Opinion
DOCKET NO. A-1258-14T2
11-18-2015
JULIE CRAFT, Plaintiff-Appellant, v. BENJAMIN BUGBEE, Defendant-Respondent.
Ron Reich argued the cause for appellant (Simon Law Group, attorneys; Mr. Reich, of counsel and on the brief). Paul F. Clausen argued the cause for respondent (Clausen & Associates, attorneys; Mr. Clausen, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Koblitz and Gilson. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-131-04. Ron Reich argued the cause for appellant (Simon Law Group, attorneys; Mr. Reich, of counsel and on the brief). Paul F. Clausen argued the cause for respondent (Clausen & Associates, attorneys; Mr. Clausen, on the brief). PER CURIAM
On March 24, 2004, the Chancery Division, Family Part, issued a final judgment of divorce (JOD) dissolving the six-year marriage between plaintiff Julie Craft and defendant Benjamin Bugbee. The JOD incorporated a "Parenting Time" agreement (PTA) negotiated by the parties with the assistance of private counsel that comprehensively addressed all of the major issues associated with the custody and parenting time arrangements of their two sons, who are now seventeen and fifteen years old. Pursuant to the PTA, defendant consented to plaintiff relocating to California with the boys, provided New Jersey retain exclusive continuous jurisdiction to adjudicate any disputes related to custody and parenting time that may arise "for as long as defendant resides in this State."
Although under this arrangement plaintiff has physical custody of the children, the parties agreed to "joint legal custody," a term they described in detail in paragraph 1, subsections A to E of the PTA. --------
In this appeal, plaintiff seeks the reversal of the most recent order entered by the Family Part denying her application to transfer jurisdiction over these issues to California. We affirm.
The parties' post-judgement relationship has been highly contentious and mired in a steady stream of motions filed mostly by plaintiff seeking to undue the part of the PTA that confers this State with the exclusive jurisdiction to decide these issues. The Family Part has consistently upheld this key part of the parties' agreement. Defendant has also filed a number of motions related to the logistical obstacles of implementing this cross-continental parenting time arrangement.
With respect to the issue before us in this appeal, we note that in November 2013, plaintiff filed a motion in the Family Part in Hunterdon County, seeking, inter alia, "that New Jersey decline jurisdiction on the ground that it is an inconvenient forum jurisdiction and relinquishing jurisdiction to California as a more appropriate forum." Judge H. Mathew Curry carefully reviewed plaintiff's arguments and explained his reasons for denying the motion in a memorandum opinion attached to the order he entered on December 20, 2013.
Relying on the standard established under New Jersey's version of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), N.J.S.A. 2A:34-53 to -95, principally N.J.S.A. 2A:34-71, Judge Curry noted that the parties "specifically contemplated" the inherent logistical difficulties associated with carrying out a parenting time agreement that involved travel arrangements over great distances. Judge Curry did not find any evidence to support plaintiff's claim that California was the more appropriate forum to adjudicate disputes that arise from such an agreement. Finally, Judge Curry found that New Jersey courts were "most familiar with the case, having heard this matter since the complaint for divorce was filed."
Plaintiff did not move for reconsideration nor seek appellate review of Judge Curry's December 20, 2013 order. Instead, on September 10, 2014, plaintiff again moved before the Family Part seeking that New Jersey relinquish jurisdiction to decide parenting time and custody issues to California. At oral argument in this appeal, plaintiff's counsel acknowledged the September 10, 2014 motion was identical in all material respects to the motion Judge Curry denied less than nine months earlier. Despite this, Judge Curry once again carefully reviewed plaintiff's factual allegations and legal arguments, considered defendant's response in opposition, and reached the same legal conclusion. The judge found plaintiff had not presented any evidence or legal grounds to support her motion to vitiate the agreement she negotiated and agreed to abide by after conferring with and receiving the advice of her privately retained counsel.
Judge Curry gave the following explanation in support of his ruling:
It is undisputed that plaintiff's relocation was predicated upon the parties' agreement that New Jersey would retain jurisdiction over such matters as are at issue here. Additionally, for the court to disregard the parties' agreement opens the door for other such litigants to merely feign agreement at the outset, with the intention of later returning to court to challenge its validity.
The nature and location of the evidence required to resolve the pending litigation falls on the side of the defendant, as all previous orders and agreements have been executed in New Jersey. However, the
testimony of the children may be obtained in either location, depending on how a proceeding would fall into the parenting time schedule.
There is no evidence that the courts of either state lack the authority to decide the issue expeditiously and the procedures necessary to present the evidence.
The court find[s] that, based upon the documented history of this matter, New Jersey courts, having heard this matter since the complaint for divorce was filed, have a superior familiarity with the facts and issues of the pending litigation.
In deciding whether to decline jurisdiction, the threshold question a court is required to address is whether "the court of another State is in a better position to make the custody determination, taking into consideration the relative circumstances of the parties." S.B v. G.M.B., 434 N.J. Super. 463, 472 (App. Div. 2014) (quoting Griffith v. Tressel, 394 N.J. Super. 128, 148 (App. Div. 2007)). Here, Judge Curry expressly found the courts in this State had a greater familiarity with the case and were in a superior position to adjudicate the issues concerning cross-continental parenting time arrangements than California. The record supports the trial court's finding in this respect. Cesare v. Cesare, 154 N.J. 394, 411 (1998).
The PTA was expressly predicated on defendant's residency in this State as the key factor to confer exclusive jurisdiction to New Jersey. Defendant continued to reside in this State throughout the contentious course the case took after the JOD, and continues to do so to this date. This factor favors the preservation of the status quo and the enforceability of the PTA. Griffith, supra 394 N.J. Super, at 142; N.J.S.A. 2A:34-66(a)(1)(2). Plaintiff has also failed to cite to anything in the record that establishes the judge's decision to deny her motion constituted an abuse of his discretionary authority. Greely v. Greely, 194 N.J. 168, 178 (2008). In short, we discern no legal grounds to disturb Judge Curry's well-reasoned decision. R. 2:11-3(e)(1)(E).
We also discern no legal basis to disturb Judge Curry's decision to deny plaintiff's application for counsel fees. Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008). The judge found plaintiff had the financial means to pay for her own legal representation. R. 5:3-5(c). More significantly, Judge Curry noted "that plaintiff's previous cross-motion was nearly identical to the current application, making the latter, in essence, an untimely filed motion for reconsideration." This finding by the trial court also supports the impression that plaintiff filed this motion as a means of circumventing the time restriction in Rule 2:4-1(a) for filing a timely appeal from a final judgment of the trial court. We were thus initially inclined to dismiss the appeal as untimely. We have opted to forgo this approach and address the merits on the issues raised by plaintiff to dispel any doubts about the correctness of Judge Curry's decision.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION