Opinion
DOCKET NO. A-0679-12T3 A-4889-12T3
04-09-2014
RUPERT E. BAPTISTE, Plaintiff-Appellant, v. FATOU A. JALLOW-BAPTISTE, n/k/a FATOU A. JALLOW Defendant-Respondent.
Anthony J. Van Zwaren, attorney for appellant in A-0679-12. Rupert E. Baptiste, appellant pro se in A-4889-12. Fatou A. Jallow-Baptiste, respondent pro se, in A-0679-12 and A-4889-12.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Nugent.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-2760-06, and Union County, Docket No. FM-20-669-14.
Anthony J. Van Zwaren, attorney for appellant in A-0679-12.
Rupert E. Baptiste, appellant pro se in A-4889-12.
Fatou A. Jallow-Baptiste, respondent pro se, in A-0679-12 and A-4889-12. PER CURIAM
Plaintiff Rupert E. Baptiste and defendant Fatou A. Jallow-Baptiste, now known as Fatou A. Jallow, married in 1997 and divorced in 2007. They have two children, twins. Since 2007, defendant has had custody of the twins and, with plaintiff's consent, has lived with them in Maryland. Plaintiff claims he has been denied visitation since they moved.
On a prior appeal, Baptiste v. Baptiste, No. A-5655-08 (App. Div. Oct. 29, 2010) (slip op. at 3) (Baptiste II), the panel noted that plaintiff acknowledged his consent, which he claimed was given under duress, to the defendant moving to Maryland with the children in 2007. See R. 1:36-3 (authorizing citation to an unpublished opinion where claim preclusion is implicated).
In addition to the appeal discussed above, plaintiff filed another appeal, A183507, which he withdrew and we dismissed without opinion. The Supreme Court denied review of that disposition. Baptiste v. Baptiste, 201 N.J. 155 (2010). Our prior opinion indicates that other appeals may have been filed, but no other decision was rendered and no other appeals are pending. Baptiste II, supra, slip op. at 4, 6.
In this opinion we address plaintiff's separate appeals from post-judgment orders entered by a judge of the Family Part in the Essex County vicinage. On June 21, 2013, we entered an order on plaintiff's motion for emergent relief consolidating the appeals.
In A-0679-12, plaintiff appeals an order of August 24, 2012. That order reflects the judge's denial of reconsideration of two orders he entered on June 22, 2012. The orders of June 22 address plaintiff's requests to: enforce his visitation rights under the judgment or modify custody; modify child support; and vacate the judgment of divorce due to defendant's fraudulent misrepresentation of marital status when they wed.
The judge did not reach the merits of plaintiff's request to enforce his visitation rights or modify custody on June 22, 2012. He denied that relief on jurisdictional grounds. On that issue, the June 22 orders collectively provide: New Jersey is an inconvenient forum for addressing the questions; all "proceedings as to custody and pertaining to custody and parenting . . . shall be decided by the Circuit Court for Montgomery County, Maryland"; and "previous orders pertaining to custody shall continue until a court with proper jurisdiction makes a determination on such."
In A-4889-12, plaintiff appeals an order of June 7, 2013, in which the judge denied his request for release of a risk assessment, home inspection report and psychological report, all subject to a protective order. The judge amended that order on June 11, 2013, explaining that the New Jersey courts no longer have exclusive and continuing jurisdiction over custody matters concerning the parties' children.
As discussed in Part I of this opinion, the judge misapplied New Jersey's Uniform Child Custody Jurisdiction and Enforcement Act (the Act), N.J.S.A. 2A:34-53 to -95. For that reason, we reverse and vacate the jurisdictional determinations. That dismissal is without prejudice to an application in a post- judgment action now pending in the Union vicinage. Thus, we leave the judge in that proceeding free to address that issue in light of current circumstances and in conformity with the Act.
After we granted emergent relief, the Essex vicinage transferred the case to the Union County vicinage. On February 14, 2014, a judge of the Family Part in Union entered an order directing actions preparatory to a hearing on enforcement of plaintiff's visitation rights. See R. 2:9-1(a) (authorizing enforcement of orders entered by the trial court despite the pendency of an appeal). That matter is now pending in the Union vicinage.
We obtained the information about the transfer to and the proceedings in the Union vicinage from the docket entries of the Family Parts in those vicinages recorded on the Family Automated Case Tracking System, commonly known as FACTS. This case was docketed as FM 07276006 in Essex, and it is now docketed as FM2066914 in Union.
For the reasons stated in Part II of this opinion, we affirm the second paragraph of the August 24, 2012 order, to the extent that it denies a plenary hearing on plaintiff's requests to modify child support and vacate the judgment of divorce. Our affirmance should not be understood to apply to a denial of a hearing related to a "custody proceeding" or "custody determination," which is defined to include visitation and legal and physical custody. N.J.S.A. 2A:34-54.
I
A. The procedural history and facts pertinent to the jurisdiction to enforce plaintiff's visitation right or modify custody.
The record on this appeal relevant to the custody and jurisdictional determinations is fairly characterized as inadequate and confusing. With the exception of the June 22, 2012 orders, all of the orders were entered without oral argument. Thus, there is only one transcript. Some of the confusion is attributable to the parties' production of selected documents rather than all required by Rule 2:6-1(a), which in addition to specified documents, requires inclusion of all other parts of the record "essential to the proper consideration of the issues," R. 2:6-1(a)(1)(I). Some of the confusion is attributable to the judge's factual findings, which do not address or resolve patent factual inconsistencies and disputes.
A different panel of this court encountered similar problems on a prior post-judgment appeal. See Baptiste v. Baptiste., No. A-5655-08 (App. Div. Oct. 29, 2010) (slip op. at 1-8) (Baptiste II). In the interest of judicial economy in any pending or future proceeding, we have prepared a statement of the facts concerning custody and parenting time as follows. Where orders and other evidential materials relevant to the custody determination are addressed in our prior decision but not included in this record, we rely on the panel's decision. Where we have been given orders or evidential materials not submitted or addressed on the prior appeal, we note any discrepancies between the facts as stated here and in our prior decision.
The age of the parties' twins is not clear. They are either nine or nineteen years of age. While the materials in the record uniformly state that the twins were born on a specified date in January, some provide 1995 and others provide 2005 as the year of their birth. Apparently, the papers submitted on the prior appeal were similarly confusing on that point. See id. at 2 ("glean[ing]" from the record that the children were born in 1995). Despite the relevance of the children's age to the custody determination, the jurisdictional question at issue and child support, the judge who entered these orders did not state their age.
A judgment of divorce was signed by a judge of the Family Part in the Essex vicinage on March 23, 2007, and it was certified as a true copy on May 5, 2007. The record includes materials referring to a judgment entered on March 23 and a judgment entered on May 5, 2007. Because there is nothing indicating that two judgments were entered in 2007, we conclude that this discrepancy is meaningless — simply the product of the fact that in some instances this judgment was identified by the date it was signed and in others it was identified by the date it was certified. Accordingly, we refer to this judgment as the 2007 judgment in order to avoid any future confusion about whether there were two judgments entered in 2007.
The 2007 judgment refers to and incorporates a settlement agreement, but the parties were unable to reduce their agreement to writing. Id. at 2-3. Nevertheless, the 2007 judgment includes provisions that are "ORDERED" or "ORDERED AND ADJUDGED" by the judge. The parties have treated as controlling a decretal provision of the 2007 judgment that includes a custody determination. It states that "[d]efendant shall have custody" and "[p]laintiff shall have visitation every other weekend." It further directs a "Risk Assessment to determine whether this visitation will be supervised or unsupervised," and it states that "[t]he parties agreed that the recommendation of the Risk Assessment shall be binding on this issue."
Another decretal paragraph of the 2007 judgment, not implicated here, provides for medical and educational decisions "to be made with the consent of both parties."
One order was entered in furtherance of plaintiff's visitation rights under the judgment. An order entered on January 22, 2008, directs probation to release the completed risk assessment within ten days and provides for visitation to proceed, supervised or unsupervised, "effective immediately following receipt of [the] assessment."
The panel's decision on the prior appeal states that the 2007 judgment was amended by a judgment issued on May 5, 2009. Id. at 5. That judgment is not in the record we have, but the panel explained that it "simply declared that the divorce was entered and that defendant could resume the use of her maiden name. It did not incorporate the terms of the property settlement agreement, nor did it address any issues regarding custody, visitation or child support." Ibid. (footnote omitted). Accordingly, we have no reason to think that the May 5, 2009 judgment vacates the decretal provision of the 2007 judgment addressing custody and parenting time.
Despite plaintiff's numerous post-judgment motions to enforce or modify parenting time, there has been no judicial determination on the impact of the status quo on the welfare of the twins. The delay in plaintiff's exercise of his visitation rights is attributable, in part, to confusion about the risk assessment. Id. at 4. The panel concluded that the risk "assessment was never completed." Ibid. The panel reached that conclusion based on its review of the transcript of a post-judgment proceeding on March 18, 2008.
Fortunately, the judge in the Union vicinage has entered an order that effectively addresses the dispute about plaintiff's compliance by directing another risk assessment.
After the March 18 hearing, on March 26, 2008, the judge wrote and advised the parties that they were mistaken about the risk assessment not being done. He wrote:
After you advised the court that there was no risk assessment, we explored it and probation provided us with a copy of a risk assessment that was done some time ago. MyThe foregoing letter is included in defendant's appendix. Apparently because she did not participate in the prior appeal, the panel did not have this letter. If, with this letter, the judge intended to condition plaintiff's visitation rights on obtaining a psychiatric evaluation, the record on this appeal does not include an order imposing that condition.
law clerk was instructed to forward a copy to each of you. The risk assessment recommends a psychiatric evaluation for Mr. Baptist[e], which must be completed prior to any parenting time.
Please, in writing to the court, advise [as to] the individual that you feel should be utilized to conduct the evaluation.
In any event, it now appears that plaintiff complied with the risk assessment in 2007. Although the risk assessment was done, we do not know if it is available. It is not in the record given to us. Moreover, this record includes evidence demonstrating efforts made by plaintiff and his attorney to obtain plaintiff's former attorney's file, which they claim were unsuccessful. The judge who decided these motions never indicated whether the court or probation has the risk assessment the prior judge referenced in the letter of March 26 set forth above.
The reasons for the court ordering a risk assessment are also unclear. The panel's decision on the prior appeal explains that "there were allegations made regarding plaintiff's violent conduct, though the judge never determined the validity of the claims; at least we can see no determination from the record presented." Id. at 3.
The record presented on this appeal is equally uninformative. We have found only two references in the record on this appeal to domestic violence. First, plaintiff certified that to his "knowledge the court never made any determination as to what should be done with the charge of domestic violence," and he stated that he did "not think there is any valid reason to bar" him from visiting his children. Second, there is a brief discussion of a restraining order in the transcript of the June 22, 2012 motion hearing. In a colloquy initiated by his court clerk, the judge advised that he had held a hearing and dismissed a temporary restraining order. The date of the temporary order was not mentioned.
In any event, in support of the motion to enforce his visitation rights or modify custody that led to entry of the June 22, 2012 order, plaintiff asserted that he underwent a psychological evaluation. He certified:
I admit I was visited by a clinical psychologist sent by the court in regards to the alleged incidents of domestic violence which I strongly deny. To the best of my knowledge the report was sent to the court and I was not permitted to see a copy of it.
The question of jurisdiction was raised by defendant in opposition to plaintiff's motion to enforce parenting time or modify custody. Although the record on this appeal does not include the materials submitted on that motion, the transcript of the motion hearing on June 22, 2012, which plaintiff filed with A-0679-12, demonstrates that defendant's attorney argued for a finding that Maryland, not New Jersey, is the more convenient forum. Defendant did not contend that New Jersey no longer had jurisdiction to modify the custody determination. Neither plaintiff nor his attorney appeared for that hearing.
At the conclusion of that motion hearing, the judge stated the following findings and reasons for his determination that Maryland is the more appropriate forum.
[T]he children have been residing in Maryland with the mother and that was part of the divorce decree. She was allowed to go to Maryland with the kids. . . . The connections here are with the [S]tate of Maryland.
. . . [(colloquy between the clerk and judge discussing the status of a domestic violence complaint without reference to date or docket number omitted).]
. . . So anyway, as far as the application with regard to a plenary hearing for custody and visitation, I'm denying the application of plaintiff. Declining to exercise jurisdiction of the custody and parenting time issues. I will sign the
order that [defendant's attorney] submitted to me.
All proceedings as to custody and parenting time shall be decided by Circuit Court of Montgomery County, Maryland. You should serve a copy of this order, counsel, on the plaintiff's counsel as well as the Circuit Court of Maryland, because I think that may have deferred pending my decision in this matter.
[Defendant's counsel]. That is correct.
Plaintiff promptly sought reconsideration of the June 22, 2012 order. His motion for reconsideration was filed on July 2.
In addition to submitting a certification offering reasons for his failure to appear, the attorney submitted a certification from plaintiff. In his certification, which is included in the record on appeal, plaintiff acknowledged that defendant filed a proceeding in Maryland to "enroll a foreign divorce decree" and noted that defendant did not mention the pending custody matter in New Jersey in the papers she submitted to the Maryland Court.
The docket entries from Maryland indicate that on June 12, 2012, plaintiff advised the Maryland court that a hearing in New Jersey was scheduled for June 22.
On August 1, 2012, plaintiff's attorney filed a supplemental brief. Plaintiff's brief on A-0679-12, asserts that plaintiff's former attorney "informed [the judge in New Jersey] that the Maryland court had dismissed the matter without prejudice, declining to exercise jurisdiction because the matter belonged in New Jersey."
Appellate counsel cited a page of his appendix to support his assertion about the supplemental brief filed on the motion for reconsideration. But appellate counsel failed to include that brief in the appendix; in fact the appendix ends with Pa176.
Defendant, however, acknowledges that the supplemental brief was filed. In the index to her appendix on A488912, she includes what she describes as the "[f]irst page of the supplemental letter brief of [plaintiff's prior attorney] dated August 1, 2012 (redacted)." The "first page" defendant provides is so heavily redacted that only one sentence, favorable to her position on child support, is legible. In the legible sentence, plaintiff's attorney withdraws his client's request to modify child support.
Defendant opposed reconsideration. She and her attorney submitted certifications and a copy of a scheduling order issued in Maryland on June 15, 2012, in contradiction of the representation made by plaintiff's attorney in the supplemental brief.
Despite the factual dispute about the status of the custody proceedings in Maryland that cast doubt on the judge's understanding when he entered the June 22 order, the judge denied reconsideration without oral argument. The judge set forth these findings and reasons pertinent to the jurisdictional determination at the foot of the order:
Plaintiff has not met the standards for reconsideration pursuant to Rule 4:49-2 and
Cummings v. Bahr, 295 N.J. Super. 364 (App. Div. 1996). . . . The court's reasons for its decisions are stated on the transcript of 6/22/12. . . . Those reasons are still valid today based on forum non-conveniens, UCCJEA and R. 4:50-1.
The judge did not mention the new information about the Maryland court's dismissal of defendant's litigation. And the order he entered on August 24, 2012, consists of a crossed-out paragraph of the proposed order submitted by plaintiff's attorney, which would have vacated the provisions of the June 22 order addressing jurisdiction.
The judge also struck through a paragraph of the proposed order seeking a plenary hearing on child support.
Plaintiff filed a timely notice of appeal on October 4, 2012. Despite the pending appeal from the order of August 24, 2012, plaintiff continued to file post-judgment motions in the trial court. The order that is the subject of A-4889-12, the second appeal in this consolidated action, was entered on June 7, 2013, and modified by the judge on June 11, 2013. Although plaintiff did not include the moving papers in his appendix, the order reflects that he sought nothing other than release, subject to a protective order, of a home inspection report, psychological report and risk assessment.
The judge denied that relief. Apparently viewing those requests as a motion for reconsideration of a March 22, 2013 order, the judge denied it pursuant to Rule 4:49-2. That determination is confusing, because the March 22, 2013 order denied all relief requested "without prejudice."
The order includes additional writing, apparently reasons, that is wholly illegible.
Pertinent to custody and parenting time, that March 22, 2013 order states: "(6) no prima facie case made for change of custody in moving papers; (7) no copy of JOD/PSA which sets forth current custody arrangements."
In any event, on June 11, 2013, the judge entered an order amending the June 7 order and clarifying his reasons for denying the relief sought. The judge explained,
under N.J.S.A. 2A:34-66(a)(1), which codified the UCCJEA, New Jersey does not have continuing exclusive jurisdiction over custody matters related to the children of these parties, because one party and the children no longer have a significant connection to this state. Additionally, the children and the parent of primary residence have resided in the state of Maryland for over six months, making Maryland the home state of children[.]
This order states a reason for declining jurisdiction over custody matters different than the inconvenience of the forum, upon which the judge previously relied. Nothing in the record we have indicates that either party requested a determination about New Jersey's continuing and exclusive jurisdiction.
Plaintiff promptly appealed. As previously noted, a panel of this court entertained plaintiff's emergent application following entry of the June 2013 orders. On June 17, plaintiff submitted an application for leave to file a motion for emergent relief, which we granted. Plaintiff was given time to file a motion and a notice of appeal from the June 2013 orders, and defendant was given until June 21 to respond, which she did not do.
In support of his motion, plaintiff provided docket entries certified as true by the Clerk of the Circuit Court for Montgomery County, Maryland as of January 18, 2013. The entries are for a case captioned "Baptiste, Rupert v. Baptiste, Fatou Jallow," No. 103170-FL. They reflect that on May 16, 2012, after plaintiff filed his motion to enforce his visitation rights in the trial court, the Maryland court opened a case in response to a request from defendant to enroll a "FOREIGN JUDGMENT" and "CERTIFIED COPY OF PROPOSED FINAL JUDGMENT OF DIVORCE FROM SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION: ESSEX COUNTY."
The certified docket entries are included in the appendix to plaintiff's brief in A-4889-12. Plaintiff previously provided the certified docket entries to this court with an application for emergent relief he filed on June 17, 2013, which is discussed later in this opinion.
The 2007 judgment discussed above is entitled "PROPOSED JUDGMENT OF DIVORCE."
On June 15, 2012, a week before the motion hearing in New Jersey on June 22, the Family Division Master of the Maryland court issued a scheduling order signed by a County Administrative Judge, that set a discovery end date of August 2, 2012 and a three-hour hearing for August 16. But that scheduling order was mooted by another entered later in the day on June 15. A subsequent docket entry for June 15, 2012, reflects that a judge of that court denied defendant's motion for transfer of jurisdiction to Maryland, determined that jurisdiction is in New Jersey, and dismissed her application for supervised visitation without prejudice.
The only docket entry as of January 8, 2013, subsequent to those related to the June 15, 2012 dismissal of the case, is an entry that reflects the return of mail the Maryland court had sent to plaintiff. The entry describes the mailing as including "notice of registration of a foreign support order, praecipe and proposed judgment of divorce."
On June 21, 2013, a two-judge panel of this court considered the emergent motion and entered an order. In pertinent part that order provides:
4) And it further appearing: a) that the initial custody decree was entered in New Jersey; b) that a Maryland court, on June 15, 2012, denied defendant's request to assume jurisdiction of the custody dispute; c) and that the trial court here has
determined to decline jurisdiction without providing plaintiff an adequate opportunity to present argument and without providing a statement of findings and reasons exploring what appears to be an erroneous application of N.J.S.A. 2A:34-54 to 95. See Griffith v. Tressel, 394 N.J. Super. 128 (App. Div. 2007);
5) The trial court is hereby directed to provide a written statement of findings and reasons explaining the orders entered on March 22, 2013 and June 7, 2013 to the extent those orders address the court's jurisdiction to enforce and modify prior orders concerning custody;
6) The court shall file its written statement of findings and reasons with the clerk of this court no later than twenty-one days from the date of this order;
7) This appeal is hereby consolidated with A-0679-12;
8) Upon receipt of the trial court's statement of reasons, the clerk of this court shall issue a schedule for expedited disposition;
9) Nothing in this order shall be construed to preclude the trial court from consulting with the judge in Maryland as contemplated by N.J.S.A. 2A:34-62.
[(Emphasis added).]
The judge did not file his written statement of reasons as directed. He responded by letter dated August 16, 2013, addressed only to the member of the panel that signed the order. Apparently referring to the court's order, the judge advised that he was "in receipt of correspondence from the Appellate Division." The judge went on to state that his reasons were stated on the record on June 22, 2012 and on the second page of his August 24, 2012 order. Again characterizing the June 7, 2013 order as one entered on a motion for reconsideration, the judge indicated that he had denied it as untimely.
Without indicating the date or subject of the conversation, the judge wrote: "The Court discussed this matter with the Maryland Court which advised this Court they accepted jurisdiction. Defendant has provided proof that the Maryland Court has accepted jurisdiction [on the] matte[r], which proof has been provided to the Appellate Division on August 7, 2013."
Apart from the judge's letter, the only "correspondence" received by this court in August 2013 from defendant was her pro se brief in A-0679-12, which was filed on August 9, 2013. The appendix to that brief includes a letter of August 7. The only "proof" of occurrences in the Circuit Court for Montgomery County, Maryland included in defendant's submission were: a letter from the clerk of that court indicating that a case "was received" by the court on May 24, 2013 and "assigned case number 111719-FL"; and a "Notice of Registration of Foreign Custody Determination" that states:
Apparently, the judge received his copy of the brief before this court received and filed the brief.
1. the registered child custody determination is enforceable as of the date of the registration in the same manner as a determination issued by a court of this State;
2. any request for a hearing to contest the validity of the registered determination shall be made within 20 days after the service of this notice; and
3. failure to contest the registration will result in confirmation of the child custody determination and preclude further contest of that determination with respect to any matter that could have been asserted.
If a timely request for a hearing to contest the validity of the registration is not made, the registration is confirmed by operation of law.
__________
Loretta E. Knight, Clerk
Circuit Court for Montgomery County,
Maryland
Date: 05/31/13
In her August 7 letter, defendant advised that the judge who signed the panel's June 21, 2013 order was "under the mistaken impression that the Montgomery County, Maryland Circuit Court declined jurisdiction of this case and that is false." (Emphasis in original). Defendant did not provide a certification or documentation indicating the inaccuracy of the certified docket entries reflecting the Maryland court's dismissal that plaintiff submitted to this court and we referenced in our June 21, 2013 order.
If the judge contacted the Maryland court — as paragraph 9 of the panel's order authorized the judge to do — to determine whether the panel was mistaken, he did not share any information he acquired in his letter of August 16. In any event, the information defendant provided in August 2013 is wholly uninformative on the question of the Maryland's court's jurisdictional determination.
On June 21 and July 26, 2013, the judge entered orders purporting to correct the record but, in reality, authorizing defendant to supplement the record on appeal. Defendant includes those orders in her appendix. The first of the judge's orders is dated June 21, 2013, the date this court entered its order. It provides:
This matter having been brought before that Court upon the motion of Defendant pursuant to R. 2:5-5(a), and this Court having read and considered the pleading filed herein and having considered the arguments of attorneys and litigant, and for good cause shown:
1. The record of this matter shall be settled as follows: the record shall be supplemented to include the following two documents: the Notice of Registration of Foreign Custody Determination by the Circuit Court for Montgomery County, Maryland and the assignment of case number 111719-FL by said Court.
2. Defendant may add these items to Defendant-Respondent's Appendix.
Given the importance of the status of litigation in Maryland, we have reviewed docket entries the Maryland court posts on its website. As of March 26, 2014, the case opened on May 16, 2012, case number 103170-FL, is closed. The last entry is for January 8, 2013, and it records the mailing of records certified by the Clerk, provided to us by plaintiff on his emergent application and in his appendix on A-4889-12.
The Maryland court's records also reflect that plaintiff opened a second case, case number 111719-FL. As of March 26, 2014, the status of that case was "closed." There are no entries on the docket indicating any judge has considered or entered an order in that case. The only activity reflected is as follows: the filing of a request to record a foreign judgment and case information statement on May 24, 2013; the court's mailing of a notice of registration of the judgment to plaintiff and assignment of a case number on May 31, 2013; a return receipt indicating plaintiff received the mail on June 11, 2013; the court's mailing and receipt of return on notice of registration of a custody determination on November 20, 2013; the court's receipt of a letter with attachments from plaintiff on November 27, 2013; and the court's receipt of certified copies filed by defendant on March 17, 2014.
Thus, according to the records posted by the Maryland court, since obtaining an order from a judge of this State allowing her to proceed in Maryland, defendant has not filed any pleading or motion pertinent to custody or parenting time. It further appears that the Maryland court dismissed the only application she filed on June 15, 2012, as the certified records of that court filed by plaintiff in June 2013 indicate.
B. Our reasons for reversing and vacating the jurisdictional determinations.
We reverse the denial of the motion for reconsideration of the judge's order declining jurisdiction, because that determination was not made in conformity with the procedures or standards of the Act or with our law recognizing the importance of visitation to the best interests of children whose parents do not reside together.
"The [Act] should be interpreted so as to avoid jurisdictional competition and conflict and require cooperation with courts of other states as necessary to ensure that custody determinations are made in the state that can best decide the case." Griffith v. Tressel, 394 N.J. Super. 128, 138 (App. Div. 2007). One of the Legislature's goals in adopting the Act, which is modeled on the "Uniform Child Custody Jurisdiction and Enforcement Act" (UCCJEA), was to address the fact that lack of uniformity "may turn enforcement of a child custody or visitation order into a long and drawn out process." Senate Judiciary Committee Statement to S. 150 (reprinted following N.J.S.A. 2A:34-53). Those goals were not met here.
Since the initial judgment of divorce in this case was entered on March 23, 2007, the parties have been unable to agree on plaintiff's visitation and no court has determined that a denial of his visitation is consistent with the best interests of the children. Nevertheless, plaintiff has effectively been denied access to his children since 2007 on no basis other than confusion about a risk assessment.
All of that has occurred despite the fact that the controlling order, the one embodied in the 2007 judgment, does not condition plaintiff's alternate weekend visitation on the risk assessment. The parties agreed to abide by the risk assessment only with respect to the circumstances of that visitation — whether it would be supervised or unsupervised. But see P.T. v. M.S., 325 N.J. Super. 193, 214-16 (App. Div. 1999) (disapproving delegation of responsibility for decisions about custody and parenting time to experts).
Given the history of plaintiff's efforts to have a relationship with the twins, the judge had reason to be concerned about the children's welfare. By all accounts, the twins have had no contact with their father since 2007, and they could have been as young as seven years old in 2012.
Our courts have recognized that a child's loss of regular contact with a parent during the formative years is a matter of importance to a child's welfare. Fusco v. Fusco, 186 N.J. Super. 321, 327 (App. Div. 1982).
Moreover, the Legislature has declared that it is the public policy of this State "to assure minor children of frequent and continuing contact with both parents after [dissolution of a marriage] and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy." N.J.S.A. 9:2-4. Consequently, our courts have held that "the law favors visitation and protects against the thwarting of effective visitation rights," and they have held that a termination of visitation rights requires a showing of either parental unfitness or "emotional or physical harm to the child" that the parent-child relationship is causing. Wilke v. Culp, 196 N.J. Super. 487, 496 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985).
As a practical matter, the orders before us prolonged what by 2012 had become a de facto five-year suspension of plaintiff's visitation rights not required by any order. Under the circumstances — essentially a repetitive debate about whether plaintiff had or had not undergone a risk assessment and had or had not followed its recommendation — a relinquishment of jurisdiction based on Maryland being a more convenient forum was clear error.
The question is governed by N.J.S.A. 2A:34-71, and in pertinent part it provides:
a. 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. . . .
b. Before determining whether it is an inconvenient forum, a court of this State shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit
information and shall consider all relevant factors, including:
(1) whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(2) the length of time the child has resided outside this State;
(3) the distance between the court in this State and the court in the state that would assume jurisdiction;
(4) the relative financial circumstances of the parties;
(5) any agreement of the parties as to which state should assume jurisdiction;
(6) the nature and location of the evidence required to resolve the pending litigation, including the testimony of the child;
(7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(8) the familiarity of the court of each state with the facts and issues of the pending litigation.
c. If a court of this State determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.
. . . .
Preliminarily, the judge did not make any factual findings on the foregoing factors, other than to note that the children and their mother had lived in Maryland since 2007 and had no contact with this State. The judge did not address the other factors at all. The two factors most pertinent in this case are factors 6 and 7.
Factor 6 focuses on the "evidence required to resolve the pending litigation." The dispute before the court was narrow — whether plaintiff could enforce his right to visitation. As plaintiff had, by all accounts, not seen the children since 2007 when they left New Jersey with defendant, the evidence most critical to resolving that issue was most likely in New Jersey.
Assuming the Family Part in Essex has preserved the documents, as required by N.J.S.A. 2A:34-64d, the answer to the questions surrounding the risk assessment is in New Jersey. Without suggesting that the children's condition is unimportant after the long separation from plaintiff, it was an abuse of discretion to relinquish jurisdiction to Maryland before resolution of the dispute about plaintiff's risk assessment that had been used as the reason for preventing him from exercising his visitation rights.
Factor 7 addresses "the ability of the court of each state to decide the issue expeditiously." As previously noted, our Legislature adopted the Act, in part, to avoid delayed decisions. If the judge discerned any basis for concluding that a judge of the court in Maryland would be in a better position than him to expeditiously sort out the history of this case and the question of plaintiff's compliance with the recommendations of the risk assessment done by probation, he did not state it. As a matter of common sense and logic, that cannot be the case. Plaintiff, his actions and the pertinent court records were all in New Jersey.
In our view, the provision of the judge's June 22, 2012 order directing that "all proceedings as to custody and parenting time" be held in the Maryland court was in derogation of other provisions of the Act as well. The Act requires cooperation between courts, and it requires a court of this State to preserve a host of documents pertinent to custody determinations, including evaluations. See N.J.S.A. 2A:34-64d.
An order sending the parties elsewhere without resolving the multitude of questions about the risk assessment is inconsistent with cooperation. It is apparent that if the Maryland court were to exercise jurisdiction, it would need to conduct an evidentiary hearing on that point itself or ask a court of this State to do so. N.J.S.A. 2A:34-64a(1), b.
The judge further abused his discretion by declining to reconsider his decision about the forum in the face of conflicting information about Maryland's dismissal of the case without resolving that factual dispute. Subsection c of N.J.S.A. 2A:34-71, quoted above, requires a judge to stay proceedings here until "a child custody proceeding [may] be promptly commenced in another designated state." Upon being informed that the Maryland court had dismissed the case, the judge should not have chosen between the parties' competing reports on the status of the case in Maryland without making further inquiry of that court.
We recognize and accept the judge's representation that he consulted with the Maryland court. But he has not advised us, or to our knowledge the parties, when he consulted with the Maryland court or what he learned. The Act requires more.
The Act provides procedures for such communication that were not followed here. N.J.S.A. 2A:34-62 states:
a. A court of this State may communicate with a court in another state concerning a proceeding arising under this act.
b. The court may allow the parties to participate in the communication. If the parties are not able to participate in the communication, the parties shall be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.
c. Communication between courts on schedules, calendars, court records and similar matters may occur without informing the parties. A record need not be made of that communication.
d. Except as provided in subsection c. of this section, a record shall be made of a communication under this section. The parties shall be informed promptly of the communication and granted access to the record.
e. For the purposes of this section, "record" means information that is inscribed on a tangible medium or that which is stored in an electronic or other medium and is retrievable in perceivable form.
To the extent that the judge concluded that no record was required, he erred. Communication about exercise of jurisdiction does not fall within the exception provided in subsection c. Exercise of jurisdiction is a fact sensitive and substantive matter that bears no similarity to a communication about "schedules, calendars, [and] court records."
For all of the foregoing reasons, we reverse and vacate the provisions of the June 22, 2012 order declining jurisdiction in favor of Maryland.
We also vacate the order of June 11, 2013, purporting to hold that New Jersey no longer has continuing and exclusive jurisdiction. First, the absence of continuing and exclusive jurisdiction does not bar a court from enforcing, as opposed to modifying, an order addressing parenting time. See N.J.S.A. 2A:34-77. Second, the determination is not supported by any findings of fact or pertinent legal conclusions. See Griffith, supra, 394 N.J. Super. at 139-45 (discussing the pertinent statutes and their application).
As noted at the outset, nothing in this opinion should be understood to bar the judge from conducting ongoing proceedings in the Union vicinage to address the issue anew and in conformity with the Act.
II
Plaintiff's objections to the second paragraph of the August 24, 2012 order have insufficient merit to warrant more than the brief discussion that follows. R. 2:11-3(e)(1)(E). The judge properly denied plaintiff's motion to reconsider the provisions of the June 22, 2012 order denying a plenary hearing on his requests to modify child support and vacate the judgment due to defendant's misrepresentations of her marital status when they wed.
With respect to child support, plaintiff's attorney filed a supplemental brief on the motion for reconsideration. In that brief, he withdrew the request for a modification of child support.
With respect to the allegation of defendant's fraud at the time of the marriage, the complaint plaintiff filed in this action sought an annulment on that ground or, in the alternative, a divorce. A pertinent decretal paragraph of the 2007 judgment states: "IT IS FURTHER ORDERED AND ADJUDGED that all issues pleaded and not resolved by the judgment are deemed abandoned." While plaintiff was seeking to vacate the judgment, not an annulment, the fraud that warrants relief from a judgment pursuant to Rule 4:50-1(c) is fraud not previously discoverable by reasonable diligence. Pavlicka v. Pavlicka, 84 N.J. Super. 357, 365 (App. Div. 1964). Having alleged the same misrepresentation as grounds for an annulment and having acquired the information submitted on this motion himself, plaintiff was in no position to prevail under that standard.
We summarize our conclusions. The provisions of the June 22, 2012 orders declining jurisdiction and directing that all proceedings as to custody and parenting time be decided by the Circuit Court for Montgomery County, Maryland are reversed and vacated without prejudice to a different determination in the pending proceeding. The June 11, 2013 order stating that "New Jersey does not have exclusive and continuing jurisdiction over custody matters relating to the children of these parties" is reversed and vacated. The orders of June 22 and August 24, 2012 are otherwise affirmed.
Affirmed in part and reversed in part.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
The second includes the same provisions and an additional third paragraph that states: "This order revokes the order entered on June 21, 2013 which was erroneously entered by the court on that date."
While not necessary to our decision, it is worth noting that Rule 2:5-5(a) allows a trial court to "settle the record" where a party "questions whether the record fully and truly discloses what occurred in the court or agency below." It is an avenue through which a record may be corrected. In contrast, Paragraph (b) of Rule 2:5-5 governs supplementation of an administrative record, and it applies "where evidence unadduced in the proceedings below may be material to the issue on appeal." See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 452 (2007) (noting the court's "inherent power to address" a motion to supplement the record occurring of a trial court). Unlike motions to correct the record, a motion to supplement must be filed with "the appellate court."