M.A.P. v. E.B.A. (FD-09-0282-21, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: March 24, 2022
• Docket: A-1057-21
• Status: Published

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1057-21

M.A.P.,

Plaintiff-Respondent, APPROVED FOR PUBLICATION v. March 24, 2022

E.B.A., APPELLATE DIVISION

Defendant-Appellant. _______________________

Argued March 2, 2022 – Decided March 24, 2022

Before Judges Fisher, DeAlmeida and Smith.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FD-09-0282-21.

Lindsay A. McKillop argued the cause for appellant (The Law Office of Rajeh A. Saadeh, LLC, attorneys; Rajeh A. Saadeh and Lindsay A. McKillop, on the brief).

M.A.P., respondent, argued the cause pro se.

The opinion of the court was delivered by

FISHER, P.J.A.D. In this appeal, we consider whether New Jersey's Uniform Interstate

Family Support Act's1 long arm statute 2 may reach a nonresident alleged to have

fathered a child through a sexual relationship with a New Jersey resident that

occurred in New York. Concluding that in these circumstances our courts may

not exert personal jurisdiction over a nonresident defendant with no other

relevant contact with New Jersey, we reverse and remand for a dismissal of

plaintiff's paternity suit.

I

Plaintiff M.A.P. (Maura 3) gave birth to a child in New Jersey in April

2020. She claims the child was conceived during her brief relationship – in July

2019 in New York City – with defendant E.R.A. (Edward), an Argentine

national. At that time, Maura was a New Jersey resident and Edward resided

either in New York or in the District of Columbia. Maura first filed a paternity

suit against Edward in the District of Columbia. Although Edward appears not

to have objected to having the paternity dispute resolved there, Maura

1 N.J.S.A. 2A:4-30.124 to -30.201. 2 N.J.S.A. 2A:4-30.129. 3 All names used in this opinion are fictitious to protect the parties ' and the child's privacy. A-1057-21 2 discontinued the action in September 2020. By the time she commenced this

New Jersey paternity action, Edward had returned to Argentina indefinitely.

When Edward failed to appear in this action – later claiming he was not

properly served with process – the judge conducted a hearing and granted Maura

relief based on her testimony alone. A few months later, defense counsel made

a limited appearance, seeking dismissal based on an alleged lack of personal

jurisdiction over Edward and the alleged insufficiency of service of process; he

alternatively sought an order vacating the prior substantive order. The judge

heard the argument of both Maura, who then and now represents herself, and

Edward's counsel, and denied Edward's jurisdictional motion for reasons

expressed in an oral decision. The judge did not address Edward's claim that he

was not properly served with process.

II

We granted Edward's motion for leave to appeal to consider the trial

judge's determination that Edward is subject to personal jurisdiction in our

courts. In his brief on the merits, Edward argues that New Jersey lacks personal

jurisdiction over him because: "the child does not reside in New Jersey as a

result of [his] acts and directives"; he "does not maintain sufficient minimum

A-1057-21 3 contacts with New Jersey"; and "fair play and substantial justice" militate

against haling him into court here.

The Legislature has declared that our courts may exercise personal

jurisdiction in an action "to determine parentage of a child" over a nonresident

individual in any one of seven instances delineated in N.J.S.A. 2A:4-30.129(a).

Five of those instances do not even arguably apply here.4

The other two permit personal jurisdiction over a nonresident when "the

child resides in this State as a result of the [nonresident's] acts or directives,"

N.J.S.A. 2A:4-30.129(a)(5) (subsection (5)), and when "there is any other basis

consistent with the constitutions of this State and the United States," N.J.S.A.

2A:4-30.129(a)(7) (subsection (7)). We are satisfied that Maura presented

insufficient evidence to support a prima facie claim to personal jurisdiction

under either subsection.

4 The inapplicable five permit the exercise of personal jurisdiction when the individual is: "personally served with a summons or notice within this State"; "submits to the jurisdiction of this State"; "resided with the child in this State"; "resided in this State and provided prenatal expenses or support for the child"; and "engaged in sexual intercourse in this State and the child may have been conceived by that act of intercourse." N.J.S.A. 2A:4-30.129(a)(1), (2), (3), (4), and (6). A-1057-21 4 A. SUBSECTION (5)

The trial judge concluded that subsection (5) allowed for the exertion of

personal jurisdiction over Edward, even though he and Maura engaged in sexual

relations outside this State, because he knew Maura was a New Jersey resident.

We reject the far too facile view that subsection (5)'s required "act" may be the

sexual act that caused conception.

First, the judge's view that subsection (5) allows our courts to determine

paternity disputes regardless of where a New Jersey resident may travel and

engage in sexual relations does not remotely square with the general limitations

of a state's jurisdiction recognized by the due process clause. See Charles

Gendler & Co. v. Telecom Equip. Corp., 102 N.J. 460, 469 (1986). When the

Legislature enacted subsection (5), it could not have intended such a boundless

jurisdictional reach, creating in personam jurisdiction in New Jersey simply

because the mother was a New Jersey resident when she allegedly conceived in

some other state or country. At first blush, the judge's holding may not seem

unreasonable when considering the parties' brief sexual relationship required

only Maura's short trip across the Hudson River, but, if endorsed, this

interpretation would leave subsection (5) untethered from the due process clause

and lead to unpalatable results. For example, had Maura instead traveled to

A-1057-21 5 Alaska and there had a relationship with an Alaskan, who had never been further

south or east of Puget Sound, under the judge's interpretation of subsection (5)

that Alaskan resident could be compelled to defend a paternity suit in New

Jersey simply because he knew at the alleged conception that Maura was a New

Jersey resident.

Moreover, the judge's interpretation is not in harmony with the rest of the

long-arm statute. The Legislature listed the circumstances that would permit the

exercise of jurisdiction over nonresidents in paternity disputes. Because we

interpret similar statutes by assuming "the express mention of one thing implies

the exclusion of another," Gangemi v. Berry, 25 N.J. 1, 11 (1957); see also

Borough of E. Rutherford v. E. Rutherford PBA Local 275, 213 N.J. 190, 215

(2013), subsection (5) must be interpreted as aiming at a different circumstance

than that which is covered in other parts of the statute. That is, to interpret

subsection (5) as permitting jurisdiction when a plaintiff has sexual relations

outside the State with a nonresident, who is aware the plaintiff is a New Jersey

resident, would, for example, subsume subsection (6), which allows for

jurisdiction over a nonresident who has engaged in sexual intercourse with the

plaintiff in this State. What would be the purpose of subsection (6) if subsection

(5) is to be interpreted as broadly as held by the judge here?

A-1057-21 6 Instead, we are satisfied that in enacting subsection (5), the Legislature

intended a far more limited basis for personal jurisdiction over a nonresident.

Subsection (5) requires evidence that the nonresident engaged in an "act" or

issued a "directive" that results in the "child" residing in this State. Considering

the plain meaning and sense of these words, we conclude that the "act" or

"directive" that causes a "child" to reside in this State is most likely limited to

the nonresident's affirmative conduct after the child's birth. This is a more

sensible reading because, until a plaintiff successfully gives birth, there is no

"child"5 or mother to that child for a nonresident defendant to act upon or direct

and no child about which to sue for a declaration of paternity. Although

subsection (5) has not been considered in any of our prior case law, the

experience of other states with the same or similar statute focuses on the conduct

of the nonresident putative father after the child's birth, not before. See In re

Marriage of Malwitz, 99 P.3d 56 (Colo. 2004); Franklin v. Commonwealth,

5 The word "child" as used in these provisions is defined as "an individual . . . over or under the age of majority," N.J.S.A. 2A:4-30.125(a), which clearly denotes a living, breathing "person," not an unborn fetus. See Giardina v. Bennett, 111 N.J. 412, 421 (1988); Smith v. Brennan, 31 N.J. 353, 356 (1960); see also Ex parte Z.W.E., __ So.3d __ (Ala. 2021) (interpreting a similar definition of "child" in Alabama's Uniform Paternity Act as excluding an unborn fetus). A-1057-21 7 Dep't of Soc. Servs., Div. of Child Support Enf't ex rel. Franklin, 497 S.E.2d

881 (Va. Ct. App. 1998).

We interpret subsection (5) so that it does not exceed the reach of the due

process clause, see Avdel Corp. v. Mecure, 58 N.J. 264, 268 (1971), and,

therefore, hold that subsection (5) does not extend to a New Jersey's resident's

impregnation outside our borders by a nonresident. Viewing subsection (5) as

requiring proof of the nonresident putative father's actions or conduct 6 that

caused the child to be a resident here – of which there is no evidence – we

conclude subsection (5) does not support the exercise of personal jurisdiction.

B. SUBSECTION (7)

Having found subsection (5) inapplicable, we consider subsection (7). The

trial judge concluded Edward had sufficient contacts with New Jersey, but the

judge's analysis reveals that she chiefly relied on Edward's sexual relationship

with Maura in New York. In responding to the appeal, Maura argues more than

that. She argues that Edward had sufficient contact with New Jersey beyond his

knowledge that she was then residing in this State when the child was allegedly

6 The words "act" and "directive" also suggest in their context the nonresident's attempt to alter a child's status quo. Maura was already a New Jersey resident when the child was conceived and she remained a New Jersey resident thereafter, at least for a while. See n.9 below. The sexual act, therefore, did not cause any change in Maura's residency. A-1057-21 8 conceived. In particular, Maura relies on Edward's retention of a New Jersey

attorney to resolve any questions about paternity as a contact with the forum

sufficient to permit the exercise of personal jurisdiction under subsection (7).

We find no merit in her arguments.

We initially and briefly reject the argument that the facts relied on by the

judge in her mistaken application of subsection (5) support a finding of a

contact, let alone a sufficient contact, with New Jersey, for the reasons expressed

above.

Instead, we must turn to the central question posed by subsection (7): did

Edward, a nonresident, "purposefully avail[] [himself] of the privilege of

conducting activities within the forum State" so that he would have "reasonably

anticipate[d]" being haled into this forum as a result. Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 474-75 (1985). Stated another way, the due process

clause requires that a nonresident's contacts with the forum be such that

maintenance of the suit in the forum "does not offend 'traditional notions of fair

play and substantial justice.'" World-Wide Volkswagen Corp. v. Woodson, 444

U.S. 286, 292 (1980) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).

When making this determination, our jurisprudence requires that courts

distinguish between the nonresident's contacts with the forum that relate to the

A-1057-21 9 claims asserted and the contacts with the forum that are unrelated to the claims

asserted. Waste Mgmt. v. Admiral Ins. Co., 138 N.J. 106, 119 (1994). The

former is referred to as "specific" jurisdiction and the latter as "general"

jurisdiction. These concepts are applied in the same way in paternity suits as in

other cases. C.L. v. W.S., 406 N.J. Super. 484, 492 (App. Div. 2009).

There not having been an evidentiary hearing about the existence or

sufficiency of Edward's relationship with New Jersey, we consider the

applicability of subsection (7) – and whether discovery, an evidentiary hearing,

or both, are required – by first considering some undisputed facts and by

assuming the truth of Maura's factual assertions. First, Edward lived in New

Jersey from 2012 until he moved to Virginia in June 2018. It was there he and

Maura met. Maura moved to New Jersey and Edward to New York sometime in

2019. Edward did not remain in New York long; later in 2019 he moved to the

District of Columbia. There is no allegation Edward ever resided in New Jersey

during the time the parties knew each other or, for that matter, since.

Because there is no evidence of Edward having contacts with New Jersey

to support a claim of general jurisdiction,7 we consider whether Edward had

7 Maura asserted in the trial court that, after he permanently moved away from New Jersey in 2018, Edward remained involved in writing an essay with a

A-1057-21 10 contacts with New Jersey that related to this particular matter that would justify

a finding of specific jurisdiction. In this regard, Maura asserts that Edward sent

a letter to her New Jersey address in April 2020 stating his lack of interest in

being involved with her or the child. He also sent text messages to Maura – we'll

assume she received them while she was in New Jersey – that struck a more

friendly tone. But these communications are insufficient to establish specific

jurisdiction. The minimum contacts required by the due process clause cannot

consist of these types of inessential communications sent into the forum state or

to a resident of the forum. See Lebel v. Everglades Marina, Inc., 115 N.J. 317,

325 (1989); Egg Harbor Care Ctr. v. Scheraldi, 455 N.J. Super. 343, 354-55

(App. Div. 2018).

Maura also refers to letters sent by Edward's former New Jersey attorney

to her in October 2019. These letters conveyed proposals for amicably resolving

the paternity dispute. Even though there was a suggestion – never agreed on –

that Edward travel to New Jersey to have blood drawn, that suggestion was part

of a settlement proposal, and we are satisfied it would be against the policies

underlying N.J.R.E. 408 for offers of settlement to be used in this manner. See,

Princeton University professor. There, however, is no allegation or assertion about the extent of that academic relationship or that Edward ever entered this State in furtherance of that project. A-1057-21 11 e.g., Nationwide Mut. Ins. Co. v. Tryg Int'l Ins. Co., 91 F.3d 790, 796 (6th Cir.

1996).8

Maura also asserted in the trial court that Edward "visited [her] at [her]

New Jersey apartment in August 2019 to discuss the pregnancy." She, however,

provided no information about what may have been discussed that would have

relevance to the jurisdictional question, and Edward apparently disputes this

meeting ever occurred. Without more, we fail to see how this single alleged New

Jersey visit could form the sole support for a finding that would be consistent

with fair play and substantial justice in exerting personal jurisdiction over the

nonresident. In the final analysis, the jurisdictional question is not governed by

a mere counting of contacts or the mere existence of a single inessential contact

of indiscernible importance. Courts must consider the quality of the

nonresident's relationship to the forum and the litigation. Kulko v. Super. Ct. of

8 We are mindful that N.J.R.E. 408 precludes evidence of settlement discussions and the like only when offered "to prove or disprove the liability for, or invalidity of, or amount of the disputed claim." But we agree with the Nationwide court that steps taken in pursuit of settlement – a favored policy in the law and in this State, Nolan v. Lee Ho, 120 N.J. 465, 472 (1990) – should not be considered as proof that the nonresident purposefully availed him- or herself of the forum's laws because it would de-incentivize settlement negotiations. In Nationwide, for example, the court held irrelevant to a determination whether a Danish corporation could be haled into an Ohioan court because it had previously sent a representative to Ohio to attempt to negotiate a settlement with the plaintiff. A-1057-21 12 Cal., 436 U.S. 84, 92 (1978). Without an understanding about what occurred at

this alleged meeting in New Jersey or its ultimate impact on the child becoming

a New Jersey resident after his birth in April 2020, and without any evidence to

suggest that this one meeting revealed Edward intended to avail himself of the

laws of New Jersey, World-Wide Volkswagen, 444 U.S. at 297, we reject the

notion that it would be fair to subject Edward to the jurisdiction of our courts on

such evidence. Whether a nonresident's contacts represent a "purposeful

availment" of the forum's laws is not met "solely as a result of 'random,'

'fortuitous,' or 'attenuated' contacts." Burger King Corp., 471 U.S. at 475

(citations omitted).

III

For these reasons, we find no merit in Maura's contentions that either

subsection (5) or subsection (7) of N.J.S.A. 2A:4-30.129(a) provide a basis for

exercising personal jurisdiction over Edward in our courts. Although not argued,

we also find no basis for compelling discovery into the jurisdictional dispute or

a need for an evidentiary hearing. Accepting at face value the truth of Maura's

A-1057-21 13 allegations about Edward's alleged relationship to New Jersey leads us to the

same place and requires a discontinuance of this action. 9

The order under review is reversed and the matter is remanded to the tr ial

court for the entry of an order dismissing the complaint. We do not retain

jurisdiction.

9 We lastly note that the judge's decision seems to have also been informed by her concern that Maura's only alternative forum would be in Argentina. Even if that was a factor, it has not been shown that Edward would not be subject to personal jurisdiction in more convenient fora. For example, we note that, according to her submissions in this court, Maura appears to now reside in New York City. Assuming the child also resides with her, and considering her allegation that conception occurred during relations with Edward in New York City, it is hard to see why New York might not be able to exert personal jurisdiction over Edward. New York's Uniform Interstate Family Support Act contains a long-arm statute identical to N.J.S.A. 2A:4-30.129(a), and permits the exercise of personal jurisdiction over a nonresident who "engaged in sexual intercourse" in New York with the result that "the child may have been conceived by that act of intercourse." N.Y. Family Law § 580-201(a)(6) (Consol. 2016). We also reiterate that Maura previously commenced a paternity suit in the District of Columbia, apparently when Edward was a resident there, without a dispute from Edward about the exercise of personal jurisdiction over him. Assuming the lack of a more convenient forum than Argentina is a basis for exercising in personam jurisdiction, it hasn't been shown Argentina is the only available forum. A-1057-21 14