DAWN D. HORTON v. CURTIS W. HORTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2993-11T4

DAWN D. HORTON,

Plaintiff-Appellant,

v.

CURTIS W. HORTON,

Defendant-Respondent.

-

December 27, 2012

Submitted December 18, 2012 - Decided

Before Judges Harris and Hoffman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2131-08.

Dawn Horton, appellant pro se.

William E. Grant, attorney for respondent.

PER CURIAM

Plaintiff Dawn Horton appeals from a January 6, 2012 order granting a motion to enforce litigant's rights filed by defendant Curtis W. Horton, her ex-husband. Specifically, the order compelled plaintiff to return the parties' minor children to New Jersey for visitation with defendant. In the judgment of divorce, dated November 13, 2008, defendant gave his consent for plaintiff to move with the children to South Carolina. While the record does not reflect the exact date of the move, various motions and court orders indicate that the move likely occurred in 2009, and no later than 2010.

Because we determine the record provides no indication that the Family Part addressed whether the children retained "a significant connection with this State[,]" N.J.S.A. 2A:34-66a(1), which is essential for continued subject matter jurisdiction over custody and parenting time, we reverse and remand for further proceedings.

According to the final judgment of divorce, Plaintiff and defendant were lawfully married in February 2002, and divorced in November 2008. Their property settlement agreement (PSA) provided for joint legal custody of their daughters, born in 1997 and 2003, and named plaintiff parent of primary residence and defendant parent of alternate residence. The PSA further provided that defendant consented for plaintiff "to move to South Carolina with the children," and that upon the move occurring, defendant was granted "reasonable visitation . . . upon at least 48 hours notice."

Defendant's brief indicates the filing of multiple motions "to secure visitation and phone contact with the minor children residing in South Carolina before the trial court in Middlesex County." When these proceedings proved unsuccessful, the judge entered an order on April 29, 2011 requiring both parties to appear before him on June 30, 2011 "for a plenary hearing for the purpose of establishing a parenting time schedule." Plaintiff failed to appear for the hearing and the judge entered a hand-written order requiring plaintiff to transport the children to New Jersey for defendant to have vacation parenting time from July 24, 2011 through August 7, 2011, and further made provision for holiday parenting time. Plaintiff did not comply with the order. A further application by defendant resulted in the entry of the order under review.

New Jersey adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), N.J.S.A. 2A:34-53 to -95, in 2004. The UCCJEA prioritizes home state jurisdiction when determining a state's jurisdiction of a child custody dispute.

Here, New Jersey entered the initial custody determination when the parties divorced. Because it initially entered the custody determination, the Family Part could modify its determination so long as it retained exclusive, continuing jurisdiction.1 When confronted with a motion to modify an initial custody order, "only a New Jersey court can determine that New Jersey has lost jurisdiction based on a lack of significant connection and substantial evidence." Griffith v. Tressel, 394 N.J. Super. 128, 141 (App. Div. 2007). The court determines "whether . . . circumstances have changed so as to divest this state of that jurisdiction." Id. at 140.

When determining whether a significant connection exists, the focus is on the relationship between the child and the parent remaining in the state with exclusive, continuing jurisdiction. Id. at 145. "When that relationship becomes too attenuated, 'exclusive, continuing jurisdiction is lost.'" Ibid. (quoting UCCJEA, supra, 202 comment 1, at 674).

Assuming the move to South Carolina occurred no later than 2010, South Carolina would have become the children's "home state"2 before the commencement of most, if not all, of the post-judgment enforcement proceedings.

The statute requires examination of the child's connection to New Jersey, which is not derived from a parent's continued residence. Griffith, supra, 394 N.J. Super. at 145. The facts in the record do not demonstrate a consistent connection to New Jersey following the children's relocation. Also, the record contains no evidence, let alone the required "substantial evidence," of the children's "care, protection, training, and personal relationships" within this state. N.J.S.A. 2A:34-66a(1).

On remand, if defendant develops a record that supports a determination that New Jersey continues to have jurisdiction, the court must next address if it should decline that jurisdiction in favor of a more appropriate forum. N.J.S.A. 2A:34-71. Whether another state is a more appropriate venue must be considered under an inconvenient forum analysis. Griffith, supra, 394 N.J. Super. at 148-49. The statute provides:

A court of this State that has jurisdiction under this act 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. The issue of inconvenient forum may be raised upon the court's own motion, request of another court or motion of a party.

[N.J.S.A. 2A:34-71a.]

Before determining the inconvenient forum issue, the court is required to consider the following factors: domestic violence between the parties,3 the length of the child's absence from New Jersey, the distance between the two interested states, the financial circumstances of the parties, the location of evidence necessary to reach the determination, including whether a child interview would be necessary, the ability of the forum to provide an expeditious determination, and each forum's familiarity with the issues and any other relevant facts. N.J.S.A. 2A:34-71b.

Here, evidence regarding the children's health, needs, schooling, and activities are likely centered in South Carolina. See Griffith, supra, 394 N.J. Super. at 150 (finding error where the motion judge "failed to give adequate consideration to the relevant statutory factors" in N.J.S.A. 2A:34-71b).

Because of the unaddressed issue of subject matter jurisdiction, as well as related issues, we are constrained to reverse the January 6, 2012 order and remand the matter to the Family Part for further proceedings as discussed in this opinion.4

Reversed and remanded. Jurisdiction is not retained.

1 The record contains no evidence of either party filing any proceedings in South Carolina regarding the children. If either party should do so in the future, the UCCJEA contemplates that the Family Part judge will consult with the judge in South Carolina. See N.J.S.A. 2A:34-62 (authorizing communication at any time and describing the manner in which it should be conducted).

2 " 'Home state' means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding." N.J.S.A. 2A:34-54.

3 A South Carolina Court issued a restraining order against defendant on July 28, 2012.

4 In her brief on appeal, plaintiff claims defendant failed to provide her with notice of the motion that lead to the entry of the January 6, 2012 order. Upon remand, plaintiff may move for relief from that order. R. 4:50-1(f).