                   NOT FOR PUBLICATION WITHOUT THE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
