OLENA YOUSHKO MORGUL VS. GENNADIY KRUGLOV (FM-02-0291-18, BERGEN COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-5807-17T1
OLENA YOUSHKO MORGUL,
Plaintiff-Respondent,
v.
GENNADIY KRUGLOV,
Defendant-Appellant.
____________________________
Submitted May 6, 2019 – Decided May 15, 2019
Before Judges Haas and Sumners.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-0291-18.
Laterra & Hodge, LLC, attorneys for appellant
(Matthew N. Tsocanos, of counsel and on the briefs).
Errico Law Group, LLC, attorneys for respondent
(Alexandra Errico, of counsel and on the brief).
PER CURIAM
Defendant appeals from the Family Part's March 16, 2018 order modifying
a child support order issued in the state of New York, and also requiring him to
pay arrears that were allegedly incurred pursuant to other, temporary orders
entered in that state. Defendant also challenges the court's July 27, 2018 order
denying his motion for reconsideration of the March 16 order.
On appeal, defendant contends that the court failed to consider and apply
the standards set forth in the Uniform Interstate Family Support Act (UIFSA or
the Act), N.J.S.A. 2A:4-30.124 to -30.201 before registering and modifying the
New York order in New Jersey, and should have conducted a plenary hearing to
resolve the sharply conflicting factual issues presented by the parties. We agree
with defendant's contentions. Because the court did not correctly apply UIFSA
in its consideration of this matter, we reverse the March 16 and July 27 orders,
and remand for further proceedings.
By way of background, "UIFSA is a model act adopted by the National
Conference of Commissioners on Uniform State Laws[,]" and then later by New
Jersey and every other state and territory in the United States. Marshak v.
Weser, 390 N.J. Super. 387, 390 (App. Div. 2007). The purpose of UIFSA is to
"advance[] 'unity and structure in each state's approach to the modification and
enforcement of child support orders.'" Lall v. Shivani, 448 N.J. Super. 38, 45
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(App. Div. 2016) (quoting Sharp v. Sharp, 336 N.J. Super. 492, 503 (App. Div.
2001)). "[UIFSA] resolves potential jurisdictional conflicts regarding the
enforcement of child support orders across state lines by designating one order
as the controlling child support order and provides for interstate jurisdiction t o
modify child support orders when parents and the children do not reside in the
same state." Ibid.Under UIFSA,
[c]ritical to the jurisdictional uniformity intended under
the Act's interstate system of modifying and enforcing
child support orders is identification of the controlling
child support order and the tribunal authorized to
exercise "controlling exclusive jurisdiction." N.J.S.A.
2A:4-30.133. In short, a court that enters an order
establishing child support retains continuing exclusive
jurisdiction to modify the order, and that court's orders
remain the controlling child support orders for purposes
of enforcement, until continuing exclusive jurisdiction
is conferred on another state's tribunal by operation of
the Act.
[Id. at 46.]
In many cases, the first step in a UIFSA matter is for one party to "register"
an out-of-state child support order in the current home state of the child for
enforcement purposes. N.J.S.A. 2A:4-30.168. A party begins the registration
process in New Jersey by filing a request to register the out-of-state order with
our Family Part. N.J.S.A. 2A:4-30.169. Registration is effective upon filing the
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order in New Jersey. N.J.S.A. 2A:4-30.170. However, "the law of the issuing
state[,]" rather than the law of New Jersey, continues to govern "the nature,
extent, amount, and duration of current payments under a registered support
order" so long as the out-of-state order remains the controlling order. N.J.S.A.
2A:4-30.171(a)(1) and (d). In addition, the other state's law concerning "the
computation and payment of arrearages" also continues to control the dispute.
N.J.S.A. 2A:4-30.171(a)(2).
After the order is registered, the Family Part is required to send "notice of
registration of [the] order" to the "non[-]registering party." N.J.S.A. 2A:4-
30.172(a). That party may then challenge the registration by requesting a
hearing for this purpose. N.J.S.A. 2A:4-30.172(a), -30.173.
Notably, while the Family Part "shall recognize and enforce" the
registered order, the court "may not modify[] a registered support order if the
issuing tribunal had jurisdiction[,]" unless permitted to do so under other
provisions of the Act. N.J.S.A. 2A:4-30.170(c) (emphasis added). With regard
to modification or enforcement of another state's support order, nothing in
UIFSA grants New Jersey automatic jurisdiction over the non-registering party.
Instead, the registering party must, among other things not relevant to the
present controversy, demonstrate that the other party has been personally served
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in New Jersey with a summons or notice of the proposed action; submitted to
New Jersey's jurisdiction by consent; resides with the child in this state; or that
"there is any other basis consistent with the constitutions of this State and the
United States for the exercise of personal jurisdiction." N.J.S.A. 2A:4-
30.129(a).
Before modifying any child support order, the New Jersey Family Part
must also determine what order is the "controlling" one. Usually, the state that
issues the order "has and shall exercise controlling, exclusive jurisdiction to
modify its child support order if the order is the controlling order and . . . at the
time of the filing of" the modification request, that state "is the residence of the
obligor, the individual obligee, or the child for whose benefit the support order
is issued[.]" N.J.S.A. 2A:4-30.133(a)(1). Thus, so long as one of the parties, or
their child, continues to live in the issuing state, that state, rather than New
Jersey, is the only jurisdiction that may modify the order.
There are exceptions to this rule. For example, New Jersey may modify
the order if neither party or the child lives in the issuing state; the party seeking
the modification is not a resident of New Jersey; and the party opposing the
modification "is subject to the personal jurisdiction" of the Family Part.
N.J.S.A. 2A:4-30.178(a)(1). Additionally, New Jersey may modify the order if
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all parties consent in writing, allowing the Family Part to exercise jurisdiction.
N.J.S.A. 2A:4-30.178(a)(2).
If New Jersey is able to assume jurisdiction to modify an out-of-state
support order, the Family Part's order will become the controlling order, and
New Jersey will then assume continuing, exclusive jurisdiction to address the
parties' child support disputes from the prior state. N.J.S.A. 2A:4-30.178(e).
Unfortunately, the Family Part in this case did not address any of these
UIFSA provisions in determining to modify a child support order entered in the
state of New York. We will now summarize the sequence of events that
occurred, together with the instances in which the court mistakenly processed
the matter by failing to apply UIFSA after plaintiff and the parties' child moved
to New Jersey.
The parties were married in New York in April 2004. They have one
child, born in December 2006.
In 2008, the parties separated. That same year, they entered into a
Stipulation of Settlement, which was incorporated into an October 17, 2008
Final Judgment of Divorce (FJOD) in New York. Under the FJOD, the parties
agreed to share equal parenting time with their child. As a result, they further
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agreed that "neither party will pay support for the [c]hild, but rather both parties
will share the expenses as contemplated by the prior Custody Order."
In spite of this agreement, however, the parties engaged in litigation
concerning child support in the New York courts for six of the next nine years.
On August 9, 2011, plaintiff filed a petition to modify child support in Kings
County Family Court, New York (the New York court). On January 19, 2012,
the New York court issued a temporary support order, requiring defendant to
pay plaintiff $258 in biweekly child support pending a final hearing. Plaint iff
later failed to appear at a hearing, and the New York court dismissed her petition
for child support without prejudice on August 17, 2012, and reinstated the prior
provision of the FJOD stating that neither party had a child support obligation.
About a month later, plaintiff filed a petition with the New York court to
reinstate her request for child support. This petition was granted on October 2,
2012, and defendant was directed to pay plaintiff $258 in biweekly child
support, again pending a final hearing.
On August 22, 2013, the New York court reduced defendant's biweekly
child support obligation to $157. However, plaintiff's petition was dismissed
without prejudice on August 8, 2016, after she again failed to appear at a
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hearing. The dismissal order also vacated defendant's support obligation
retroactive to August 21, 2013.
By this time, plaintiff and the parties' child had moved to New Jersey. 1 In
September 2016, plaintiff filed another request with the New York court to
reinstate her child support petition, which that court granted in a July 13, 2017
order. Unlike the prior orders, this one did not require defendant to pay any
child support and, instead, directed the parties to exchange financial
information. By filing this petition in New York, plaintiff complied with
UIFSA, because the parties' FJOD remained the controlling order and defendant
continued to live in that state.
On July 6, 2017, however, plaintiff filed a complaint to register the FJOD
in the New Jersey Family Part under N.J.S.A. 2A:4-30.169. In the parties'
subsequent litigation in this state, defendant alleged that he was never served
with any notice concerning this registration and, therefore, was not able to file
a timely request for a hearing to contest it. No proof of service was provided by
either the Family Part or plaintiff indicating that defendant received notice of
the registration as required by N.J.S.A. 2A:4-30.172(a). In its subsequent
1
This move, which was accomplished without seeking approval from the New
York court, occurred on April 29, 2016.
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decisions at issue in this appeal, the Family Part did not conduct a plenary
hearing to address these factual issues surrounding the registration.
In addition, plaintiff's attorney incorrectly certified in the July 2017
complaint "that the matter in controversy [was] not the subject of any other
action pending in any court[,] . . . [and] that no other action or arbitration
proceeding is contemplated[.]" At that time, however, there was a child support
matter pending in the New York court, which may have provided grounds to
prevent the matter from being registered in New Jersey. However, the Family
Part also did not directly address this issue in its subsequent decisions.
The Family Part registered the New York FJOD in New Jersey on August
18, 2017. That same month, plaintiff's New York attorney asked the New York
court to withdraw her petition for child support. On August 16, 2017, the New
York court dismissed plaintiff's petition. At defendant's request, the New York
court would make clear in a June 14, 2018 amended order of dismissal that: (1)
the temporary order of support was vacated retroactive to August 9, 2011; (2)
there were no arrears; (3) the dismissal was without prejudice; and (4) the
petition had been dismissed "due to failure to prosecute[.]"
Defendant states that he continued to live in New York. Even though
UIFSA required that any motion to modify either the FJOD or the August 16,
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2017 order of the New York court dismissing plaintiff's petition without
prejudice, both of which provided that defendant was not obligated to pay child
support, had to be filed with the New York court, plaintiff filed an application
for child support in the Family Part on January 22, 2018. Contrary to UIFSA,
the court did not determine which of the New York orders was the controlling
order and, indeed, did not engage in any meaningful review of the Act.
Defendant opposed the application, and argued that the court did not have
jurisdiction because the controlling orders had already been issued by the New
York court, and that he still lived in that state. In rejecting this contention, the
Family Part did not determine whether it had personal jurisdiction over
defendant as required by N.J.S.A. 2A:4-30.129(a). Instead, the court simply
ruled that because the FJOD had been registered in New Jersey, this
automatically gave the Family Part jurisdiction over defendant. As noted in our
earlier discussion of UIFSA, however, nothing in the Act supports this
conclusion.
In its subsequent ruling denying defendant's motion for reconsideration,
the court stated that defendant likely lived in New Jersey, rather than New York,
apparently due to an allegation to this effect pressed by plaintiff. Thus, the court
stated it was comfortable with its prior determination that it had personal
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jurisdiction over defendant. However, plaintiff presented no documentation or
other evidence supporting her contention, and the court did not conduct a
plenary hearing to resolve the contested issue.
With her papers, plaintiff submitted an account statement from the New
York court stating that defendant had support arrears of $12,199.74 as of August
31, 2016. In response, defendant provided the Family Part with an updated
January 29, 2018 statement showing that he had paid $14,191.26 in child support
between February 2012 and November 2016, and had no arrears whatsoever.
The trial court did not conduct a plenary hearing to resolve the parties'
conflicting factual assertions and, instead, found that defendant owed
$12,199.74 in arrears as alleged by plaintiff.
The court also stated that it was imposing these arrears because defendant
had not paid child support since 2016. However, this was easily explained by
the fact that the New York court orders had terminated defendant's child support
obligation in August 2016.
The Family Part did not take any testimony concerning the parties'
respective incomes. Instead, it accepted plaintiff's representation that although
she had recently started a new job as a nurse, she was temporarily disabled due
to the recent birth of her fourth child. Defendant also asserted that he was no
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longer earning at the same level as he had when the New York court first set
support in 2011. The court did not allow defendant to provide testimony
concerning this contention.
On the basis of this sparse record, and without applying UIFSA or
conducting a plenary hearing, the Family Part issued a support order on March
16, 2018. This order required defendant to pay plaintiff $118 a week in child
support, together with $50 per week toward his arrears of $12,199.74. 2
On July 27, 2018, the court denied defendant's motion for reconsideration.
In its written statement of reasons, the Family Part did briefly mention UIFSA
by quoting one of its provisions, N.J.S.A. 2A:4-30.135, without commenting
further on it. However, this section of the Act clearly states that if "only one
tribunal has issued a child support order, the order of that tribunal controls and
shall be recognized." N.J.S.A. 2A:4-30.135(a). If the Family Part had applied
this provision, it likely would have determined that one of the New York orders
controlled.
In sum, the Family Part failed to assess the parties' interstate child support
dispute under UIFSA, which led to the mistakes outlined above. For example,
2
Thus, defendant's total obligation was $168 per week, effective January 29,
2018.
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the court may have erred by registering the New York FJOD because the parties
were then litigating the issue in New York, and it did not consider defendant's
argument that he was deprived of his ability to contest the registration of that
decree because he was never served with notice of the registration.
The Family Part also misconstrued the import of its decision to register
the New York FJOD in two significant ways. First, it stated that the registration
automatically made defendant subject to New Jersey's jurisdiction when UIFSA
essentially states the opposite. Just as importantly, the court also ruled that once
the FJOD was registered in this state, a New Jersey court was free to both
enforce and modify it. Again, UIFSA makes clear that an out-of-state order may
only be modified if the Act's requirements are met.
Although the court acknowledged that New York had issued a series of
orders since it relied upon them, in part, in setting defendant's arrearages, it
never determined which of the New York orders was the controlling one.
Because of this, it did not give deference to any of the New York orders, and
did not direct plaintiff to pursue her request for modification in the New York
court, as she had been doing at the time she registered the FJOD in this state.
The Family Part also did not apply New York law in determining support, and
did not even consider whether it was required to do so under 2A:4-30.171.
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On appeal, we owe no special deference to a trial court's legal conclusions.
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
The interpretation and application of a complex statutory scheme, such as
UIFSA, is plainly a question of law for the trial court, subject to de novo review
on appeal. Ibid. For the reasons set forth above, the Family Part was clearly
required to consider and apply the Act to the child support dispute before it.
Because it did not, we are constrained to reverse.
There were also a number of disputed material issues of fact that the
Family Part resolved without the benefit of a plenary hearing. Among other
things, the parties did not agree on whether defendant received notification of
the registration of the FJOD; their respective incomes; or whether defendant
owed any arrears in New York. In their appellate briefs, they now contest each
other's interpretations of the New York orders.
We normally give substantial deference to the Family Part's findings of
fact because of that court's special expertise in family matters. Cesare v. Cesare,
154 N.J. 394, 411-12 (1998). However, we will "uphold the factual findings
undergirding the trial court's decision [only] if they are supported by adequate,
substantial and credible evidence on the record." MacKinnon v. MacKinnon,
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191 N.J. 240, 254 (2007) (quoting N.J. Div. of Youth & Family Servs. v. M.M.,
189 N.J. 261, 279 (2007)).
For the reasons set forth above, we are unable to give this deference here
because the record presented on appeal is insufficient to support the court's
factual determinations. In addition, because there are genuine issues of material
fact that bear on the critical questions presented in this matter, the Family Part
should have conducted a plenary hearing to resolve them. Lepis v. Lepis, 83
N.J. 139, 159 (1980).
Therefore, we reverse the Family Part's March 16, and July 27, 2018
orders, and remand for a plenary hearing so that the issues raised under UIFSA
may be addressed for the first time on a complete record. The court shall
conduct a case management conference within thirty days to plan the logistics
of the plenary hearing and the possible exchange of discovery, including updated
Case Information Statements for the court's review pursuant to Rule 5:5-2.
The remand proceedings should be completed within 120 days, unless
reasonably extended by the trial court with the consent of all counsel. Pending
the completion of the remand, and subject to a possible retroactive offset or
refund thereafter, defendant shall continue to pay plaintiff $118 in child support
per week. We also suspend the highly disputed $50 weekly arrears component
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of the Family Part's prior orders until the conclusion of the remand, again subject
to retroactive offset or refund.
Reversed and remanded. We do not retain jurisdiction.
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