Opinion
DOCKET NO. A-2096-13T1
01-29-2015
DAVID WEINMAN, Plaintiff-Appellant, v. LAURA WEINMAN, Defendant-Respondent.
Wolkstein, Von Ellen & Brown, L.L.C., attorneys for appellant (Jaime K. Von Ellen and Marisa Lepore Hovanec, on the brief). Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Haas. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-0509-14. Wolkstein, Von Ellen & Brown, L.L.C., attorneys for appellant (Jaime K. Von Ellen and Marisa Lepore Hovanec, on the brief). Respondent has not filed a brief. PER CURIAM
Plaintiff, David Weinman, appeals from a November 22, 2013 order relinquishing jurisdiction to Pennsylvania, where defendant, Laura Weinman, now resides with the parties' two teenagers. Because the court relied on a statute that was no longer in effect at the time of the decision, we reverse and remand for reconsideration.
The parties were married in 1992 and divorced in 2003. Intense litigation concerning custody and time-sharing began during the two years after the complaint was filed, prior to the divorce judgment, and continued after the judgment was entered, when the parties agreed to joint legal custody of their two children. Passaic County judges handled the many motions and became familiar with the issues. During this time, two different parenting coordinators (PC) were appointed to assist. Defendant moved out of Passaic County in 2004. Plaintiff moved to Union County in 2006 with his new wife and her children, but the litigation continued in Passaic County.
In April 2007, the Administrative Office of the Courts issued a notice to the bar pertaining to the PC Pilot Program. Notice to the Bar: Parenting Coordinator Pilot Program - Program Guidelines and Related Material, 188 N.J.L.J. 169 (Apr. 9, 2007), available at http://www.judiciary.state.nj.us/ notices/2007/n070403a.pdf; see also Milne v. Goldenberg, 428 N.J. Super. 184, 205 (App. Div. 2012) ("The Guidelines explain [that] a court may appoint a PC to facilitate the resolution of day to day parenting issues that frequently arise within the context of family life when parents are separated . . . [and] unable to resolve these issues on their own." (citation and internal quotation marks omitted)). The Supreme Court terminated the pilot program effective November 26, 2012, although judges may continue to appoint PCs. Notice to the Bar: Parenting Coordinators - Conclusion of Pilot Program, 210 N.J.L.J. 854 (Dec. 3, 2012), available at http://www.judiciary. state.nj.us/notices/2012/n121126a.pdf.
In June 2007, plaintiff consented to defendant relocating to Pennsylvania with the children on the condition that New Jersey would retain jurisdiction over their children. In July 2013, defendant filed a motion seeking a change of venue to Union County, where plaintiff resided. Plaintiff did not respond to this application and it was granted unopposed.
In October 2013, defendant filed a motion in Union County seeking to have New Jersey relinquish jurisdiction because she and the children lived in Pennsylvania. Plaintiff cross-moved opposing this application and seeking other relief. Relying on the jurisdictional factors in New Jersey's Uniform Child Custody Jurisdiction Act (UCCJA), N.J.S.A. 2A:34-28 to -52, as explained in Peregoy v. Peregoy, 358 N.J. Super. 179 (App. Div. 2003), the judge granted defendant's motion on November 22, 2013. Plaintiff sought a stay of that order after defendant filed in Pennsylvania for relief. The stay was granted by a second Union County judge on March 21, 2014, because he thought a reversal likely, given that the UCCJA had been superseded by New Jersey's Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), N.J.S.A. 2A:34-53 to -95, effective December 13, 2004, before the November 2013 decision.
We do not defer to the trial court with regard to purely legal determinations. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citations omitted). The first judge conducted the three-step analysis previously required by the UCCJA. The first step is to determine whether the parties' agreement concerning custody and parenting time contains a valid consent-to-jurisdiction clause. The second step is to determine whether any other state has acquired jurisdiction pursuant to applicable law. Finally, the third step, assuming concurrent jurisdiction, is to determine which state's jurisdiction is in the child's best interest. Peregoy, supra, 358 N.J. Super. at 196-97.
Pursuant to the UCCJEA, in effect at the time of the decision, New Jersey has "exclusive, continuing jurisdiction" because it made custody determinations. N.J.S.A. 2A:34-66(a); Griffith v. Tressel, 394 N.J. Super. 128, 139-40 (App. Div. 2007). The question the court must answer on remand is whether "circumstances have changed so as to divest this state of that jurisdiction." Griffith, supra, 394 N.J. Super. at 140. When one parent remains in New Jersey, "exclusive, continuing jurisdiction" remains here unless:
(1) a court of this State determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this State and that substantial evidence is no longer available in this State concerning the child's care, protection, training, and personal relationships[.]
N .J.S.A. 2A:34-66(a)(1).]
Also, a New Jersey court may decline to exercise its jurisdiction if it determines that it is an inconvenient forum and a court of another state is more appropriate. N.J.S.A. 2A:34-71(a). All relevant factors, including the eight following factors, must be considered prior to making this determination:
(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.
[N.J.S.A. 2A:34-71(b); S.B. v. G.M.B., 434 N.J. Super. 463, 475-80 (App. Div. 2014).]
An analysis pursuant to this statute did not occur. We therefore reverse and remand to give the motion judge an opportunity to fully review the current circumstances pursuant to the UCCJEA. We offer no opinion as to whether this analysis will lead to a different decision.
Reversed and remanded for further proceedings. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION