SUZANNE A. MORGAN v. THOMAS S. PFAU

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RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

SUZANNE A. MORGAN,

Plaintiff-Appellant,

v.

THOMAS S. PFAU,

Defendant-Respondent.

__________________________________

December 8, 2014

 

Submitted November 12, 2014 Decided

Before Judges Messano and Ostrer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FD-05-0299-11.

Russell & Laughlin, P.A., attorneys for appellant (Richard A. Russell, on the briefs).

Scott J. Capriglione and Diane Mellott, of the Pennsylvania bar, admitted pro hac vice, attorneys for respondent (Mr. Capriglione and Ms. Mellott, on the brief).

PER CURIAM

Plaintiff Suzanne A. Morgan appeals from the Family Part's September 11, 2013, order denying her application to modify child support, which had last been set by a Pennsylvania court. The court in Cape May County held that it lacked subject matter jurisdiction to consider plaintiff's application. In support of her claim of error, plaintiff relies on two consent orders, filed in the Cape May County Family Part, on October 29, 2010 and January 5, 2011. She asserts that in those orders, she and her former husband, defendant Thomas Pfau, agreed that the New Jersey courts in Cape May County would have exclusive jurisdiction over all matters pertaining to the parties' two children, including child support.

Having reviewed plaintiff's arguments in light of the facts and applicable law, we affirm the court's order based on a lack of subject matter jurisdiction. We agree with the trial court's determination that the two consent orders were ambiguous, and plaintiff did not meet her burden to prove they transferred jurisdiction over support to the court in Cape May County. Moreover, under the 1996 version of the Uniform Interstate Family Support Act as adopted in New Jersey, N.J.S.A.2A:4-30.65 to 30.123 (UIFSA), a consent to transfer jurisdiction is ineffective unless it is duly filed with the originating court, in this case, Pennsylvania. SeeN.J.S.A.2A:4-30.114(a)(2).1 As that was not done, Pennsylvania retained subject matter jurisdiction.

I.

We discern the following facts from the record. The parties were divorced in August 2002 by a final divorce decree entered in the Court of Common Pleas of Montgomery County, Pennsylvania. They had been married almost seven years, and had two children. The parties agreed in their property settlement agreement (PSA) to waive alimony and to grant plaintiff primary residential custody. The PSA did not address child support.

However, the parties entered a consent order on child support in November 2002 in the Montgomery County court. Under the order, defendant was required to pay $300 a week, which would drop to $275 on September 1, 2004, and to $200 on September 18, 2009. In March 2004, plaintiff obtained an order from the Pennsylvania court in Delaware County where she was living, but under the same docket number as the divorce decree, permitting her to relocate with the children to Linwood, New Jersey. Defendant remained a resident in Pennsylvania.

A little over six years later, in the course of resolving an alleged incident of domestic violence, the parties entered the first of the two jurisdictional orders. After an alleged altercation during the transfer of children, plaintiff obtained a temporary restraining order (TRO) from the Family Part in Cape May County. After the parties appeared for the final hearing on October 20, 2010, but before trial commenced, plaintiff agreed on the record to dismiss her domestic violence complaint. In connection with her dismissal, the parties reached other agreements pertaining to the children. The parties' respective counsel addressed the terms on the record, with the understanding they would embody the terms in a formal order thereafter. They agreed to mutual civil restraints and procedures regarding the transfer of the children to reduce contact with each other.

Plaintiff's counsel addressed the agreement regarding jurisdiction: "[B]oth parties are stipulating consenting to the docketing of the Final Judgment of Divorce that addresses custody in Cape May County, New Jersey. And, therefore, jurisdiction from here henceforth, as relates to custody, visitation with regard to the minor children, will be in Cape May County."

None of plaintiff's counsel's comments expressly referred to child support, as distinct from custody issues. Defendant's counsel, after referring only to custody issues, referred to jurisdiction over support in the course of expressing his uncertainty about "the procedural fashion in which the custody order from Delaware County should be brought over into the Superior Court in Cape May County." He stated,

I have agreed, nevertheless, and so has my client, . . . after this moment, all custody and visitation and parenting issues are to be decided by the Superior Court in Cape May County. We have absolutely agreed to that.

. . . .

I know there's a procedure that when people get divorced in a foreign jurisdiction and then they wind up being residents here, a part of that Final Judgment has custody, visitation and support issues, that the procedure is to docket that judgment in this court . . . ."

[(Emphasis added).]

The parties subsequently executed and filed, on October 29, 2010, a consent order memorializing their agreement, which apparently was drafted by defendant's counsel. In addition to addressing at length matters pertaining to parenting time and exchanges of the children, the order arguably addressed jurisdiction over support, stating: "Any and all further issues between the parties involving custody, parenting time and parenting duties and obligations shall become the subject matter of an action only in the Cape May County Vicinage of the Superior Court of New Jersey." (Emphasis added). A preceding paragraph addressed contact between the parties and stated it "shall become part of an amendment to a judgment previously entered in the Court of Common Pleas of Delaware County, Pennsylvania, in Docket No. 04-17412or in an action subsequent to the within matter as docketed in the Cape May County Vicinage of the Superior Court of New Jersey."

In December 2010, plaintiff filed a verified complaint against defendant wherein she sought an "[o]rder establishing jurisdiction and venue in this proceeding for all future matters affecting the custody, supportand care of the aforesaid children born of this marriage . . . ." (Emphasis added). The complaint was resolved by a second consent order. Entered apparently without the parties' personal appearances, the January 5, 2011 consent order broadly referred to "all matters affecting the minor children," but then referred only to statutes pertaining to child custody. "Jurisdiction and venue of all matters affecting the minor children . . . are hereby transferred to the jurisdiction of the Superior Court of New Jersey, Chancery Division-Family Part, Cape May County, pursuant to N.J.S.A. 2A:34-65 et seq. and N.J.S.A. 9:2-1." (Emphasis added). The January 2011 order incorporated by reference "prior [o]rders entered in the Court of Common Pleas in the matter of Suzanne A. Morgan v. Thomas S. Pfau, No. 04-1741, affecting the children," and the amendments contained in the prior New Jersey order.

The parties' jurisdictional dispute arose in 2013, when they filed competing applications in Pennsylvania and New Jersey to modify child support. On March 7, 2013, defendant petitioned the Court of Common Pleas in Montgomery County for a reduction in child support based on an alleged increase in plaintiff's income. About a month later, plaintiff filed an application to increase child support in Family Part in Cape May, citing an increase in the cost of living, among other factors.

Defendant's counsel questioned the Family Part's jurisdiction, asserting that the parties agreed only to transfer jurisdiction over custody matters. Plaintiff pro se likewise questioned the Pennsylvania court's jurisdiction, in a letter addressed generally to the court's "Domestic Relations Section." Plaintiff asserted that the January 2011 consent order transferred jurisdiction over all matters affecting the children, including support. She did not appear in the Pennsylvania proceeding. Meanwhile, her New Jersey counsel urged the Family Part judge to exercise jurisdiction over her modification request.

The Pennsylvania court entered an order on May 13, 2013, setting monthly support at $838.10, including $81.78 for medical insurance plaintiff provided. The order noted that plaintiff "was served, [and] failed to appear."

Judge John R. Rauh determined that a plenary hearing was necessary to determine whether the consent orders covered support matters. Even if they did, the judge questioned whether the orders were legally effective.

At the plenary hearing, the court heard testimony from the parties, as well as from the attorney who represented plaintiff in the domestic violence matter and negotiated the first consent order. Plaintiff testified that a significant consideration in her decision to dismiss her domestic violence complaint was the agreement that all matters would be transferred to New Jersey and she would have no need to return to Pennsylvania. Plaintiff's counsel testified that he and defense counsel exchanged multiple drafts of the order "and the objective was that the entire matter in Pennsylvania would now be docketed . . . in Cape May County." The drafts were not offered in evidence. Counsel also asserted it would have made no sense to exclude support matters.

Defendant testified that he did not intend to transfer jurisdiction over support matters in 2010, although he understood that plaintiff was seeking the transfer. He claimed that his attorney assured him that generally, jurisdiction over custody follows the children, but jurisdiction over support did not. Defendant also stated his understanding that if jurisdiction over the support order were moved to New Jersey, he would be required to support the children through their college years.3

Regarding the meaning of the parties' consent orders, Judge Rauh concluded that he was "unable to conclude there was an agreement with regard to child support." He relied on the fact that the 2010 and 2011 orders referenced the Pennsylvania docket number of the divorce decree and custody order, not the child support order; there was no explicit discussion of support at the 2010 hearing; and since entry of the orders, both parties continued to allow Pennsylvania officials to administer the collection and payment of child support.

The court also determined that even if the parties had consented to transfer jurisdiction over support, such consent would have been ineffective. Citing Philipp v. Stahl, 172 N.J.293 (2002), the court held that Pennsylvania retained jurisdiction in the absence of the filing of an effective consent.

Plaintiff presents the following points for our consideration

POINT I: THE TRIAL COURT'S DECISION WAS AGAINST THE OVERWHELMING WEIGHT OF EVIDENCE AND IS ARBITRARY.

POINT II: THE RECORD IS TAINTED BY THE ADMISSION OF CLEARLY IMPERMISSIBLE HEARSAY ATTRIBUTED TO DEFENDANT'S FORMER NEW JERSEY ATTORNEY WHO WAS NOT PRESENT TO TESTIFY.

POINT III: PLAINTIFF WAS IRREPARABLY HARMED BY THE TREATMENT OF THE TRIAL COURT BY FIRST TELLING HER THAT IT WAS RETAINING JURISDICTION, AND THEN, AFTER HER SUPPORT WAS REDUCED IN PENNSYLVANIA, CHANGING ITS MIND AND ULTIMATELY DENYING JURISDICTION.

II.

We are confronted with the same two issues identified by the trial court: (1) did the parties consent to transfer subject matter jurisdiction over child support to New Jersey; and (2) if they did, was their agreement effective? We address these in turn.

A.

Whether the parties agreed to transfer jurisdiction over child support issues implicates principles of contract interpretation. We review de novo the trial court's interpretation of a contract. Kieffer v. Best Buy, Inc., 205 N.J.213, 222-23 (2011); Fastenberg v. Prudential Ins. Co. of Am., 309 N.J. Super. 415, 420 (App. Div. 1998). We apply contract principles to ascertain the meaning of a consent order settling litigation. See, e.g., Jennings v. Reed, 381 N.J. Super. 217, 227 (App. Div. 2005) (stating that "[a] settlement between parties to a lawsuit is a contract like any other contract"). That principle applies to a consent order governing domestic relations. Pacifico v. Pacifico, 190 N.J.258, 266 (2007) (applying to property settlement agreement the "basic rule of contractual interpretation that a court must discern and implement the common intention of the parties"). "Voluntary accommodations regarding matrimonial differences are highly desirable and make a major contribution to the fulfillment of 'the strong public policy favoring stability of arrangements.'" Petersen v. Petersen, 85 N.J.638, 645 (1981) (quoting Smith v. Smith, 72 N.J.350, 360 (1977)).

Thus, we seek to ascertain "the reasonably certain meaning of the language used, taken as an entirety, considering the situation of the parties, the attendant circumstances, the operative usages and practices, and the objects the parties were striving to achieve." George M. Brewster & Son, Inc. v. Catalytic Constr. Co., 17 N.J.20, 32 (1954). Extrinsic evidence includes the parties bargaining history. SeeRestatement (Second) of Contracts 214(c) (1981) (stating that "negotiations prior to . . . the adoption of a writing are admissible in evidence to establish . . . the meaning of the writing"). The subsequent behavior of parties to an agreement is also relevant evidence of parties' intent and understanding. SeeMichaels v. Brookchester, Inc., 26 N.J.379, 388 (1958) ("Where ambiguity exists, the subsequent conduct of the parties in the performance of the agreement may serve to reveal their original understanding."); see also Restatement (Second) of Contracts 202(4) comment g (1981) ("The parties to an agreement know best what they meant, and their action under it is often the strongest evidence of their meaning.").

However, extrinsic evidence does not include a party's subjective or secret intentions; only a party's objective manifestations of intent are relevant. Friedman v. Tappan Dev. Corp., 22 N.J.523, 531 (1956) ("It is not the real intent but the intent expressed or apparent in the writing that controls."); see also Brawer v. Brawer, 329 N.J. Super. 273, 283 (App. Div. 2000), certif. denied, 165 N.J.138 (2000).

Whether a contract is ambiguous is a legal question for the court. See, e.g., Nester v. O'Donnell, 301 N.J. Super. 198, 210 (App. Div. 1997). If there is ambiguity, then the resolution of the ambiguity is a fact question. Michaels, supra, 26 N.J.at 388. A contract is ambiguous if it is susceptible to two reasonable alternative interpretations. M.J. Paquet, Inc. v. N.J. Dep't of Transp., 171 N.J.378, 396 (2002). However, a plenary hearing is not required to resolve the meaning of an ambiguous contract term if, after considering all competent relevant materials, a genuine issue of material fact does not remain. In re Teamsters Indus. Emps. Welfare Fund, 989 F.2d 132, 137 (3d Cir. 1993). On the other hand, when a plenary hearing is appropriate, a reviewing court must defer to the fact-finding of the trial court, if supported by substantial, credible evidence, particularly if the finding is by a court of the Family Part. Cesare v. Cesare, 154 N.J.394, 413 (1998).

Applying these principles, we agree the language used in the two consent orders was ambiguous. The 2010 order did not refer expressly to support. Its transfer of matters pertaining to "parenting duties and obligations" may be construed to encompass the obligation to pay support, or, alternatively, obligations regarding parenting. The 2011 order broadly states that the parties have transferred "all matters affecting the minor children," but then, limits that statement by providing that the transfer is "pursuant to N.J.S.A.2A:34-65, et seq.," a reference to the Uniform Child Custody Jurisdiction Act, and "N.J.S.A.9:2-1[,]" which also pertains to custody.

Other language in the orders does not resolve the ambiguity. The 2010 order's provision regarding parenting issues states that it amends the "judgment previously entered in the Court of Common Pleas of Delaware County, Pennsylvania, in Docket No. 04-1741" which may be interpreted to refer only to the relocation order plaintiff obtained when she lived in Delaware County. Likewise, the 2011 order incorporates "prior [o]rders entered in the Court of Common Pleas in the matter of Suzanne A. Morgan v. Thomas S. Pfau, No. 04-1741, affecting the children" where the reference to the docket number may be interpreted to exclude the child support order, which did not bear that docket number.

In view of the ambiguity that plagued both orders, the trial court correctly determined that a plenary hearing was necessary. Generally, the party who claims a state court lacks subject matter jurisdiction bears the burden to establish the want of jurisdiction. Thompson v. City of Atlantic City, 190 N.J.359, 379 (2007) (citing Turner v. Bank of N. Am., 4 U.S. 8, 11 (4 Dall.), 1 L. Ed. 718, 719 (1799) for the proposition that "subject matter jurisdiction is presumed for courts of general jurisdiction unless proved otherwise").

However, it was appropriate in this case to allocate to plaintiff the burden to show the basis for the Family Part's jurisdiction, including proving that the parties' consent extended to support issues. As we discuss below, UIFSA conditions our court's jurisdiction to modify a child support order issued in another state, upon the filing of consent. N.J.S.A.2A:4-30.114(a)(2). The proponent of the consent should bear the burden to prove its existence and meaning. A plaintiff must present "a clear showing" to establish consent to "a subsequent court's modification of another state's child support order." Peace v. Peace, 325 N.J. Super.122, 131 (Ch. Div. 1999) (applying UIFSA); see also Bednarsh v. Bednarsh, 282 N.J. Super. 482, 486-93 (Ch. Div. 1995) (applying the Federal Full Faith and Credit for Child Support Orders Act, 28 U.S.C.A. 1738B). Our burden allocation is consistent with the principle that a party challenging the validity of a foreign judgment in this case, plaintiff's challenge to the Pennsylvania modification order bears the burden to show that jurisdiction was lacking in the issuing court. See, e.g., Zieper v. Zieper, 14 N.J.551, 566-67 (1954); Grunauer v. Grunauer, 80 N.J. Super. 531, 537 (App. Div. 1963); see alsoN.J.S.A.2A:4-30.110 (stating that a party contesting the validity or enforcement of a foreign order has the burden of proving enumerated defenses).

Given our deference to the trial court's factual findings, we shall not disturb the court's conclusion that plaintiff had failed to meet her burden to show that the parties intended to transfer jurisdiction over support. There was sufficient evidence to support the court's conclusion. The parties' testimony regarding their subjective intent was of no significance, for the reasons stated above. On the other hand, plaintiff presented no compelling evidence of objective manifestations of intent to support her interpretation, such as statements on the record before entry of the 2010 order, or prior drafts of the order. Also, in this case, plaintiff's failure to take any action to register the child support order here, and her continued receipt of support through the Pennsylvania system, undermine her claim.

B.

Even if the parties consented to the transfer of jurisdiction to New Jersey, the consent would have been ineffective, because it was not filed in Pennsylvania. Under UIFSA, New Jersey's power to modify the Pennsylvania child support order was contingent on plaintiff filing an effective consent in Pennsylvania. N.J.S.A.2A:4-30.114 addresses the power of a state like New Jersey to modify another state's order

a. After a child support order issued in another state has been registered in this State,4the registering tribunal of this State may modify that order only if section 52 of this act does not apply5and after notice and hearing it finds that


. . . .

 
(2) the child or a party who is an individual is subject to the personal jurisdiction of the tribunal of this State and all of the individual parties have filed written consents in the issuing tribunal for a tribunal of this State to modify the support order and assume continuing, exclusive jurisdiction over the order. . . .

We have found no published opinions in New Jersey construing jurisdiction over modification based on the filing of a consent in the issuing state.6 However, the comments to the Uniform Law highlight the necessity to file consents in the issuing state

[I]f the other party agrees, either the obligor or the obligee may seek assertion of jurisdiction to modify by a tribunal of the state of residence of either party. In contrast to Subsection (a)(1) [N.J.S.A. 2A:4-30.114(a)(1)] the written consents of the individual parties to an agreement to submit modification of child support to a tribunal of another state must be filed with the issuing tribunal.

[Unif. Interstate Family Support Act (1996) 611 comment, 9 U.L.A. 445 (2015) (emphasis added).]7

We also construe the provision mindful of UIFSA's goal to assure that only one child support order is in place, and to avoid multiple contradictory orders. Philipp v. Stahl, 344 N.J. Super. 262, 277 (App. Div. 2001) (Wecker, J., concurring in part, dissenting in part) (stating that purpose of UIFSA includes "to establish ground rules for modifying" an order when one or both parties have moved from the issuing state, "and to do so in a way that avoids conflicting orders issued by courts of different states"), rev'd on dissent, 172 N.J.293 (2002). The trial court appropriately stayed its hand, in compliance with express provisions of UIFSA requiring the filing of consent in the issuing state, and in furtherance of the general goal of avoiding multiple contradictory orders.

Defendant's remaining points lack sufficient merit to warrant discussion in a written opinion. R.2:11-3(e)(1)(E).

Affirmed.


1 New Jersey has not adopted the 2001 or 2008 version of the uniform law; both amend and clarify in various respects the 1996 law. See Marshak v. Weser, 390 N.J. Super. 387, 392-93 (App. Div. 2007) (comparing 2001 and 1996 versions of UIFSA).

2 As noted, the divorce decree and child support orders were entered in Montgomery County, the former under Docket No. 04-1741, and the latter bearing the number 394103387. The relocation order was entered in Delaware County, but included Docket No. 04-1741.

3 Defendant was under a misapprehension. See Marshak, supra, 390 N.J. Super. at 391 (stating that, pursuant to UIFSA, a New Jersey court could not "modify [a] Pennsylvania child support order to provide a longer duration than Pennsylvania law would allow"); N.J.S.A. 2A:4-30.114(c).

4 We do not address whether plaintiff satisfied the registration requirements. See N.J.S.A. 2A:4-30.105, -30.112.

5 Section 52, codified at N.J.S.A. 2A:4-30.116, addresses jurisdiction where "all of the individual parties reside in this State [New Jersey] and the child does not reside in the issuing state [Pennsylvania] . . . ."

6 The trial court misplaced reliance on N.J.S.A. 2A:4-30.72(a), which states

a. A tribunal of this State [New Jersey] issuing a support order consistent with the law of this State has continuing, exclusive jurisdiction over a child support order

(1) as long as this State remains the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued; or

(2) until all of the parties who are individuals have filed written consents with the tribunal of this State for a tribunal of another state to modify the order and assume continuing, exclusive jurisdiction.

The question before the court was its power to modify an order of another state. The court in Pennsylvania, not New Jersey, issued the support order and acquired "continuing, exclusive jurisdiction." N.J.S.A. 2A:4-30.73(a) empowered our court, as an "initiating tribunal" to request the Pennsylvania court to enforce or modify its order. However, plaintiff did not seek that assistance.

7 See N.J.S.A. 2A:4-30.65 (defining "issuing tribunal" and "responding tribunal"); and N.J.S.A. 2A:4-30.70 (stating that New Jersey "may serve . . . as a responding tribunal for proceedings initiated in another state").