals/COA_Dockets.shtm. The order states, in part: "On September 15, 2010, this Court directed the appellant to show cause why this appeal should not be dismissed for failing to appeal from a final and appealable order. The order denied a motion to transfer jurisdiction to New Jersey and set a hearing for a future date. . . . [T]he court fails to find sufficient cause and orders that this appeal be dismissed."

5 The record does not include an order arising from this conference. Defendant alleges the Kentucky court ordered defendant's parenting time. Plaintiff argues no order was entered or received by plaintiff.

6 The record does not include an order to this effect. However, Kentucky online court records indicate a contempt hearing was scheduled for January 19, 2011, and the case is still active under docket number 02-CI-01586. See http://apps.kycourts.net/CourtRecords/Results.aspx.

7 Plaintiff asserted that on a prior summer visit to Kentucky, the child came primarily under the care of his grandmother, who has her own medical difficulties and is not physically able to care for the child as he gets older and his needs become more pronounced. To discuss this and other concerns, the Family Part judge attempted to communicate with the judge in Kentucky, but his efforts were unsuccessful.

8 N.J.S.A. 2A:34-70(b) is inapplicable when another state has exclusive, continuing jurisdiction.