NICHOLE WHITE v. BRIAN DOUGLAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NICHOLE WHITE,

Plaintiff-Respondent,

v.

BRIAN DOUGLAS,

Defendant-Appellant.

___________________________

October 31, 2013

Submitted October 22, 2013 Decided

Before Judges Reisner and Ostrer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FD-03-68-12.

J.P. Reilly, Jr., attorney for appellant.

R. Douglas Hoffman, attorney for respondent.

PER CURIAM

Defendant Brian Douglas (father or defendant) appeals from a July 10, 2012 Family Part order relinquishing the New Jersey court's jurisdiction with respect to custody and child support. We conclude that the order was entered in error, in the middle of an as-yet-undecided custody dispute; that dispute included plaintiff Nichole White's (mother or plaintiff) application to permanently relocate the parties' child to Georgia. Accordingly, we reverse and remand to the Family Part for further proceedings consistent with this opinion.

We recite the procedural history at some length because it illustrates how this matter went awry. The parties, who are not married, had a child while they were living in New Jersey.1 They had a contentious relationship. After their relationship ended, the father, who was still living in New Jersey, filed an order to show cause (OSC) seeking custody of the child and seeking to enjoin the mother from taking the child to Georgia. The mother, who was living with the child in New Jersey, filed a response, seeking permission to move with the child to Georgia. See Baures v. Lewis, 167 N.J. 91 (2001).

By order dated September 9, 2011, a Family Part judge awarded joint legal custody of the child to both parents, but temporarily designated the mother as the primary residential parent, with the father to have visitation rights on a set schedule. The order also ordered the parties to share the expense of a custody neutral assessment (CNA) and set a November 7, 2011 date for a further decision on the parties' competing claims for child custody and a Baures hearing. The order also restrained the mother from taking the child to Georgia.

However, the mother later filed an OSC seeking permission to temporarily take the child to Georgia, where they would live with plaintiff's parents. She claimed she was unemployed and would become homeless if she remained in New Jersey. In her certification in support of the OSC, the mother acknowledged: "I realize that I am subject to the jurisdiction of this Court, I realize that I will be required to come back for a hearing . . . and I also realize that New Jersey will continue to be the home state for jurisdictional purposes."

By order dated November 22, 2011, the Family Part judge granted the mother's application to "temporarily remove the minor child . . . to Georgia" conditioned on her returning with the child for an additional hearing on December 12, 2011. The order stated that if the CNA still had not been "done by December 12, 2011," the court would "conduct a further hearing regarding plaintiff being able to remain in Georgia with the child." On December 6, 2011, the mother filed her pre-hearing submission for the Baures hearing. Unfortunately, the Baures hearing was delayed, in part because the father delayed in submitting his share of the cost of the CNA.

By order dated December 12, 2011, the Family Part judge continued plaintiff's temporary permission to keep the child in Georgia. He also set up a visitation schedule for the child to be brought to New Jersey periodically for visits with the father at his parents' home in Swedesboro, New Jersey. The order specifically provided that "[t]he State of New Jersey shall keep jurisdiction of this matter." The order further set a schedule for filing of the father's pre-hearing Baures submissions, and provided that the court would thereafter schedule either a new hearing date or a case conference.

On January 31, 2012, a second Family Part judge entered a child support order. On February 3, 2012, the father filed his Baures pre-hearing submissions, strenuously objecting to the mother's plan to permanently relocate the child to Georgia. He stated that he lived in New Jersey and was training for a law enforcement career in New Jersey, and contended that the mother could as easily obtain employment in New Jersey as in Georgia. He also pointed out the hardship caused by having his daughter living 800 miles away. On February 15, 2012, the father submitted a money order to pay for his share of the CNA.

On February 20, 2012, the father filed a motion to modify his child support obligation. His motion noted that there was a pending child custody hearing, although there was a temporary order in place. His motion papers listed his home address as Swedesboro, New Jersey. The father also filed a separate application for "post dispositional relief" to address his visitation rights pending completion of the CNA. His application noted that the CNA process was "backlogged till the end of May" and he had not seen his daughter in several months.

On May 1, 2012, a third Family Part judge entered an order denying the father's motion to reduce child support but granting his application for visitation. On May 16, 2012, the father, acting pro se, filed a motion for reconsideration of the denial of his motion to reduce child support. In that motion, he indicated that he now lived in Pennsylvania but was employed by a lawn service in Blackwood, New Jersey.

On July 5, 2012, the father's newly-retained attorney sent the third Family Part judge a letter indicating that he was entering an appearance on his client's behalf and stating that his client would be withdrawing the pro se reconsideration motion. On July 6, 2012, the mother's attorney sent the judge a letter acknowledging that the motion, previously scheduled for July 10, was going to be withdrawn, and asking that the court use the July 10 date for an in-person status conference. In his letter, the attorney also stated: "My office has been advised that since my client is in Georgia and Mr. Douglas is in Pennsylvania that the court does not have jurisdiction and the CNA money is going to be returned to my client and Mr. Douglas."2 The attorney's letter inquired whether the court was going to retain jurisdiction over "the custody matter."

After a brief discussion on the record on July 10, 2012, during which the father's attorney objected to the court relinquishing jurisdiction because of the pending Baures application, and the mother's attorney took no firm position on the issue, the third Family Part judge decided to relinquish jurisdiction. The judge briefly stated that the New Jersey court's resources should not be used "in this custody dispute between two nonresidents." The judge did not further discuss the court's asserted lack of jurisdiction. Nor did he address the multiple factors set forth in N.J.S.A. 2A:34-71b(1)-(8), governing forum non conveniens, or give defendant the opportunity "to submit information" relevant to that issue, as required by N.J.S.A. 2A:34-71b; see Griffith v. Tressel, 394 N.J. Super. 128, 148 (App. Div. 2007).

Although no motion was filed on the jurisdiction issue, and neither party had briefed the issue, the July 10, 2012 order recited:

Motion to determine jurisdiction is granted. Application for custody should be filed in proper home state. Plaintiff and child are residents of Georgia and have been for seven months Defendant is a resident of Pennsylvania. State of New Jersey relinquishes jurisdiction with respect to custody and child support. . . . Parenting time of alternating six weeks remains in full force and effect.

We conclude that the order was entered in error. Under the New Jersey Uniform Child Custody Jurisdiction and Enforcement Act (NJUCCJEA), the New Jersey court obtained exclusive, continuing jurisdiction over the issue of child custody when it entered the September 9, 2011 order. See N.J.S.A. 2A:34-66a ("a court of this State that has made a child custody determination . . . has exclusive, continuing jurisdiction over the determination"). That order contemplated a series of additional proceedings and determinations that had not occurred when the third judge relinquished jurisdiction. New Jersey's exclusive continuing jurisdiction over the child custody determination continues until neither the child nor the parents "have a significant connection with this State," N.J.S.A. 2A:34-66a(1), or "neither the child, nor a parent . . . presently resides in this State." N.J.S.A. 2A:34-66a(2).3

In order to move the child to Georgia over defendant's objection, plaintiff needed the court's approval of her Baures application. A decision on that application required the court to engage in thorough consideration of a host of factors relevant to the child's interest:

[I]n assessing whether to order removal, the court should look to the following factors relevant to the plaintiff's burden of proving good faith and that the move will not be inimical to the child's interest: (1) the reasons given for the move; (2) the reasons given for the opposition; (3) the past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move; (4) whether the child will receive educational, health and leisure opportunities at least equal to what is available here; (5) any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location; (6) whether a visitation and communication schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child; (7) the likelihood that the custodial parent will continue to foster the child's relationship with the noncustodial parent if the move is allowed; (8) the effect of the move on extended family relationships here and in the new location; (9) if the child is of age, his or her preference; (10) whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent; (11) whether the noncustodial parent has the ability to relocate; (12) any other factor bearing on the child's interest.

[Baures, supra, 167 N.J. at 116-17.]

As a matter of law, until the New Jersey court decided the Baures application, based on those factors, the child's residence for child custody purposes was not Georgia; it was New Jersey. Therefore, the trial court's decision based on a finding that the child "resided" in Georgia was erroneous. More importantly, it would utterly circumvent the principles set forth in Baures to let a parent temporarily move the parties' child out of State, and then invoke the child's absence from New Jersey as a basis to relinquish jurisdiction and avoid deciding the Baures application. Unfortunately, that is what happened here.

Further, as a practical matter, the child and the father still had a significant connection to New Jersey. See N.J.S.A. 2A:34-66a(1). Since the September 2011 order was entered, the father's visits with the child had always been at his parents' home in Swedesboro, New Jersey. Moreover, although he lived across the State line in Pennsylvania, the father worked in New Jersey. Part of the father's objection to the Baures application was the inconvenience of having the child moved to a state that was so far away. Even after the father moved to Pennsylvania, the child's relocation to Georgia would still pose a significant barrier to visitation. The father and the child were both entitled to a final decision from the New Jersey court on the Baures application. The trial court also made no findings explaining why the courts of Pennsylvania or Georgia were more appropriate to decide the underlying dispute between the parents over which of them should have residential custody of the child.

Finally, given the father's objection to the court relinquishing jurisdiction, it was inappropriate for the trial judge to decide the issue on the basis of a letter from the mother's attorney rather than on the basis of a formal motion and briefing. Proceeding in that fashion violated the provisions of N.J.S.A. 2A:34-71b, which requires a judge to "allow the parties to submit information" before deciding whether New Jersey is "an inconvenient forum." Additionally, one factor in the decision under N.J.S.A. 2A:34-71b, is "the length of time the child has resided outside this State." As previously noted, that was not an applicable factor in the context of this case, because for legal purposes the child still resided in this State. Consequently, whether the decision was based on lack of jurisdiction or forum non conveniens, it was erroneous.

Accordingly, we reverse the order relinquishing jurisdiction and remand this case to the Family Part.

1 Plaintiff has two children. Defendant denies paternity as to the older child. In this opinion, we will refer to "the child," meaning the younger child as to whom he admits paternity.

2 As plaintiff's attorney told the judge at the July 10 conference, despite the pending custody and Baures applications, an employee in the Family Division told him that "the CNA's not going to be done, [and] the money was going to be refunded because neither party lives in New Jersey."

3 Even if the court possesses jurisdiction, it may decline to exercise jurisdiction if it determines that New Jersey is an inconvenient forum. N.J.S.A. 2A:34-71. If the court does so on that ground, it shall not immediately dismiss the New Jersey proceedings, but shall stay them until a proceeding is commenced in the more convenient forum. N.J.S.A. 2A:34-71c.