Opinion
DOCKET NO. A-1837-11T1
02-25-2013
RACQUEL A. SPIERTO, n/k/a RACQUEL DIODATO, Plaintiff-Respondent, v. THOMAS R. SPIERTO, Defendant-Appellant.
Weinberger Law Group, L.L.C., attorneys for appellant (Erich Schneider, on the brief). Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fasciale and Maven.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1954-11.
Weinberger Law Group, L.L.C., attorneys for appellant (Erich Schneider, on the brief).
Respondent has not filed a brief. PER CURIAM
Defendant, a California resident, appeals from a November 18, 2011 order denying his motion to dismiss the complaint. The primary question is whether the judge erred by finding that there existed minimum contacts with New Jersey sufficient to establish personal jurisdiction over defendant. We remand for further proceedings consistent with this opinion.
The facts of the case, as they relate to the jurisdictional issue on appeal, are undisputed. The parties were married in New Jersey in March 1988, and had three children, Art, in 1993, and James and Brittney, in 1998.
Fictitious names will be used for the children involved in this action.
Defendant served in the military at all times during the marriage and was assigned to work on various bases. In 1994, plaintiff and Art lived in Virginia. Thereafter, and notwithstanding their respective residences during defendant's assignments, the parties separated for dissolution purposes in 1996, when plaintiff refused to relocate with defendant to Rhode Island. In 1998, after the birth of the twins and with defendant's consent, plaintiff and the children moved to New Jersey, where they have since lived. Defendant has never lived in New Jersey and has been a California resident since 2000.
Defendant became a commissioned officer in the United States Navy in 1986 and New York was his official state of domicile. He was stationed in Virginia Beach, VA (1988-1992); Charleston, SC (1992-1993); Jacksonville, FL (1993-1995); and Newport, RI (1996-2000).
In October 1998, defendant served plaintiff with a New York divorce complaint at her New Jersey home. The parties entered into a stipulation in open court in New York on January 3, 2000, which resolved all marital issues. They were divorced on March 8, 2000. The New York Final Judgment of Divorce (FJD) incorporated the parties' marital settlement agreement, which vested custody of the three children with plaintiff and required defendant to pay her child support. The agreement also incorporated a visitation schedule for defendant. The judgment and agreement are silent on the issue of responsibility for the children's future college costs.
The motion judge misstated the date of divorce as January 3, 2000, which was the date of the marital stipulation agreement.
The marital stipulation agreement also resolved all issues pertaining to property distribution, debts, health insurance and spousal support.
The visitation schedule, in relevant part, provided:
A. January 1, 2000 - April 15, 2000
Art: One weekend out of every three (17 weekends per year); Twins: During the weekend the father has visitation with Art he shall be entitled to have the twins visit with him each day from 10 am until 5 pm.
B. April 15, 2000 - July 1, 2001
All children: During Art's Christmas break 12/26/00 to 01/2/01, Spring Break 2001, and at such other times as father is in the vicinity of Wife's home and is able to exercise visits.
C. July 1, 2001 - thereafter
All children: One weekend out of every three (17 weekends per year), one-half of the three day weekends per year, four weeks each summer, Christmas break, spring break, alternate Thanksgiving vacation period, Father's Day and Father's birthday, and at such other times as are agreed by the parties.
On or about June 9, 2011, plaintiff filed a motion in the Superior Court of New Jersey, Family Part, seeking, among other things, full faith and credit of the FJD and an order compelling defendant to contribute to Art's college costs. Defendant received the motion by certified mail at his California residence on or about June 14, 2011. Defendant filed a motion on July 14, 2011, claiming the Family Part lacked jurisdiction over him.
The record presented does not contain a complete copy of the motion.
At the July 25, 2011 motion return date, the judge determined that defendant had not filed a timely response and considered plaintiff's motion unopposed. While the court acknowledged defendant's untimely opposition to jurisdiction, it denied consideration of that issue without prejudice. The court granted full faith and credit to the New York FJD and ordered defendant, among other things, to pay seventy-five percent of college costs, net financial aid and scholarship; reimburse plaintiff for a portion of certain educational expenses that she had incurred for the college-bound child; and provide financial information for the recalculation of child support.
Thereafter, defendant filed a motion to dismiss the complaint and vacate the July 25, 2011 order asserting that the Family Part lacked personal jurisdiction over him. In support thereof, defendant certified that he, his current wife and step-children have resided in California since 2000, where he owns property, works, pays taxes, votes and maintains a driver's license. He further asserted that New Jersey was never his domicile and that he has no contacts with New Jersey aside from his children. Arguing that New Jersey was not the appropriate state to determine the issue of college contributions, defendant claimed that the originating state, New York, should decide the issues of enforcement and modification of the FJD.
On November 18, 2011, the trial court rendered a written opinion finding that New York no longer had continuing, exclusive jurisdiction because neither party resided in that state, and that New Jersey had personal jurisdiction over defendant due to his minimum contacts with the state. This appeal followed.
On appeal, defendant argues that plaintiff failed to establish in personam jurisdiction over him, pursuant to N.J.S.A. 2A:4-30.68(g), and further contends that the Family Part of New Jersey should not modify the New York FJD and child support order.
Defendant does not challenge the court's July 25, 2011 order regarding college contributions or the order to provide financial documentation for the purpose of calculating child support.
We exercise de novo review of the trial court's legal decision regarding personal jurisdiction over a nonresident party. YA Global Invs., L.P. v. Cliff, 419 N.J. Super. 1, 8 (App. Div. 2011). We will not disturb the trial court's findings of jurisdictional facts, even in the absence of a plenary hearing, 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). Here, the judge made insufficient findings to support his determination that minimum contacts existed to establish personal jurisdiction pursuant to N.J.S.A. 2A:4-30.68(g).
This case requires us to examine the convergence of federal and state laws governing the modification or establishment of a child support obligation by a non-issuing state. The proceeding commenced pursuant to the Uniform Interstate Family Support Act (UIFSA), codified in New Jersey as N.J.S.A. 2A:4-30.65 to -30.123, and the earlier-enacted federal Full Faith and Credit for Child Support Orders Act (28 U.S.C.A. § 1738B) (the Act). These legislations facilitate the adjudication and enforcement of child support obligations in cases where the litigants reside in different jurisdictions.
The Act obligates states to enforce child support orders issued by another state, but also imposes limitations on a non-issuing state's authority to modify child support orders. See 28 U.S.C.A. § 1738B(a). Regarding modification, the Act provides, in relevant part, that
(e) a court of a State may modify a child support order entered by a court in another state if:
(1) The court has jurisdiction to make such a child support order pursuant to subsection
(i); and
(2)(A) the court of the other State no longer has continuing, exclusive jurisdiction of the child support order because that State no longer is the child's State or the residence of any individual contestant; or
(B) each individual contestant has filed written consent with the State of continuing, exclusive jurisdiction for a court of another State to modify the order and assume continuing, exclusive jurisdiction over the order.
[28 U.S.C.A. § 1738B.]
Together, UIFSA and the Act establish a national single-order system, which vests continuing, exclusive jurisdiction with the issuing state. The state issuing a child support order retains continuing, exclusive jurisdiction over its order so long as an individual contestant resides in that state. 28 U.S.C.A. § 1738B(d); N.J.S.A. 2A:4-30.72.
Consistent with UIFSA's provisions, another state may modify the issuing state's child support order only when the issuing state loses continuing, exclusive jurisdiction. N.J.S.A. 2A:4-30.72 to -30.73. Under the most commonly encountered circumstances, an issuing state will lose continuing, exclusive jurisdiction where both of the individual contestants (i.e., parents) and the children who are the subject of the support order have moved to different states. Under that scenario, the issuing state's loss of continuing, exclusive jurisdiction is sensible as the state no longer maintains a nexus with the parties or the children and, furthermore, the issuing tribunal has no current information about the circumstances of anyone involved.
Alternatively, a state other than the issuing state may acquire continuing, exclusive jurisdiction where one or both of the individual contestants has relocated to another state, and the parent who is not seeking modification of the support order is subject to the personal jurisdiction of the court where the modification petition is sought to be filed. Specifically, subsection (i) of the Act provides that:
If there is no individual contestant or child residing in the issuing State, the party or support enforcement agency seeking to modify, or to modify and enforce, a child support order issued in another State shall register that order in a State with jurisdiction over the nonmovant for the purpose of modification.
[28 U.S.C.A. § 1738B(i) (emphasis added).]
Here, the trial court concluded that New York, the issuing state, was neither the child's state of residence nor the residence of any individual contestant and, as such, no longer had continuing, exclusive jurisdiction to modify its child support order. We discern no reason to disturb that finding as those facts are not in dispute. The judge further concluded, however, that "personal jurisdiction is met on a minimum contacts basis, and even if minimum contacts were lacking, New Jersey is the only state that the defendant has any contact with regarding the case." It is here that we find the record lacking to support that conclusion.
The absence of residency in an issuing state is not conclusive of, and does not in and of itself establish, jurisdiction in another state. Rather, the absence of residency in the issuing state begins the analysis, triggering the seminal consideration of which state then has jurisdiction over the non-moving party.
We turn now to consider whether there is sufficient credible evidence in the record to support the trial court's finding that New Jersey has jurisdiction over defendant. New Jersey's version of UIFSA contains a specific long-arm provision, which states:
In a proceeding to establish, enforce, or modify a support order or to determine parentage, a tribunal of this State may exercise personal jurisdiction over a nonresident individual or the individual's guardian or conservator if:
(a) the individual is personally served with a summons or notice within this State;
(b) the individual submits to the jurisdiction of this State by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;
(c) the individual resided with the child in this State;
(d) the individual resided in this State and provided prenatal expense or support for the child;
(e) the child resides in this State as a result of the acts or directives of the individual;
(f) the individual engaged in sexual intercourse in this State and the child may have been conceived by that act or intercourse; or
(g) there is any other basis consistent with the constitutions of this State and the
United States for the exercise of personal jurisdiction.
[N.J.S.A. 2A:4-30.68.]
We apply a well-established legal framework for deciding a question of personal jurisdiction. N.J.S.A. 2A:4-30.68(g) pertains to "long-arm jurisdiction." See Int'l Shoe Co. v. Wash., 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95, (1945); see also Kulko, supra, 436 U.S. 84, 98 S. Ct. 1690, 56 L. Ed. 2d 132 (1978) (holding that without such minimal contacts, a state cannot exercise jurisdiction over a nonresident parent, but also indicating that if minimal contacts are present, long-arm jurisdiction can be exercised).
New Jersey courts exercise in personam jurisdiction over nonresident defendants to the full extent permitted by the due process clause of the United States Constitution. Avdel Corp. v. Mecure, 58 N.J. 264, 268 (1971); R. 4:4-4(b)(1). To subject a foreign defendant to personal jurisdiction, due process requires plaintiff to satisfy a two-prong test. First, the defendant must have sufficient minimum contacts with the forum state. Waste Mgmt., Inc. v. Admiral Ins. Co., 138 N.J. 106, 120-21 (1994), cert. denied sub nom. WMX Techs, v. Canadian Gen. Ins. Co., 513 U.S. 1183, 115 S. Ct. 1175, 130 L. Ed. 2d 1128 (1995). Second, the plaintiff must demonstrate that maintaining the suit will not offend "traditional notions of fair play and substantial justice." Id. at 120 (citations omitted).
These personal jurisdiction principles apply to matrimonial litigation in which a plaintiff seeks to impose affirmative duties on a defendant. Katz v. Katz, 310 N.J. Super. 25, 31 (App. Div. 1998). This includes personal obligations to pay child support and alimony. Ibid. The United States Supreme Court has recognized that applying minimum contacts principles to matrimonial litigation is a fact-sensitive endeavor. Kulko, supra, 436 U.S. at 92, 98 S. Ct. at 1696-97, 56 L. Ed. 2d at 141.
The benchmark for determining if the exercise of personal jurisdiction satisfies due process is whether the non-custodial parent purposefully avails himself or herself of the privilege of conducting activities in the forum state, as well as its protections and benefits. Landis v. Kolsky, 81 N.J. 430, 436 (1979); Jaworowski v. Kube, 276 N.J. Super. 474, 478 (App. Div. 1994). The "purposeful availment requirement ensures that a defendant will not be haled into a jurisdiction solely as a result . . . of the unilateral activity of another party or a third person." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S. Ct. 2174, 2183 85 L. Ed. 2d 528, 542 (1985) (citations omitted).
It is axiomatic that to establish long arm jurisdiction, the requisite finding of minimal contacts must be based on an analysis of the nature, duration and extent of contact with the state. In Kulko, the defendant's visitation in California on two occasions, thirteen years prior to the initiation of that court action, was deemed insufficient minimal contact. Kulko, supra, 436 U.S. at 93, 98 S. Ct. at 1697, 56 L. Ed. 2d at 142. The Supreme Court stated: "[T]o hold such temporary visits to a State a basis for the assertion of in personam jurisdiction over unrelated actions arising in the future would make a mockery of the limitations on state jurisdiction imposed by the Fourteenth Amendment." Ibid. This seminal decision has informed courts across the United States in matters pertaining to family-related jurisdiction. While not precedential here, the North Carolina Supreme Court reached its decision, based on the extent of the defendant's contact, and found that a non-resident father's visitation with his child six times in the eight years preceding the initiation of that court action did not constitute sufficient minimal contact to invoke the state's long-arm jurisdiction. Miller v. Kite, 313 N.C. 474, 480 (1985). In Katz, we held that a father's ties to New Jersey seventeen years before the lawsuit and his small current interest in New Jersey property were insufficient to justify personal jurisdiction in a child support action. Supra, 310 N.J. Super. at 32. Lastly, we have also determined that three brief vacations in New Jersey with no other contacts was not sufficient contact to establish jurisdiction. Sharp v. Sharp, 336 N.J. Super. 492 (App. Div 2001).
In Miller, the North Carolina Supreme Court held that neither the child's presence in that state nor the non-custodial parent's periodic exercise of his visitation rights and mailing of child support payments there provided the constitutionally required minimum contacts to justify in personam jurisdiction over the non-custodial parent.
In Sharp, plaintiff moved to New Jersey after the entry of the parties' Judgment of Divorce in California and subsequently filed a post-judgment motion seeking college contributions. We reversed the trial court's finding of jurisdiction and concluded that New Jersey did not have in personam jurisdiction over defendant because all prior child support orders had been issued by the California courts and the defendant continued to reside in California, the issuing state. Ibid at 505.
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Here, the trial court found that defendant had sufficient minimum contacts in New Jersey and held that
defendant . . . conducts activities in New Jersey when exercising his parenting time in New Jersey . . . . Since the time of the divorce in January of 20[00] the defendant has traveled to the state of New Jersey to exercise parenting time with his children, pursuant to the Judgment of Divorce in New York entered into by the parties, New Jersey is where the parties children reside, New Jersey is the state where the parties were married, and New Jersey is where the [p]laintiff has a bank account that theWe conclude that the judge did not make sufficient findings regarding the nature, duration, and extent of defendant's parenting time and other activities in New Jersey. Under the facts of this case, clearly such an analysis is required to determine whether minimum contacts exist to establish personal jurisdiction over defendant. We therefore remand to the judge and direct him to make the requisite findings regarding whether there are sufficient minimum contacts in New Jersey. The judge may reopen the matter in his discretion in that regard. We do not retain jurisdiction.
[d]efendant's child support obligations are transferred to.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION