NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2083-12T1
S.B.,
Plaintiff-Appellant, APPROVED FOR PUBLICATION
v. February 19, 2014
APPELLATE DIVISION G.M.B., now known as G.M.P.,
Defendant-Respondent.
____________________________________________
Submitted January 7, 2014 – Decided February 19, 2014
Before Judges Fisher, Koblitz and O'Connor.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2556-11E.
Goldstein, Bachman & Newman, P.A., attorneys for appellant (Regan A. Stempniewicz, on the brief).
G.M.P., respondent, pro se.
The opinion of the court was delivered by
FISHER, P.J.A.D.
In this appeal, we consider whether the trial judge erred
in applying New Jersey's version of the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA)1 in declining
1 N.J.S.A. 2A:34-53 to -95. jurisdiction and finding Canada to be a more appropriate forum
for the parties' parenting-time dispute. Because it has not
been shown that plaintiff will likely be able to enter Canada
due to his criminal conviction for an assault on defendant, and
because the parties' property settlement agreement (PSA), which
was executed a few months earlier, clearly and unambiguously
stipulated that New Jersey would continue to be the exclusive
jurisdiction for parenting-time disputes, we conclude that the
judge misapplied N.J.S.A. 2A:34-71.
I
In May 2011, defendant G.M.P. (Glenda) filed a domestic
violence action and, on June 14, 2012, obtained a final
restraining order (FRO) against her husband of ten years,
plaintiff S.B. (Stephen).2 Stephen pleaded guilty to a third-
degree offense with regard to the event that gave rise to the
FRO. On July 13, 2012, Stephen began a three-year probationary
term.
On May 3, 2012, the marriage was dissolved by way of a dual
judgment of divorce, which incorporated the parties' PSA. The
parties have four children, and the PSA stipulated that Glenda
could remove the minor children from New Jersey to Brighton,
2 The names we have assigned to the parties are fictitious.
2 A-2083-12T1 Ontario, Canada. Stephen's consent to removal was conditioned
on Glenda's "express[ed] and irrevocabl[e] consent[]" that,
until their youngest child was emancipated, New Jersey would
"retain continuing exclusive jurisdiction over all matters and
proceedings pertaining to child custody, child support, and
parenting time." She also agreed: that any orders regarding
custody, support or parenting time entered by our courts would
"supersede any such orders entered in Canada and shall have and
be given full force and effect in Canada"; that by entering into
the PSA, she "expressly and irrevocably assent[ed] and
submit[ted]" to personal jurisdiction in our courts; that she
"irrevocably consent[ed]" to receiving service of any pleadings
at her residence in Canada; and that she "expressly and
irrevocably waive[d] any claim or defense of improper service,
lack of personal jurisdiction, improper venue or forum non
conveniens or any similar basis."
Glenda moved with the children to Canada, on August 2,
2012. On or about September 13, 2012, slightly more than one
month later and a mere four months after the PSA's execution,
Stephen moved in the trial court, asserting that Glenda had
failed to provide him with parenting time over the Labor Day
weekend. In considering the motion, and notwithstanding the
parties' stipulation in their PSA that the trial court would
3 A-2083-12T1 retain jurisdiction over custody and visitation issues, the
motion judge advised the parties that, in the judge's words, he
would "sua sponte [consider] whether Ontario was a more
appropriate forum under N.J.S.A. 2A:34-71 as interpreted" by
Griffith v. Tressel, 394 N.J. Super. 128 (App. Div. 2007). For
reasons expressed in a written opinion, the judge found New
Jersey was "an inconvenient forum within the meaning of N.J.S.A.
2A:34-71 and that it is appropriate for Ontario to exercise
jurisdiction."
In moving for enforcement of the PSA's parenting-time
provisions, Stephen argued that the designation of Canada as the
location for the exercise of some of Stephen's parenting time
was no longer feasible because his criminal conviction barred
his entry into Canada. This possibility was anticipated in the
PSA, which stated that:
If, for any reason, the Husband is refused entry into Canada and prevented from exercising the parenting time set forth in subparagraphs (h) through (j) above,[3] the
3 The PSA delineated Stephen's parenting time with the children in great detail. Among other things, subparagraph (d) stipulated he would have extended visitation with the children in New Jersey for a seven-week period. Subparagraph (f) permitted Stephen visitation with the children in New Jersey every "American Thanksgiving weekend" and for their spring breaks from school. And subparagraph (g) called for the parties to alternate each year having the children at Christmas time. Subparagraphs (h) and (i) provided Stephen with additional time with the children on Father's Day weekend, the weekend of (continued)
4 A-2083-12T1 parties shall agree on reasonable equivalent parenting time for the Husband at an agreed upon location in the United States. The parties reserve the right to apply to the [c]ourt for a determination of this issue in the event that they cannot reach an agreement.
In light of this provision and his assertion he would not be
able to cross the border into Canada, Stephen sought an order
requiring that Glenda bring the children to Cortland, New York,
approximately halfway between Glenda's residence in Canada and
Stephen's in New Jersey for the Canadian parenting time referred
to in the PSA.
Although she opposed the awarding of any relief – in fact,
Glenda chiefly argued that parenting time should be suspended
pending a psychological evaluation of Stephen – Glenda did not
argue for a Canadian forum. Whether the forum should be changed
was a matter unilaterally raised by the judge. After requesting
additional submissions on that topic, the trial judge held,
without conducting an evidentiary hearing, that a consideration
of the factors outlined in N.J.S.A. 2A:34-71 compelled a
(continued) Stephen's birthday, and the children's birthdays, in Canada. Subparagraph (j) afforded Stephen the right to overnight parenting time with the children in Canada one weekend "in each of the months during which he would otherwise not see them."
5 A-2083-12T1 declination of jurisdiction in favor of Canadian proceedings. 4
The November 28, 2012 order in question was stayed by the judge
for forty-five days pending the filing of a suit in Canada. The
judge also ruled on a number of ancillary monetary issues.
II
A
In considering the judge's declination of jurisdiction, the
first question to be considered "is whether this state acquired
'exclusive, continuing jurisdiction' over custody determinations
involving th[e] family when the initial order was entered."
Griffith, supra, 394 N.J. Super. at 139 (internal citations
omitted). There is no question that that is so; the parties and
children resided in New Jersey when the judgment defining the
custody and parenting issues was entered by the trial court.
The next question concerns "whether, during the time
between the initial order and the filing of the motion for
modification, circumstances have changed so as to divest this
state of that jurisdiction." Id. at 140. Certainly, there have
been changes; with Stephen's consent, the children have moved to
Canada with their mother. But there is no question that New
Jersey has not lost jurisdiction based on a lack of a
4 There were no proceedings pending in Canada at that time.
6 A-2083-12T1 "significant connection" or "substantial evidence." See
N.J.S.A. 2A:34-66(a)(1); Griffith, supra, 394 N.J. Super. at
142-45. Because the move to Canada occurred only a few months
before the PSA was executed, and because Stephen remains a New
Jersey resident and is still entitled to meaningful parenting
time with the children in New Jersey, there is no doubt New
Jersey has not lost jurisdiction over parenting-time
controversies. Indeed, as our Supreme Court has recognized, New
Jersey "'will continue to have modification jurisdiction until
it loses all or almost all connection with the child.'" Neger
v. Neger, 93 N.J. 15, 30 (1983) (quoting Kumar v. Superior
Court, 652 P.2d 1003, 1009-10 (Cal. 1982)).
Here, the trial judge did not find a loss of jurisdiction.
Instead, in relying on N.J.S.A. 2A:34-71, the judge determined
that in these circumstances New Jersey should decline
jurisdiction in favor of Canada. That determination requires a
consideration of whether "'the court of another State[5] is in a
better position to make the custody determination, taking into
consideration the relative circumstances of the parties.'"
Griffith, supra, 394 N.J. Super. at 148 (quoting UCCJEA § 207).
5 In this context, Canada is considered to be another state. See N.J.S.A. 2A:34-57(a).
7 A-2083-12T1 N.J.S.A. 2A:34-71(b) provides eight factors a court must
consider in making such a determination. Before turning to the
application of those factors here, however, we must recognize
that what is being considered is whether the home state "is an
inconvenient forum under the circumstances and [whether] a court
of another state is a more appropriate forum." N.J.S.A. 2A:34-
71(a). In short, to decline jurisdiction, the trial judge was
required not only to accurately determine that New Jersey
constitutes "an inconvenient forum" but also that Canada
represents "a more appropriate forum"; the statute joins those
two concepts with the word "and," and so both elements must be
found before the home state may decline jurisdiction.
B
We turn first to the latter question – whether Canada is a
more appropriate forum – because that question is dispositive.
The record does not permit a finding that Canada is "an
appropriate forum," let alone "a more appropriate forum."
Stephen presented a certification that explained how he
traveled to a border crossing in upstate New York and was denied
entry because of his criminal record. The trial judge assumed
this event actually occurred, but found that circumstance
irrelevant because of the judge's belief that – even though
Canadian law may, as a general matter, bar Stephen's entry due
8 A-2083-12T1 to his criminal record – Canadian immigration officials may make
exceptions and grant a temporary visa of limited duration and
scope. In short, the judge rejected Stephen's contention that
Canadian law "absolute[ly]" bars his entry, and he found that
Canadian law provides the discretion to permit entry.
Neither party has briefed Canadian law on this subject.
The judge referred to one statutory provision and a related
regulation in support of his belief that Stephen might be able
to secure entry into Canada to appear in its courts for a
limited purpose. Although a judge may take judicial notice of
foreign law, N.J.R.E. 201(a), we are not satisfied from the
limited state of the record in this regard that obtaining of
admission into Canada is as readily available as the judge
suggests. Moreover, the judge's interpretation of the
provisions he cited recognizes that, at the very least, Stephen
would be relegated to an application process, and perhaps
additional litigation, just to obtain the right to enter Canada.
And, of course, because entry into Canada, if at all permitted,
would undoubtedly rest in the discretion of Canadian officials,
Stephen may very well – at the conclusion of any such
proceedings – ultimately be denied access. In short, as the
trial judge recognized, until Stephen takes those steps "it is
premature at best to assume [he] would be denied entry" for
9 A-2083-12T1 purposes of litigating his parenting-time dispute with Glenda.
By the same token, it is premature to assume he will be
permitted entry. The judge, however, also had an answer for
this: "Even if [Stephen] is ultimately denied entry to Canada
he can still participate by video conferencing that will allow
him to have full access to the courtroom." The judge cited no
Canadian statute, rule or case law to support the conclusion
that Stephen would be permitted to participate in a Canadian
proceeding in this matter, let alone whether such a process
would constitute an adequate substitute for his physical
presence in the forum.
Moreover, Stephen's probation officer testified that
someone in Stephen's position would normally be barred from
leaving the United States, although he recognized a court could
allow him to leave for a specific purpose such as appearing in a
foreign court. The judge made no determination nor expressed
any opinion on the likelihood of Stephen obtaining such an
order. In short, as matters presently stand, there is no
guarantee that Stephen will either be permitted to leave New
Jersey or enter Canada for the proceedings to which the trial
judge relegated him.
As a result, we conclude that the record does not support a
finding that Canada constitutes "an appropriate forum," let
10 A-2083-12T1 alone "a more appropriate forum" than New Jersey. Multiple
obstacles stand in the way of Canada constituting an adequate
forum for the resolution of the parties' disputes.
The language of the applicable statute is couched in terms
similar to those used to describe the doctrine of forum non
conveniens, requiring that the current forum be "inconvenient"
and the other forum "appropriate." Compare D'Agostino v.
Johnson & Johnson, Inc., 225 N.J. Super. 250, 259 (App. Div.
1988), aff’d, 115 N.J. 491 (1989) (describing "the essence of
the doctrine" of forum non conveniens as allowing a court to
"decline jurisdiction whenever the ends of justice" demonstrate
the chosen forum "would be inappropriate") with N.J.S.A. 2A:34-
71(b) (requiring that "[b]efore determining whether it is an
inconvenient forum, a court of this State shall consider whether
it is appropriate for a court of another state to exercise
jurisdiction"). The adoption of language used by courts in
describing the doctrine of forum non conveniens strongly
suggests the Legislature sought our similar approach when
applying N.J.S.A. 2A:34-71.
The doctrine of forum non conveniens, to which we look for
additional guidance, is "equitable in nature," Kurzke v. Nissan
Motor Corp., 164 N.J. 159, 165 (2000), "a manifestation of a
'civilized judicial system,'" ibid. (quoting Baltimore & Ohio
11 A-2083-12T1 R.R. Co. v. Kepner, 314 U.S. 44, 55, 62 S. Ct. 6, 11, 86 L. Ed.
28, 34 (1941)). We find the trial judge's declination of
jurisdiction to be highly inequitable because it relegates
Stephen to an attempt to litigate his parenting-time issues in a
forum that may not be accessible, instead of in a jurisdiction
the parties expressly and unequivocally stipulated as the forum
for such disputes – a forum that unquestionably possesses
jurisdiction over the disputes. Because Canada has not been
shown to be an "appropriate" forum, we reverse.
C
Although not necessary to our disposition of this appeal,
we also reject the judge's conclusion that – even if Canada was
an appropriate forum – the eight factors set forth in N.J.S.A.
2A:34-71(b) support the declination of jurisdiction.
The first factor requires consideration of "whether
domestic violence has occurred and is likely to continue in the
future and which state could best protect the parties and the
child." N.J.S.A. 2A:34-71(b)(1). The judge recognized that our
courts granted Glenda an FRO and Stephen is serving a
probationary term here that arises from his conviction for the
same incident. The judge also found both New Jersey and Canada
law provide a comprehensive array of services for domestic
violence victims. The judge, however, seems to place this
12 A-2083-12T1 factor in favor of a Canadian forum simply because Glenda and
the children now reside there. And the judge gave no weight to
the fact that Glenda stipulated to a New Jersey forum after the
FRO was entered, after defendant pleaded guilty to a criminal
offense, and after Glenda formulated plans to move to Canada, or
the fact that there has been no domestic violence since the FRO
was granted.
The second factor requires consideration of "the length of
time the child[ren] ha[ve] resided outside this State."
N.J.S.A. 2A:34-71(b)(2). New Jersey was home to Glenda and the
children throughout the marriage; their four children, who were,
at the time of the entry of the order in question, eleven,
eight, seven, and four years old, were born and raised here
until Glenda's move to Canada in August 2012, only one month
prior to the filing of Stephen's motion. Although the judge
seems to have concluded this factor favors a Canadian forum, he
did so by mistakenly transforming this second factor into the
sixth factor, which requires consideration of "the nature and
location of the evidence required to resolve the pending
litigation, including the testimony of the child[ren]," N.J.S.A.
2A:34-71(b)(6), by stating: "the issues regarding parenting
that have been raised by this motion and cross-motion relate to
the current condition of the children and most of that evidence
13 A-2083-12T1 and the witnesses needed to present it are in Ontario." The
judge's interpretation of the second factor was erroneous. The
second factor relates only to the amount of time the children
have lived outside New Jersey. The simple answer is
approximately one month.6 This factor highly favors New Jersey's
retention of jurisdiction.
The third factor requires consideration of "the distance
between the court in this State and the court in the state that
would assume jurisdiction." N.J.S.A. 2A:34-71(b)(3). The judge
found that the distance between Glenda's current home and
Middlesex County is approximately 450 miles. In finding this
factor weighed in favor of a Canadian forum, the judge focused
on a New Jersey court's apparent inability to compel production
of records or witnesses. Again, the judge erroneously
transmogrified this factor into the sixth factor. Instead, the
third factor requires recognition that a Canadian forum is more
convenient for Glenda and a New Jersey forum is more convenient
for Stephen.
The fourth factor requires consideration of "the relative
financial circumstances of the parties." N.J.S.A. 2A:34-
6 The record suggests that Glenda and the children moved to Canada on August 2, 2012. After Stephen was allegedly deprived of parenting time on the Labor Day weekend, he filed his motion on or about September 13, 2012.
14 A-2083-12T1 71(b)(4). The judge found that the parties' most recent case
information statements revealed that Stephen had an annual
income slightly in excess of $100,000, and Glenda's annual
income was less than $10,000. Even with the payment by Stephen
to Glenda of $25,800 per year in alimony, there remained a
significant gulf between the parties' incomes that does, as the
judge held, favor a forum closer to Glenda's home.
The fifth factor requires consideration of "any agreement
of the parties as to which state should assume jurisdiction."
N.J.S.A. 2A:34-71(b)(5). There is no question the parties
unambiguously agreed that New Jersey would remain the exclusive
jurisdiction for the resolution of their disputes. Indeed, the
PSA expresses that Stephen surrendered his statutory right to
object to the removal of the children from the jurisdiction,
N.J.S.A. 9:2-2, in exchange for Glenda's agreement that New
Jersey would remain the forum for all their parenting-time
disputes until emancipation of the youngest child. The judge's
statement that the parties' agreement is not binding suggests he
gave it little weight.7 The judge was greatly mistaken in this
regard. The parties stipulated to the continuation of New
7 After recognizing the parties' unequivocal agreement in this regard, the judge concluded that "[u]nder the facts of this case the jurisdictional provisions of the [PSA] must yield to other more compelling concerns."
15 A-2083-12T1 Jersey as the forum for any disputes. Glenda received valuable
consideration in obtaining Stephen's consent to her removal of
the children from New Jersey; she gained certainty and the
elimination of the possibility of Stephen's opposition to
removal and the subsequent litigation – in New Jersey – that
would have likely followed.8 The judge erred in giving this
factor little or no weight.
As mentioned earlier, the sixth factor involves
consideration of "the nature and location of the evidence
required to resolve the pending litigation, including the
testimony of the child[ren]." N.J.S.A. 2A:34-71(b)(6). The
judge spent a good deal of his opinion expressing a concern
about Canadian evidence being inaccessible to a New Jersey
court. What has been overlooked, however, is that the current
dispute mainly concerns the pursuit of an alternative to the
PSA's declaration of Stephen's right to visitation at times in
Canada.
Although Stephen is entitled to considerable visitation in
New Jersey in the summer and at other times, subparagraphs (h)
8 Litigation of such questions are frequently protracted and often present "difficult and often heart-wrenching decisions." Morgan v. Morgan, 205 N.J. 50, 54 (2011); see also Baures v. Lewis, 167 N.J. 91, 97 (2001) (recognizing there is "rarely an easy answer or even an entirely satisfactory one" when a parent objects to a child's removal from the jurisdiction).
16 A-2083-12T1 and (i) of the PSA's sixteenth paragraph provide Stephen with
additional time with the children on Father's Day weekend, the
weekend of Stephen's birthday, and the children's birthdays in
Canada. And subparagraph (j) afforded Stephen the right to
overnight parenting time with the children in Canada one weekend
"in each of the months during which he would otherwise would not
see them." It appears that the simple question to be decided is
how can the parenting time precluded by Stephen's ostensible
inability to enter Canada be equitably replaced. Stephen has
suggested that this parenting time occur in Courtland, New York,
a town approximately halfway between the parties' residences.
Logic suggests that the parties' intent, when they designated
these specific parenting times would take place in Canada, would
be better redressed by choosing a location in the United States
far closer to Canada. In any event, it is not clear to us what
Canadian "evidence" would be required to iron out this dispute;
indeed, this type of dispute may not even require an evidentiary
hearing.
And if we are mistaken, and there is evidence that requires
consideration at a plenary hearing, consideration of this factor
also requires an examination of the New Jersey evidence a
Canadian court would require and the difficulties a Canadian
court might encounter when the parties seek production of that
17 A-2083-12T1 evidence. In addition, the judge who ultimately considers the
merits of the parties' dispute might be interested in hearing
whatever Stephen's probation officer might have to contribute.
As a result, consideration of the sixth factor requires an
understanding of the difficulties a Canadian court might
encounter in obtaining a New Jersey probation officer's
testimony as opposed to its ready availability in New Jersey.
Rather than constitute what seems to have been the overriding
factor in the judge's decision to decline jurisdiction, this
availability-of-evidence factor is at best neutral – both fora
would likely encounter similar difficulties in obtaining
evidence located in the other – but is likely more favorable to
the retention of jurisdiction in New Jersey because the children
spent their entire lives here until they moved to Canada
approximately one month before the parenting-time issue arose.
The seventh factor requires consideration of "the ability
of the court of each state to decide the issue expeditiously and
the procedures necessary to present the evidence." N.J.S.A.
2A:34-71(b)(7). The trial judge observed the Canadian courts,
like our own, recognize that custody and parenting-time issues
are to be decided expeditiously. As a result, such a limited
examination of this factor suggests it does not weigh in favor
of either position. When viewed more deeply, however, there are
18 A-2083-12T1 – as we have observed – further obstacles to a Canadian
adjudication of the parenting-time dispute. Stephen's attempts
to enter Canada will likely be the subject of an application
process and perhaps additional litigation if he is denied
relief; there is no information in the record to suggest whether
he possesses a likelihood of success or how long such a
determination may take. On the other hand, we assume the matter
could be resolved in our courts expeditiously because there is
no impediment to Glenda and the children entering this country
for purposes of such a hearing – assuming an evidentiary hearing
is even necessary. Although the record is rather barren on the
point, experience suggests that, subject to Glenda's
convenience, the matter could be disposed of quickly in our
courts.
The eighth and final factor requires consideration of "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)(8). The
record reveals that no Canadian court is familiar with this
case. On the other hand, the trial judge presided over and made
findings of fact in the domestic violence matter, and he later
presided over the uncontested divorce proceedings; accordingly,
our courts are quite familiar with the parties and their past
19 A-2083-12T1 troubles, whereas the Canadian courts know nothing of these
parties.
As can be seen, the second, fifth and eighth factors all
favor retention of jurisdiction here in New Jersey. Others,
such as the first, third, sixth and seventh are arguably in
equipoise, and only the fourth favors a Canadian forum.
Accordingly, even if we were to ignore the fact that a Canadian
forum is not an appropriate forum because it has not been shown
that Stephen can enter Canada, a quantitative consideration of
the statutory factors strongly tilt in favor of New Jersey's
retention of jurisdiction. Even so, we recognize that simple
arithmetic is not what the legislation expects of our courts. A
more sophisticated approach requires a consideration – based on
the parties' particular circumstances – as to the weight to be
given to those in favor of and against a declination of
jurisdiction. Clearly those factors that suggest the retention
of jurisdiction – particularly the fifth factor (the existence
of an agreement on the matter) – should be given greater weight
than many of the others in this case. The parties, both then
represented by counsel, executed a PSA – a mere four months
before problems arose – that specifically stipulated to New
Jersey's retention of jurisdiction. Those statutory factors
that may suggest New Jersey's declination of jurisdiction or are
20 A-2083-12T1 in equipoise represent only the foreseeable consequences of the
parties' free and voluntary agreement and should not have more
weight than the agreement itself. When viewed in that context,
there are very little, if any, arguable reasons for New Jersey's
declination of jurisdiction at this time.
D
For these reasons, we reverse the November 28, 2012 order
insofar as it memorializes the judge's decision to decline
jurisdiction. The parenting-time issues should be resolved in
the trial court as expeditiously as possible. Because of the
time that has elapsed since the order was entered, we exercise
original jurisdiction to order that any future visitation
pursuant to subparagraphs (h) through (j) of paragraph 16 of the
PSA occur in Niagara Falls, New York, or such other location on
which the parties may mutually agree. Stephen may not transport
the children more than thirty miles from that locale on those
occasions without Glenda's approval or court order. These
conditions shall remain in place until such time as the trial
court has an opportunity to hear from the parties on the
parenting time issues.
21 A-2083-12T1 III
The first seven points of Stephen's appellate brief relate
to the trial judge's jurisdictional ruling, which we have
reversed. Stephen also argues that the judge's disposition of
other issues was erroneous:
VIII. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S REQUEST TO SUSPEND ALIMONY AS SPECIFICALLY AGREED TO IN PARTIES['] [PSA] WITHOUT STAYING SAID ISSUE FOR FORTY-FIVE (45) DAYS AS WELL.
IX. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S REQUEST AS TO CLAIMING THE PARTIES' CHILDREN WITHOUT PROVIDING A REASONING FOR SAME OR STAYING SAID ISSUE FOR FORTY-FIVE (45) DAYS AS WELL.
X. THE TRIAL COURT ERRED IN PARAGRAPH 29 [OF THE NOVEMBER 28, 2012 ORDER] BY ALTERING PARTIES' [PSA] AND ACCELERATING PLAINTIFF'S PAYMENT DUE AND OWING FOR A JUDGMENT FROM 12 MONTHS TO 30 DAYS AND ISSUING A BENCH WARRANT WHILE FAILING TO PROVIDE ANY REASONS ON THE RECORD AS TO SAME.
XI. THE TRIAL COURT ERRED IN PARAGRAPH 25 [OF THE NOVEMBER 28, 2012 ORDER] IN DENYING LEGAL FEES, NOT STAYING THE ISSUE, AND NOT PROVIDING A REASONING OR APPLICATION OF THE RULE 5:3-5(c) AS THE PLAINTIFF FILED IN GOOD FAITH TO ENFORCE PARENTING TIME, WHEREAS THE DEFENDANT'S MOTION SEEKS TO AMEND PARTIES' AGREEMENT AND SUSPEND ALL PARENTING TIME IN BAD FAITH.
We find insufficient merit in Points VIII and IX to warrant
discussion in a written opinion, R. 2:11-3(e)(1)(E), adding only
the following. With regard to Point VIII, the suspension of
22 A-2083-12T1 alimony authorized by paragraph 5 of the PSA expressly applies
only when there is a "willful failure" by Glenda "to comply with
the child custody and parenting time provisions." The confusion
regarding parenting time around Labor Day of 2012 was a product
of the problem Stephen has in entering Canada and other
circumstances that do not remotely suggest Glenda's "willful
failure" to abide by the PSA's parenting-time provisions.
Stephen's Point IX has no merit because the PSA precisely spells
out how the parties will divide the tax exemptions in the
future, and Stephen has alluded to nothing to suggest that the
PSA ought to be modified.
For the same reason that the parties' PSA should be applied
and enforced absent some substantial change in circumstances, we
agree with the argument in Stephen's Point X that the trial
judge's acceleration of Stephen's reimbursement of counsel fees
incurred by Glenda in the domestic violence matter was mistaken
because that ruling was inconsistent with the terms of the PSA.
Glenda failed to demonstrate any colorable reason for modifying
that to which the parties had agreed a short time earlier – that
Stephen had one year from the entry of the divorce judgment to
pay her $3825 in counsel fees. We, thus, reverse paragraph 29
of the November 28, 2012 order.
23 A-2083-12T1 And, lastly, we vacate paragraph 25 of the November 28,
2012 order by which the trial judge denied either party an award
of counsel fees in connection with the motions that led to the
November 28, 2012 order. Whether or to what extent fees may be
awarded to either party should abide the trial judge's
disposition of the parenting-time dispute engendered by
Stephen's inability to enter Canada.
Affirmed in part; reversed in part; and vacated in part.
The matter is remanded to the trial court for further
proceedings consistent with this opinion. We do not retain
jurisdiction.
24 A-2083-12T1