FRANK GIORGIANNI v. JACQUELINE GIORGIANNI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

FRANK GIORGIANNI,

Plaintiff-Appellant,

v.

JACQUELINE GIORGIANNI, n/k/a

JACQUELINE HOWARD,

Defendant-Respondent.

________________________________________________________________

September 20, 2013

Before Judges Espinosa and Koblitz.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-64-13.

Kevin J. Kotch argued the cause for appellant (Obermayer Rebmann Maxwell & Hippel, L.L.P., attorneys; Shari B. Veisblatt and Mr. Kotch, on the briefs).

Jacqueline Howard, respondent, argued the cause pro se.

PER CURIAM

Plaintiff Frank Giorgianni appeals from the October 12, 2012 order denying his application to transfer jurisdiction of custody matters to New Jersey and dismissing his complaint seeking a transfer of jurisdiction to New Jersey. Because the parties' divorce in South Carolina was finalized and both parties and their child are permanent residents of New Jersey, we reverse.

We glean the following information from the certifications of the parties and court orders supplied by the parties. The parties married in 2005 and moved to South Carolina in 2007. One child was born in 2008. Plaintiff filed for divorce in South Carolina on June 9, 2009. Defendant Jacqueline Giorgianni, now known as Jacqueline Howard, relocated from South Carolina to New Jersey with the child in August 2010, after certifying to the court that both parties were from New Jersey and had no ties to South Carolina. The South Carolina court allowed her to relocate after determining that New Jersey was the original home state of the parties and both sets of grandparents reside in New Jersey.

In October 2011, after extensive pretrial litigation in South Carolina, plaintiff filed a divorce complaint in New Jersey claiming that New Jersey was then the home state of the child. In November, after consultation between the South Carolina and New Jersey judges pursuant to Section 62 of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), N.J.S.A. 2A:34-53 to -95, South Carolina maintained exclusive, continuing jurisdiction and defendant was awarded counsel fees by the South Carolina court. See Griffith v. Tressel, 394 N.J. Super. 128, 138-30 (App. Div. 2007)(discussing the purposes of the UCCJEA). An order was issued in New Jersey on November 14, 2011, declaring that "South Carolina has exclusive jurisdiction over this custody action." The November 4, 2011 order from South Carolina elucidates further the reasons that the two judges agreed that South Carolina should continue with jurisdiction. The South Carolina judge stated that plaintiff still lived in South Carolina and that South Carolina had jurisdiction of the custody determination when the divorce complaint was filed in South Carolina. Plaintiff began litigation in the New Jersey courts without notifying the South Carolina court, after extensive motion practice in South Carolina and shortly before a hearing was scheduled in South Carolina.

The UCCJEA expressly states in pertinent part that, except for emergent situations,

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 . . . .

[N.J.S.A.2A:34-70a.]

Thus, the judges agreed that the divorce should continue in South Carolina. The parties were divorced in South Carolina on December 12, 2011. They entered into a property settlement agreement that included all financial terms as well as their agreement that defendant "shall have sole legal and physical custody" of their child.

Plaintiff had relocated back to New Jersey the prior month, only days after South Carolina entered the order retaining jurisdiction over the custody matter. In July 2012, plaintiff again filed a motion to transfer jurisdiction of the custody matter to New Jersey, requesting oral argument if opposition was filed. On August 9, 2012, he also filed a complaint seeking to transfer jurisdiction of custody issues. Although opposition to plaintiff's motion was filed, the court denied the motion without hearing oral argument, stating:

Application to register den[ied].1 Case dismissed. South Carolina has continuing exclusive jurisdiction. Nothing has changed (except the passage of time) since this Court's order of 11/14/11 (copy attached.)

Because the trial court decided this case as a matter of law without a hearing,2appellate review is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); accord Perez v. Professionally Green, LLC., __ N.J.___, (2013)(slip op. at 11). Thus, the trial court's legal conclusions "are not entitled to any special deference." Manalapan Realty, supra, 140 N.J. at 378.

Defendant argues that we should affirmthe trial court's decision because the South Carolina courts know the history of the litigation between the parties. The parties are able to provide the New Jersey trial court, as they provided us, with the history of prior litigation and the orders entered in South Carolina.

The UCCJEA states that "exclusive, continuing jurisdiction" continues in the State that made the initial custody determination until "a court of this State or a court of another state determines that neither the child, nor a parent . . . resides in this State." N.J.S.A.2A:34-66a(2). The parties agree that this condition was met at the time plaintiff sought to transfer jurisdiction. The mother and child had lived in New Jersey for more than two years and the father had lived in New Jersey for more than one year at the time the trial court denied plaintiff's application to transfer jurisdiction to New Jersey. Furthermore, since the prior denial of plaintiff's application to transfer jurisdiction, the parties had obtained a divorce in South Carolina after resolving the custody issue, thus eliminating the possibility that plaintiff was seeking a more favorable forum to litigate an initial custody determination.

1 Although in the order the judge refers to an "application to register" and in Point II of his brief plaintiff states that "[t]he [c]ourt [s]hould [h]ave [r]ecorded [t]he South Carolina [d]ivorce [j]udgment," plaintiff did not explicitly seek registration of the out-of-state custody determination contained in the divorce judgment, or the entire divorce judgment, in his motion before the trial court. He also did not attach a certified copy of the South Carolina custody determination as would be required to register it. N.J.S.A. 2A:34-79a(2). Thus, plaintiff must re-file the motion and complaint in compliance with the statute if he wishes to register the judgment in New Jersey.

2 The court also did not afford the parties oral argument, which ordinarily should be permitted when requested in connection with a substantive motion. R. 5:5-4(a), Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997).