NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3443-17T2
L.M.,
Plaintiff-Appellant,
v.
K.D.,
Defendant-Respondent. ________________________
Argued September 17, 2019 – Decided October 23, 2019
Before Judges Accurso and Gilson.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-0180-11.
John Anthony Underwood argued the cause for appellant (Underwood & Micklin, LLC, attorneys; John Anthony Underwood on the briefs).
K.D., respondent, argued the cause pro se.
PER CURIAM In this appeal, we consider whether the family court erred in holding that
New Jersey retained exclusive jurisdiction over a parenting time dispute
concerning a daughter who was over the age of eighteen, had been living with
her mother in Virginia for more than five years, and where a Virginia court had
appointed the mother the guardian of the daughter because the daughter was
mentally incapacitated. We hold that under these circumstances New Jersey no
longer had jurisdiction under the Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA), N.J.S.A. 2A:34-53 to -95. Accordingly, we vacate
an order entered on February 28, 2018, and remand with direction that the
custody and parenting matter in New Jersey be dismissed.
I.
This appeal arises out of an ongoing custody and parenting time dispute
between L.M. (Lynne), the mother, who lives in Virginia, and K.D. (Kurt), the
father, who lives in New Jersey. 1 Lynne and Kurt were married in May 1990.
While married, they adopted two children: S.D. (Sally), a daughter who was
born in January 1998; and Z.D. (Zeek), a son who was born in May 1998. Zeek
was emancipated in 2016, and he is not the subject of this parenting time dispute.
1 Because the daughter is incapacitated, we use initials and fictitious names to protect the privacy interests of the parties. A-3443-17T2 2 Kurt and Lynne divorced in New Jersey in December 2011. The final
judgment of divorce provided that they would share joint legal and residential
custody of their children. In April 2013, Lynne and Kurt agreed to change the
custody arrangement. Accordingly, they asked the New Jersey family court to
enter an order, dated April 2, 2013, which provided, in relevant part, that (1)
Lynne and Sally would relocate to Virginia; (2) Lynne would be the parent of
primary residential custody of Sally; (3) Kurt would be the parent of primary
residential custody of Zeek; (4) each non-residential custodial parent would
have parenting time with the child who was not living with them in accordance
with an agreed-upon schedule; and (5) Lynne and Kurt would continue to "share
joint custody" of both children.
On September 13, 2013, the New Jersey family court entered another
order allowing Kurt to relocate to Florida with Zeek. 2 That order also set forth
a new visitation schedule for each parent. Under that order, Kurt was to have
parenting time with Sally on her spring break, during the summer, and on
alternating Thanksgiving and Christmas holidays. The order also allowed
"[a]dditional visitation . . . upon fourteen (14) days-notice to the other party."
2 The order was dated September 12, 2013, but was filed on September 13, 2013. A-3443-17T2 3 In January 2016, Sally turned eighteen years old. On March 2, 2016, a
Virginia court entered an order declaring Sally incapacitated and appointed
Lynne as her sole guardian. The order also appointed Lynne's brother and sister
as standby guardians. The Virginia order was entered after Kurt was given
notice of the guardianship application. Kurt did not object to the application
and he signed the Virginia order, acknowledging that he had "seen" the order.
Since April 2016, Lynne and Kurt have been involved in ongoing disputes
about Kurt's parenting time with Sally and his right to receive medical
information and participate in medical decisions concerning Sally. Those
disputes have engendered several motions before the New Jersey family court
and the court has entered several orders requiring Lynne to comply with the
parenting time called for in the September 12, 2013 order. 3
In August 2017, Kurt applied for an order to show cause in New Jersey
seeking sole legal custody of Sally. That application was denied because Kurt
failed to demonstrate the existence of any emergent circumstances.
3 After relocating to Florida, Kurt and Zeek moved to Massachusetts. Kurt is currently living in New Jersey. The Family court determined that Kurt continued to be domiciled in New Jersey for jurisdictional purposes under the UCCJEA even while he was living in other states. A-3443-17T2 4 While Kurt's request for sole legal custody was pending, Lynne filed a
cross-motion to change jurisdiction to Virginia in accordance with the UCCJEA.
The family court heard arguments on that motion on November 3, 2017. On
February 28, 2018, the court denied Lynne's motion and stated that New Jersey
"continues to exercise exclusive jurisdiction" over this matter. The court also
issued a thirty-three-page written opinion explaining its reasons for retaining
jurisdiction and denying the request for a transfer of jurisdiction to Virginia.
In the family court's opinion, it noted that Lynne had previously requested
a transfer to Virginia, but the court found that it had not preclusively decided
that jurisdictional issue in a prior order. Accordingly, the court stated that it
would consider the jurisdictional issue on the merits. The court then analyzed
four substantive issues and held that (1) the UCCJEA applied to Sally even
though she was over eighteen years old; (2) the UCCJEA applied to a parenting
time order as part of a custody order; (3) the Virginia guardianship order did not
supersede the New Jersey orders concerning custody and parenting time; and (4)
the matter should not be transferred to Virginia as the most convenient for um
under N.J.S.A. 2A:34-71(b).
A-3443-17T2 5 II.
Lynne now appeals from the February 28, 2018 order denying her motion
to transfer jurisdiction to Virginia. We hold that New Jersey no longer has
jurisdiction because Virginia has determined that Sally is no longer a child.
Moreover, Virginia has jurisdiction over the guardianship and any request for
parenting time must be made in Virginia. Accordingly, we vacate the February
28, 2018 order and remand with direction that the Family court dismiss the
custody and parenting matter.
The issue before us is a question of law based on undisputed facts.
Accordingly, our standard of review is de novo. See Reese v. Weis, 430 N.J.
Super. 552, 586 (App. Div. 2013) (citing Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995)). We also note that the family
court did not hold an evidentiary hearing on this motion. Thus, the material facts
are taken from the written record and the family court did not make any factual
findings to which we owe deference. See ibid.
The New Jersey UCCJEA is modeled on the "Uniform Child Custody
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3443-17T2
L.M.,
Plaintiff-Appellant,
v.
K.D.,
Defendant-Respondent. ________________________
Argued September 17, 2019 – Decided October 23, 2019
Before Judges Accurso and Gilson.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-0180-11.
John Anthony Underwood argued the cause for appellant (Underwood & Micklin, LLC, attorneys; John Anthony Underwood on the briefs).
K.D., respondent, argued the cause pro se.
PER CURIAM In this appeal, we consider whether the family court erred in holding that
New Jersey retained exclusive jurisdiction over a parenting time dispute
concerning a daughter who was over the age of eighteen, had been living with
her mother in Virginia for more than five years, and where a Virginia court had
appointed the mother the guardian of the daughter because the daughter was
mentally incapacitated. We hold that under these circumstances New Jersey no
longer had jurisdiction under the Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA), N.J.S.A. 2A:34-53 to -95. Accordingly, we vacate
an order entered on February 28, 2018, and remand with direction that the
custody and parenting matter in New Jersey be dismissed.
I.
This appeal arises out of an ongoing custody and parenting time dispute
between L.M. (Lynne), the mother, who lives in Virginia, and K.D. (Kurt), the
father, who lives in New Jersey. 1 Lynne and Kurt were married in May 1990.
While married, they adopted two children: S.D. (Sally), a daughter who was
born in January 1998; and Z.D. (Zeek), a son who was born in May 1998. Zeek
was emancipated in 2016, and he is not the subject of this parenting time dispute.
1 Because the daughter is incapacitated, we use initials and fictitious names to protect the privacy interests of the parties. A-3443-17T2 2 Kurt and Lynne divorced in New Jersey in December 2011. The final
judgment of divorce provided that they would share joint legal and residential
custody of their children. In April 2013, Lynne and Kurt agreed to change the
custody arrangement. Accordingly, they asked the New Jersey family court to
enter an order, dated April 2, 2013, which provided, in relevant part, that (1)
Lynne and Sally would relocate to Virginia; (2) Lynne would be the parent of
primary residential custody of Sally; (3) Kurt would be the parent of primary
residential custody of Zeek; (4) each non-residential custodial parent would
have parenting time with the child who was not living with them in accordance
with an agreed-upon schedule; and (5) Lynne and Kurt would continue to "share
joint custody" of both children.
On September 13, 2013, the New Jersey family court entered another
order allowing Kurt to relocate to Florida with Zeek. 2 That order also set forth
a new visitation schedule for each parent. Under that order, Kurt was to have
parenting time with Sally on her spring break, during the summer, and on
alternating Thanksgiving and Christmas holidays. The order also allowed
"[a]dditional visitation . . . upon fourteen (14) days-notice to the other party."
2 The order was dated September 12, 2013, but was filed on September 13, 2013. A-3443-17T2 3 In January 2016, Sally turned eighteen years old. On March 2, 2016, a
Virginia court entered an order declaring Sally incapacitated and appointed
Lynne as her sole guardian. The order also appointed Lynne's brother and sister
as standby guardians. The Virginia order was entered after Kurt was given
notice of the guardianship application. Kurt did not object to the application
and he signed the Virginia order, acknowledging that he had "seen" the order.
Since April 2016, Lynne and Kurt have been involved in ongoing disputes
about Kurt's parenting time with Sally and his right to receive medical
information and participate in medical decisions concerning Sally. Those
disputes have engendered several motions before the New Jersey family court
and the court has entered several orders requiring Lynne to comply with the
parenting time called for in the September 12, 2013 order. 3
In August 2017, Kurt applied for an order to show cause in New Jersey
seeking sole legal custody of Sally. That application was denied because Kurt
failed to demonstrate the existence of any emergent circumstances.
3 After relocating to Florida, Kurt and Zeek moved to Massachusetts. Kurt is currently living in New Jersey. The Family court determined that Kurt continued to be domiciled in New Jersey for jurisdictional purposes under the UCCJEA even while he was living in other states. A-3443-17T2 4 While Kurt's request for sole legal custody was pending, Lynne filed a
cross-motion to change jurisdiction to Virginia in accordance with the UCCJEA.
The family court heard arguments on that motion on November 3, 2017. On
February 28, 2018, the court denied Lynne's motion and stated that New Jersey
"continues to exercise exclusive jurisdiction" over this matter. The court also
issued a thirty-three-page written opinion explaining its reasons for retaining
jurisdiction and denying the request for a transfer of jurisdiction to Virginia.
In the family court's opinion, it noted that Lynne had previously requested
a transfer to Virginia, but the court found that it had not preclusively decided
that jurisdictional issue in a prior order. Accordingly, the court stated that it
would consider the jurisdictional issue on the merits. The court then analyzed
four substantive issues and held that (1) the UCCJEA applied to Sally even
though she was over eighteen years old; (2) the UCCJEA applied to a parenting
time order as part of a custody order; (3) the Virginia guardianship order did not
supersede the New Jersey orders concerning custody and parenting time; and (4)
the matter should not be transferred to Virginia as the most convenient for um
under N.J.S.A. 2A:34-71(b).
A-3443-17T2 5 II.
Lynne now appeals from the February 28, 2018 order denying her motion
to transfer jurisdiction to Virginia. We hold that New Jersey no longer has
jurisdiction because Virginia has determined that Sally is no longer a child.
Moreover, Virginia has jurisdiction over the guardianship and any request for
parenting time must be made in Virginia. Accordingly, we vacate the February
28, 2018 order and remand with direction that the Family court dismiss the
custody and parenting matter.
The issue before us is a question of law based on undisputed facts.
Accordingly, our standard of review is de novo. See Reese v. Weis, 430 N.J.
Super. 552, 586 (App. Div. 2013) (citing Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995)). We also note that the family
court did not hold an evidentiary hearing on this motion. Thus, the material facts
are taken from the written record and the family court did not make any factual
findings to which we owe deference. See ibid.
The New Jersey UCCJEA is modeled on the "Uniform Child Custody
Jurisdiction and Enforcement Act," promulgated by the National Conference of
Commissioners on Uniform State Laws. See UCCJEA prefatory note, 9 (Part
IA) U.L.A. 649-50 (1999); see also Senate Judiciary Committee Statement to S.
A-3443-17T2 6 150 (reprinted following N.J.S.A. 2A:34-53). The Act "ensure[s] 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). The UCCJEA "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." Ibid.
Normally, there are two questions a court should consider when
addressing jurisdiction concerning custody of a child. Id. at 139. The first, is
whether this state acquired initial "exclusive, continuing jurisdiction" over
custody determinations. Ibid. The relevant statute for that determination is
N.J.S.A. 2A:34-66(a). That provision of the UCCJEA states that a court of this
state has exclusive continuing jurisdiction when it has made the initial custody
determination. Here, there is no dispute that New Jersey originally had
exclusive continuing jurisdiction.
The second question is whether the court should give up or transfer
jurisdiction because of changed circumstances. See N.J.S.A. 2A:34-66. Before
reaching that second question, the court must also determine whether the
UCCJEA still controls. The UCCJEA governs custody disputes concerning a
A-3443-17T2 7 "child." N.J.S.A. 2A:34-58. The Act defines a child as "an individual who has
not attained 18 years of age." N.J.S.A. 2A:34-54.
We hold that when the issue concerning custody and parenting time came
before the New Jersey court in 2017, Sally was no longer a child under the
definition of the UCCJEA. The material and controlling facts are that Sally was
over the age of eighteen and a Virginia court had entered a guardianship order.
Those two undisputed facts establish as a matter of law that on March 2, 2016,
the UCCJEA no longer controlled this parenting time dispute. As already noted,
Sally had turned eighteen in January 2016. More importantly, a Virginia court
declared that Sally was a mentally incapacitated adult who needed a guardian.
The Virginia court then appointed Lynne as Sally's sole guardian under
Virginia's Uniform Adult Guardianship and Protective Proceedings Act. VA.
CODE ANN. §§ 64.2-2000 to -2029 (accord N.J.S.A. 3B:12B-1 to -21). By its
plain language, the Virginia act applies to adults. Ibid. Virginia law also
provides that "unless an exception is specifically provided in this Code, a person
shall be an adult, shall be of full age, and shall reach the age of majority when
he [or she] becomes 18 years of age." VA. CODE ANN. § 1-204. Research has
revealed no Virginia statutory exception that would modify the reach of either
the Uniform Adult Guardianship Act or the UCCJEA.
A-3443-17T2 8 Significantly, Kurt had notice of the guardianship application, he did not
object, and he signed the Virginia order, acknowledging that he had seen it.
Before us, Kurt argues that he signed the order under duress. He points out that
he put the notation "UD" by his signature on the Virginia order. Whether Kurt
signed the order under duress is not an issue appropriately before us. Instead,
to the extent that Kurt can raise that issue, he must do so in Virginia where the
order was entered.
The family court in this matter reasoned that the UCCJEA continues to
control because Sally was mentally incapacitated and, at the time it entered its
order in February 2018, Sally was still under the age of twenty-one. While there
may be circumstances where New Jersey could interpret the UCCJEA to apply
to a person over the age of eighteen, we do not reach that question. When
Virginia entered the guardianship order, it classified Sally as an adult who
needed a guardian. It would run counter to one of the fundamental purposes of
the UCCJEA for New Jersey to make a different determination. In that regard,
Virginia has also adopted the UCCJEA. VA. CODE ANN. §§ 20-146.1 to -146.38.
Research has disclosed no Virginia case holding that the UCCJEA applies to an
individual who is over the age of eighteen.
A-3443-17T2 9 We also note that there are two subsequent developments that support our
holding. First, while this appeal was pending, Sally turned twenty-one in
January 2019. Consequently, Sally is no longer a child even under the reasoning
of the family court in its decision issued in February 2018.
Second, by agreement, the parties supplemented the record to include
three Virginia orders entered in 2019, which addressed the guardianship. In one
order, the Virginia court denied Kurt's motion to transfer the guardianship of
Sally to New Jersey. The court also rejected Kurt's argument that Lynne had
engaged in "unjustifiable conduct" sufficient to warrant the Virginia court to
decline jurisdiction over the guardianship of Sally. In another order, the
Virginia court modified the guardianship to allow Kurt to have visitatio n with
Sally and directed that Kurt be given timely notification of "significant
healthcare issues affecting" Sally. In the third order, the Virginia court denied
Kurt's application to register the Virginia guardianship in New Jersey and to
enforce the New Jersey parenting time orders.
Those Virginia orders demonstrate that in 2019 Kurt voluntarily sought
relief in Virginia. Consequently, he should not be allowed to continue to seek
different and conflicting relief from a court in New Jersey. Furthermore, on a
practical note, Kurt has the relief he sought: he will be given parenting time with
A-3443-17T2 10 Sally in accordance with the Virginia guardianship order. The Virginia order
now provides for the same visitation schedule as the New Jersey family court's
order of September 13, 2013.
As we have decided this case based on Virginia's determination that Sally
is an adult, Kurt's remaining arguments concerning the application of New
Jersey's implementation of the UCCJEA to individuals over the age of eighteen
are moot. To the extent that Kurt has made arguments that we have not
specifically addressed, we deem those arguments to lack sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Reversed and remanded. We do not retain jurisdiction.
A-3443-17T2 11