                                 NOT FOR PUBLICATION WITHOUT THE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-2006-18T4

D.S.,

          Plaintiff-Appellant,

v.

Z.S.,

     Defendant-Respondent.
__________________________

                   Submitted July 23, 2019 – Decided September 25, 2019

                   Before Judges Ostrer and Geiger.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Passaic County,
                   Docket No. FD-16-1646-14.

                   D.S., appellant pro se.

                   Enrico Luciano, attorney for respondent.

PER CURIAM

          In this non-dissolution matter, plaintiff D.S. appeals from Family Part

orders modifying parenting time. She claims the trial court lacked subject matter
jurisdiction because she and the defendant-father Z.S., as well as their daughter,

then eight years old, had all resided in New York for over a year. She also

appeals from the award of fees. We reverse the modification order for lack of

subject matter jurisdiction, but affirm the award of fees.

      As we write primarily for the parties, who are familiar with the history of

their extensive litigation in Connecticut, New York, and New Jersey, we

highlight only essential facts. Since the child's birth, defendant has resided

continuously in New York. Plaintiff lived in Connecticut, New York, and,

beginning in 2012, New Jersey; and, again, in New York since 2017.1 The child

apparently resided with plaintiff until the Family Part (by a different judge), in

November 2014, awarded defendant sole legal and residential custody.

      The November 2014 order followed a plenary hearing. The court found

that plaintiff moved with the child from state to state without notice; thwarted

defendant's parenting time; made false allegations that defendant physically and

sexually abused the child; and coached the child to support those allegations.

The court also ordered therapy for the child; required plaintiff to enter therapy;



1
   Plaintiff informed the court by an April 2018 letter that she resided in
Westchester County. She certified that she relocated to New York the previous
year.


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                                        2
and ordered supervised parenting time. The child has lived in New York ever

since, and parenting time has occurred only there. Child support proceedings

also commenced in New Jersey during plaintiff's residence, but collection and

enforcement were transferred to New York in July 2018 based on plaintiff's

relocation.

      After she moved to New York in 2017, plaintiff attempted to shift the

custody litigation there. In a September 2018 order granting an adjournment

that plaintiff requested, the Family Part also declared that it retained exclusive

and continuous jurisdiction and entered interim relief, including suspending

plaintiff's parenting time.    Shortly thereafter, the New York Family Court

rejected plaintiff's request that it exercise jurisdiction, and declared that it would

give full faith and credit to the New Jersey orders.

      In orders entered on December 19, 2018 and March 6, 2019, the court

finally denied plaintiff's motion to dismiss or change venue, stating that New

Jersey would continue to exercise exclusive and continuous jurisdiction. The

court also granted defendant's application to enforce litigant's rights. The court

awarded him counsel fees and compelled plaintiff to reimburse defendant for

various child-related expenses. In response to defendant's application, the court

changed the site of supervised parenting time to locations in Manhattan and


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                                          3
Westchester, barred a particular person's continued service as a parenting

supervisor, and barred plaintiff from contacting the child outside the site and

time for supervised parenting.

      We agree that New Jersey lacks exclusive and continuous jurisdiction.

This case belongs in New York. The Uniform Child Custody Jurisdiction and

Enforcement Act, N.J.S.A. 2A:34-53 to -95, governs the jurisdictional question.

See Greely v. Greely, 194 N.J. 168, 178 (2008). The Act is intended to "ensure

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).

      We assume for purposes of our decision that New Jersey was the child's

"home state" in 2014, see N.J.S.A. 2A:34-54 (defining "home state" to mean

"the state in which a child lived with a parent . . . for at least six consecutive

months immediately before the commence of a child custody proceeding"), and

the Family Part had jurisdiction to make "an initial child custody determination"

on that basis. See N.J.S.A. 2A:34-65(a)(1) (stating that a New Jersey court has

jurisdiction to initially determine child custody if, among other grounds, it is the

child's home state when the proceeding commences). 2


2
  Apparently, numerous domestic violence orders in multiple states had been
entered before the 2014 custody order. However, we need not address whether


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                                         4
      However, the court was divested of "exclusive, continuing jurisdiction,"

and therefore, lacked the jurisdiction to modify its prior order unless it retained

"initial child custody jurisdiction." Putting aside temporary and emergency

matters, see N.J.S.A. 2A:34-68, and cases involving deployed parents, N.J.S.A.

9:2-12.1, a court that has made an initial child custody determination "has

exclusive, continuing jurisdiction over the determination" until either of two

eventualities come to pass. N.J.S.A. 2A:34-66(a). First, "neither the child, the

child and one parent, nor the child and a person acting as a parent have a

significant connection with this State and . . . substantial evidence is no longer

available in this State concerning the child’s care, protection, training, and

personal relationships." N.J.S.A. 2A:34-66(a)(1); see Griffith, 394 N.J. Super.

at 145 (jurisdiction is not lost under this provision "so long as there is either a

'significant connection' or 'substantial evidence'"). Second, "neither the child,

nor a parent, nor any person acting as a parent presently resides in this State."



those orders constituted initial custody orders. See Claudia G. Catalano,
Construction and Application of Uniform Child Custody Jurisdiction and
Enforcement Act's Exclusive, Continuing Jurisdiction Provision – Other Than
No Significant Connection/Substantial Evidence, 60 A.L.R.6th 193 §§ 4, 5
(2010) (discussing cases addressing whether domestic violence restraining order
constitutes an initial child custody determination).



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                                        5
N.J.S.A. 2A:34-66(a)(2). These are independent grounds. P.H. v. L.W., 456

N.J. Super. 630, 639 (App. Div. 2018). Thus, the absence of both parties and

the child suffices, as an initial matter, to divest the court of "exclusive,

continuing jurisdiction."   Therefore, the trial court erred in finding that it

retained exclusive, continuing jurisdiction because New Jersey had a significant

connection and substantial evidence – a finding we address below.

      Once a court is divested of "exclusive, continuing jurisdiction," it may

modify its prior determination "only if it has jurisdiction to make an initial

determination under section 13 of this act [N.J.S.A. 2A:34-65]."         N.J.S.A.

2A:34-66(b). As noted, we assume home state status provided such jurisdiction

in 2014. See N.J.S.A. 2A:34-65(a)(1). But, the child's home state had long

since shifted to New York. Thus, one must analyze the other grounds for initial

child custody jurisdiction under section 13, N.J.S.A. 2A:34-65.

      A New Jersey court may exercise initial jurisdiction if another state lacks

home state jurisdiction as defined in N.J.S.A. 2A:34-65(a)(1). N.J.S.A. 2A:34-

65(a)(2). However, New York satisfies the home state standard. Alternatively,

New Jersey has initial jurisdiction if a court of the child's current home state –

in this case, New York – has declined jurisdiction on the ground New Jersey is




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                                        6
a more appropriate forum under N.J.S.A. 2A:34-71 (inconvenient forum) or -72

(jurisdiction declined by reason of conduct), plus two other factors are present:

            (a) the child and the child’s parents, or the child and at
            least one parent or a person acting as a parent have a
            significant connection with this State other than mere
            physical presence; and

            (b) substantial evidence is available in this State
            concerning the child's care, protection, training and
            personal relationships;

            [N.J.S.A. 2A:34-65(a)(2).]

      We recognize that the New York court declined jurisdiction in October

2018. However, we reject defendant's argument that this provides a basis for

New Jersey's continued exercise of jurisdiction. There is no evidence that the

New York court declined jurisdiction because it found it was an inconvenient

forum or that plaintiff engaged in "unjustifiable conduct." See N.J.S.A. 2A:34-

72(a). With respect to the former, we note that virtually all the factors for

determining whether a forum is an inconvenient one would favor finding New

York a convenient forum, and New Jersey inconvenient. See N.J.S.A. 2A:34-

71(b)(1)-(8). The only factor that favors New Jersey is its familiarity with the

facts and issues. N.J.S.A. 2A:34-71(b)(8). Yet, just as a series of Family Part

judges have been assigned this matter and become familiar with it, so may a

judge of the New York Family Court.

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                                         7
      Nor does the record reflect that the New York court found the other two

factors present – significant connection of the child and at least one parent to

New Jersey, and the presence of substantial evidence here "concerning the

child's care, protection, training and personal relationship." We presume the

New York court declined jurisdiction out of deference to the Family Part's order

the previous month, finding – erroneously – that New Jersey retained "exclusive,

continuing jurisdiction."

      In any event, we discern no substantial basis for finding either factor.

Even if plaintiff retained some significant connection to New Jersey as a result

of her past residence here and her past association with treatment providers, that

does not constitute a significant connection of the child, who has resided in New

York since 2014. Nor does the record reflect the presence of "substantial

evidence concerning the child's care, protection, training and personal

relationship." The child's teachers, therapist, father, and friends are all in New

York. Her supervised parenting time with her mother has occurred in New York.

While there were certainly custody-related witnesses and evidence in New

Jersey in 2014, we are unpersuaded that such evidence retains substantial

relevance in modification proceedings in 2019.




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                                        8
      The remaining grounds likewise do not apply. It is not the case that "all

courts having jurisdiction under paragraph (1) or (2) [N.J.S.A. 2A:34 -65(a)(1)

or (2)] have declined to exercise jurisdiction on the ground that a court of this

State is the more appropriate forum to determine the custody of the child under

section 19 or 20 [N.J.S.A. 2A:34-71 or -72]." See N.J.S.A. 2A:34-65(a)(3).

Also, it is not true that "no state would have jurisdiction under paragraph (1),

(2) or (3) of [N.J.S.A. 2A:34-65(a)(1), (2), or (3)]."       See N.J.S.A. 2A:34-

65(a)(4). Rather, New York courts would have jurisdiction under paragraph (1)

or N.J.S.A. 2A:34-65(a)(1), as New York has been the child's home state.

      Defendant also contends, citing an unpublished opinion of our court, that

New Jersey may continue to exercise exclusive, continuing jurisdiction "when

legal proceedings or orders are still open and have neither been terminated or

stayed by the party challenging jurisdiction." Defendant points to an August 4,

2017 order, by a different judge, that denied without prejudice plaintiff's motion

to exercise unsupervised parenting time, which was supported by a letter from

her therapist. The court entered an order stating that the therapist "is to contact"

several other sources of information and "supplement his determination as to

whether or not [plaintiff] should have unsupervised parenting time . . . ."




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                                         9
Defendant asserts those contacts were not made, no supplemental report was

filed, and the 2017 motion is therefore still pending.

      We are unpersuaded. We need not address the principle of law that

defendant contends was articulated in the unpublished opinion. See R. 1:36-3.

We are satisfied that the 2017 motion is not still pending. Notably, the trial

court entered an order in September 2017 confirming that plaintiff's "application

to have unsupervised visitation with the minor child . . . is denied at this time."

It was up to plaintiff to renew her request for unsupervised parenting time with

the supplemental report outlined by the court. But, unless and until she did so,

the motion was denied.

      In sum, New Jersey no longer has exclusive, continuing jurisdiction. See

N.J.S.A. 2A:34-66(a). Nor does the Family Part have jurisdiction to modify its

previous orders. See N.J.S.A. 2A:34-66(b); N.J.S.A. 2A:34-65. The New York

court did not decline jurisdiction for the reasons specified in N.J.S.A. 2A:34 -

65(a)(2). We therefore reverse the trial court's modification of the custody and

parenting time order, and remand for dismissal of the custody matter. However,

we stay our order for thirty days, to permit plaintiff to commence proceedings

in New York.     Once that occurs, the stay shall be dissolved and the case

dismissed. See P.H. v. L.W., 456 N.J. Super. at 641 (staying dismissal for lack


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                                       10
of jurisdiction until commencement of proceedings in alternative forum); cf.

N.J.S.A. 2A:34-71(c) (providing for a conditional stay when New Jersey

determines it is an inconvenient forum and proceedings should commence in "a

more appropriate forum").

         We briefly address plaintiff's challenge to the award of attorney's fees.

Although the Family Part lacked jurisdiction to modify its prior orders, it

retained the power to enforce them absent the exercise of jurisdiction by New

York. See In re Marriage of Medill, 40 P.3d 1087, 1096 (Ore. 2002) (explaining

that the Uniform Child Custody Jurisdiction and Enforcement Act does not limit

the enforcement power of a court that lacks modification jurisdiction, noting a

"child custody proceeding" [see N.J.S.A. 2A:34-54] excludes enforcement).

         The court ordered plaintiff to pay $1,677.50 in counsel fees that were

previously awarded in 2016 and reaffirmed in 2017. As plaintiff did not appeal

from those orders, plaintiff's appeal from that aspect of the judge's order lacks

merit.      The court also ordered plaintiff to pay $3,297.50, representing

defendant's fees incurred in enforcing his litigant's rights, including enforcing

supervised parenting time as previously ordered. Plaintiff contends she lacks

the ability to pay. However, "[w]e will disturb a trial court's determination on

counsel fees only on the 'rarest occasion,' and then only because of clear abuse


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                                        11
of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008)

(quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). The judge addressed

the factors set forth in Rule 5:3-5, including plaintiff's income, and concluded

that the award of fees was appropriate. We discern no clear abuse of discretion.

      Affirmed in part; reversed in part.




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