Opinion
DOCKET NO. A-6040-12T2
03-31-2015
CAROLINA ISALZA LESCANO, Plaintiff-Appellant, v. GUIDO A. GIL URENA, Defendant-Respondent.
James P. Yudes argued the cause for appellant (Mr. Yudes of counsel; Daniel A. Burton, on the brief). Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hayden and Sumners. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FD-16-1645-12. James P. Yudes argued the cause for appellant (Mr. Yudes of counsel; Daniel A. Burton, on the brief). Respondent has not filed a brief. PER CURIAM
This appeal involves an issue of personal jurisdiction. Plaintiff Carolina Isalza Lescano appeals from a June 28, 2013 Family Part order declining to enforce judgments for provisional support measures and for divorce from the Superior Court of Canada, Province of Quebec, District of Montreal (Canadian orders) against defendant Guido A. Gil Urena. The Family Part judge determined that defendant did not have the minimum contacts with Canada necessary for it to exercise personal jurisdiction without offending basic due process principles. Having reviewed the contentions raised on appeal in light of the applicable legal principles, we affirm.
Plaintiff, born in Montreal, Canada, and defendant, born in the Dominican Republic, met in Canada in December 2004 while defendant was visiting his family. Defendant was a permanent resident of the United States, living in New Jersey. From January 2005 through August 2006, defendant made frequent weekend trips to Canada to visit plaintiff. During that time, the parties engaged in sexual intercourse. Plaintiff also traveled some weekends to New Jersey to visit defendant; occasionally her visits lasted several months.
In March 2006, plaintiff learned that she was pregnant and thought that the child was likely conceived in Canada. The parties' daughter was born in January 2007 in Canada and has dual Canadian and United States citizenship. Plaintiff and her child moved to New Jersey in April 2007 to reside with defendant. The parties married on June 9, 2007 in New Jersey and two years later jointly purchased a home in the State.
On October 4, 2009, the parties were involved in a domestic violence incident that resulted in defendant's arrest. Plaintiff received a temporary restraining order, but the court later dismissed the complaint for lack of prosecution.
On October 10, 2009, at plaintiff's request, defendant signed a letter stating that the parties' daughter had his authorization to travel with plaintiff. The letter "authorized [his] daughter to leave the United States of America as long as [his] wife wishe[d]," and stated that they would be residing in Canada. The letter concluded with the statement: "AS WELL I GIVE MY WIFE PERMISSION TO TAKE MY DAUGHTER ANYWHERE AS SHE WISHES." Plaintiff averred that the letter was signed with the understanding that she was permanently moving to Canada. She claimed she also made clear her intention to seek a divorce there, which defendant also wanted.
In contrast, defendant claimed he thought that plaintiff was merely taking their daughter to visit plaintiff's parents, not relocating permanently to Canada. He stated that he did not intend his signature on the letter to permit such action. Defendant testified that he could not read the letter, which was written in English, and only signed it based on plaintiff's representations. Around this time, defendant agreed to pay her $250 per week in child support, but he made only five or six payments.
After plaintiff relocated to Quebec, defendant stated that he attempted to visit plaintiff and their daughter in Canada three times, but was unable to enter the country. Plaintiff returned to New Jersey twice after relocating to Canada: once in November 2009 to lift the domestic violence charges and again in February 2010 for defendant to see their daughter for her birthday.
Nothing in the record explains why defendant was denied entry into Canada. The judge found this testimony credible.
In March 2010, plaintiff filed an application in the Canadian court in the province of Quebec for "separation from bed and board" and provisionary support measures. With the permission of the Canadian court, plaintiff served defendant via FedEx on April 5, 2010. Defendant acknowledged that in April 2010, he began receiving paperwork entirely in French, which he could not read, but which he gave to his attorney. According to plaintiff, defendant called her when he first received the paperwork, and she explained everything.
On April 19, 2010, a hearing took place in Montreal, Quebec, at which defendant did not appear. The Canadian court entered a provisionary judgment on the same day, which gave custody of the parties' daughter to plaintiff, ordered defendant to pay child support and spousal support, and ordered defendant to pay $3500 to plaintiff's attorney.
On November 11, 2011, plaintiff filed for an absolute divorce in Canada based on a "breakdown of the marriage." Defendant was personally served with the complaint in French and a copy was faxed to defendant's then-counsel. The Canadian court entered a final judgment of divorce on February 2, 2012. The judgment granted exclusive custody of the parties' daughter to plaintiff; reserved defendant's right to seek visitation; and continued the provisional child and spousal support orders.
In 2012, after defendant failed to make support payments, plaintiff, through a Canadian support enforcement agency, initiated reciprocal proceedings in New Jersey to register and enforce the foreign judgments. The New Jersey Interstate Central Registry received the order for registration on March 1, 2012, and the court noticed defendant. Defendant filed a letter contesting registration of the Canadian orders. Having retained New Jersey counsel, plaintiff filed a cross-complaint for enforcement of the orders.
After a January 15, 2013 hearing, Judge Sohail Mohammed entered an order directing defendant to pay $14,000 to probation towards his outstanding support obligation within ten days and setting a briefing schedule. At the subsequent two-day plenary hearing, plaintiff and defendant each testified on their own behalf.
On June 28, 2013, Judge Mohammed issued an order (1) vacating the registration of the Canadian orders and dismissing plaintiff's request to enforce them; (2) releasing defendant's monies being held by probation; and (3) denying counsel fees. In his statement of reasons, the judge concluded that service of process of the provisional measures motion was insufficient, and that the Canadian court lacked subject matter jurisdiction for the provisional measures and lacked personal jurisdiction for the provisional measures motion and the judgment of divorce. Specifically, the trial judge concluded that the Canadian court's exercise of jurisdiction over defendant violated due process as it offended "traditional notions of fair play and substantial justice," because defendant lacked sufficient minimum contacts with the foreign state.
The trial judge reasoned that neither defendant's acquiescence permitting plaintiff and their daughter to travel to Canada nor the parties' sexual intercourse in Canada, which may have led to the daughter's conception, were sufficient for purposes of determining minimum contacts. The trial judge also determined that requiring defendant to litigate in Canada would impose a substantial burden, particularly since he had been denied entry to Canada on three occasions.
On appeal, plaintiff argues that the trial judge erred in not registering or enforcing the Canadian orders as the Canadian courts properly exercised personal jurisdiction over defendant under N.J.S.A. 2A:4-30.68(e), (f), and (g). Quebec is the home state of plaintiff and the parties' child, and the Canadian courts maintain continuing, exclusive jurisdiction over the child and spousal support orders.
N.J.S.A. 2A:4-30.68(e) provides long-arm jurisdiction based on "acts or directives" of the defendant that has caused the child to reside in the initiating State. N.J.S.A. 2A:4-30.68(f) provides jurisdiction based on the fact that the defendant engaged in sexual intercourse in the initiating State which may have led to the conception of the child. N.J.S.A. 2A:4-30.68(g) provides jurisdiction on any other ground "consistent with the constitutions of this State and the United States[.]"
Plaintiff does not brief any issues concerning the trial judge's order with respect to the denial of counsel fees. "[A]n issue not briefed . . . is deemed waived." Liebling v. Garden State Indem., 337 N.J. Super. 447, 465-66 (App. Div.), certif. denied, 169 N.J. 606 (2001).
We first consider the applicable legal principles that guide our analysis. Our scope of review of the fact-findings of a trial judge is limited. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011) (citing Cesare v. Cesare, 154 N.J. 394, 411 (1998)). "We ordinarily defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). Indeed, "an appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra,, 154 N.J. at 412 (alteration in original) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Legal issues, however, are reviewed de novo. D.W. v. R.W., 212 N.J. 232, 245-46 (2012).
Furthermore, we exercise de novo review of the trial court's legal decision on personal jurisdiction. YA Global Investments, L.P. v. Cliff, 419 N.J. Super. 1, 8 (App. Div. 2011). On the other hand, we will not disturb the trial court's finding of jurisdictional facts so long as they are supported by sufficient credible evidence in the record. Jacobs v. Walt Disney World Co., 309 N.J. Super. 443, 452 (App. Div. 1998). These principles of personal jurisdiction apply to matrimonial litigation in which a plaintiff seeks to impose affirmative duties on a defendant, including child spousal support. Katz v. Katz, 310 N.J. Super. 25, 31 (App. Div. 1998). Applying the minimum contact principles to matrimonial litigation is a fact-sensitive endeavor. Kulko v. Superior Court of Cal., 436 U.S. 84, 92, 98 S. Ct. 1690, 1697, 56 L. Ed. 2d 132, 141 (1978).
"New Jersey adopted the 1996 version of [the Uniform Interstate Family Support Act (UIFSA)], codified at N.J.S.A. 2A:4-30.65 to -30.123." Campbell v. Campbell, 391 N.J. Super. 157, 160 (App. Div. 2007). "UIFSA contemplates interstate cooperation to effect an expeditious collection of child support across state borders." Ibid. "UIFSA governs a number of proceedings: the establishment of a spousal or child support order; the enforcement of a support order; the registration and modification of a spousal or child support order; the determination of parentage; and the assertion of jurisdiction over non-residents." Gary N. Skoloff & Laurence J. Cutler, N.J. Family Law Practice § 12.3B(1) (2010); see also N.J.S.A. 2A:4-30.68, -30.77, -30.81.
N.J.S.A. 2A:4-30.65 includes foreign jurisdictions so long as that jurisdiction has "enacted a law or established procedures for issuance and enforcement of support orders which are substantially similar to the procedures under this act or the procedures under the 'Uniform Reciprocal Enforcement of Support Act,' or the 'Revised Uniform Reciprocal Enforcement of Support Act.'" New Jersey has a reciprocity agreement with Quebec under the UIFSA. See John L. Saxon, Int'l Establishment & Enforcement of Family Support, 10 Family Law Bulletin 2 (1999), http://sogpubs.unc.edu/electronicversions/pdfs/flb10.pdf; see also Individual U.S. State Child Support Arrangements, Passports USA, http://www.passportsusa.com/family/services/support/support_2600.html (last visited Mar. 19, 2015).
Under UIFSA, the "initiating" tribunal can secure personal jurisdiction over a nonresident through "long-arm jurisdiction" when an out-of-state defendant has sufficient minimum contacts with the former state such that it is reasonable to anticipate being haled into that state's courts. C.L. v. W.S., 406 N.J. Super. 484, 491 (App. Div. 2009). There are seven provisions to establish personal jurisdiction in New Jersey. N.J.S.A. 2A:4-30.68. Importantly, even if one or more of the long-arm jurisdictional provisions is satisfied, the court must still consider whether "the exercise of that jurisdiction violates the Due Process Clause." C.L., supra, 406 N.J. Super. at 491.
Initiating means the "state from which a proceeding is forwarded[.]" N.J.S.A. 2A:4-30.65.
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This jurisdictional analysis requires a "'defendant's contacts with the forum State [to] be such that maintenance of the suit does not offend traditional notions of fair play and substantial justice.'" Ibid. (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S. Ct. 559, 564, 62 L. Ed. 2d 490, 498 (1980) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95, 102 (1945))). The requisite "'minimum contacts' with the forum State required to exercise jurisdiction over a non-resident will be found if a defendant 'purposefully avails [himself] of the privilege of conducting activities within the forum State' and [the defendant's] contacts with the State are of a nature that '[the defendant] should reasonably anticipate being haled into court there.'" Ibid. (alteration in original) (quoting Woodson, supra, 444 U.S. at 297, 100 S. Ct. at 567, 62 L. Ed. 2d at 501); see also Sharp v. Sharp, 336 N.J. Super. 492, 501 (App. Div. 2001).
In deciding whether a non-resident's minimum contacts were sufficient, the court must distinguish between specific jurisdiction, where the cause of action arose directly from the person's contact with the forum, and general jurisdiction, where the cause is unrelated to said contacts. C.L., supra, 406 N.J. Super. at 492. Furthermore, "the 'minimum contacts' test 'is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite affiliating circumstances are present.'" Sharp, supra, 336 N.J. Super. at 500 (quoting Kulko, supra, 436 U.S. at 92, 98 S. Ct. at 1697, 56 L. Ed. 2d at 141) (internal quotations omitted).
New Jersey may register for enforcement purposes a support order issued by an initiating tribunal as a foreign judgment. N.J.S.A. 2A:4-30.104, -30.105. To contest the validity or enforcement of a registered order the non-registering party must request a hearing within twenty days after notice of the registration. N.J.S.A. 2A:4-30.109(a). The non-registering party may seek to vacate the registration, assert defenses to the registered order, or contest the remedies or amounts. Ibid. The defenses to the validity or enforcement of a registered order, include that "the issuing tribunal lacked personal jurisdiction over the contesting party[.]" N.J.S.A. 2A:4-30.110(a)(1). Once an order from an initiating tribunal is registered, New Jersey will recognize that state's continuing and exclusive jurisdiction. N.J.S.A. 2A:4-30.72(d), -30.73(c). See Campbell, supra, 391 N.J. Super. at 162-64.
Applying these principles, we conclude, as did Judge Mohammed, that the Canadian court lacked personal jurisdiction over defendant. First, we recognize that plaintiff established one basis for personal jurisdiction under UIFSA, specifically that the parties had sexual intercourse that might have led to the conception of the child. N.J.S.A. 2A:4-30.68(f). Notwithstanding this determination, the trial court properly undertook a minimum contact analysis to determine the due process implications of such a jurisdictional basis and appropriately concluded that defendant did not have sufficient minimum contacts with Canada to establish either specific or general jurisdiction. See C.L., supra, 406 N.J. Super. at 491-92.
No facts showed defendant had general contacts with Canada unrelated to plaintiff to create general jurisdiction as defendant's sole purpose in visiting Canada was to court plaintiff. While the parties engaged in sexual intercourse in Canada and defendant visited Canada between 2005 and 2006, this activity was too insubstantial and remote in time to satisfy the minimum contact test for specific jurisdiction. Defendant neither lived in Canada, nor owned or had any business interests or property there, and had not visited Canada in the four years preceding plaintiff's institution of this action.
Contrary to plaintiff's assertions, the court's decision in C.L. does not support plaintiff's argument here. In that case, the court's finding that New Jersey had personal jurisdiction in a paternity action was not based solely on the fact that the parties engaged in sexual intercourse in the State. Id. at 492-93. While this was certainly a factor considered, the court stressed that "the parties' contacts with New Jersey were not limited to a fleeting act of sexual intercourse." Id. at 494. Specifically, the court reasoned that "the entirety of the parties' relationship occurred in New Jersey[,]" the parties were engaged to be married when the plaintiff became pregnant, and the defendant spent extended periods of time in New Jersey. Id. at 486, 492, 495. Here, the majority of the parties' relationship occurred in New Jersey and defendant's visits to Canada were temporary and limited, rather than for any extended period of time.
Additionally, the trial court correctly concluded that N.J.S.A. 2A:4-30.68(e) did not apply because defendant did not cause the parties' child to reside in Canada. Acquiescing to a child's relocation to another forum does not constitute purposefully availing oneself of the protection and benefit of the laws of that new state. Kulko, supra, 436 U.S. at 94-95, 98 S. Ct. at 1698, 56 L. Ed. 2d at 142-43; Landis v. Kolsky, 81 N.J. 430, 441 (1979); see also Stroman v. Brown, 194 N.J. Super. 307, 312 (App. Div. 1984) (holding that husband "did not purposefully avail himself of conducting activities [in another state] by casually giving his wife permission to drive his [car] there"). Rather, the decision to move to Canada was made unilaterally by plaintiff. While defendant signed the authorization form provided by plaintiff, he did not purposefully obtain any benefit from the travel or relocation of the child to Canada. See Landis, supra, 81 N.J. at 438-39 (where defendant acquiesced to and paid for plaintiff's airfare to California). Moreover, the trial judge found defendant to be more credible when he testified that he was under the impression that the authorization was for a visit rather than a permanent relocation.
Finally, the trial judge's conclusion that Canada lacked personal jurisdiction is bolstered by the fact that defendant was unable to personally appear in Canada to contest or in any way participate in the proceedings because he was turned away at the border without explanation. Defendant's inability to enter Canada to attend any court proceedings offends our most basic concepts of due process. See Harrison Redevelopment Agency v. DeRose, 398 N.J. Super. 361, 403 (App. Div. 2008) ("At its core, due process requires adequate notice and an opportunity to be heard[.]") (emphasis added).
In sum, we conclude there were insufficient minimum contacts to establish personal jurisdiction over defendant and as such, the trial judge did not err in declining to register and enforce the Canadian orders. Because there was no personal jurisdiction over defendant, we need not address the issues raised by plaintiff challenging the judge's order concerning improper service of process and subject matter jurisdiction.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION