K.A.B. VS. M.P. (FD-07-1056-11, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-4153-18
K.A.B.,
Plaintiff-Appellant,
v.
M.P.,
Defendant-Respondent.
________________________
Submitted December 7, 2020 – Decided April 7, 2021
Before Judges Hoffman and Suter.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FD-07-1056-11.
K.A.B., appellant pro se.
M.P., respondent pro se.
PER CURIAM
Plaintiff K.A.B. appeals the April 18, 2019 order that denied his requests
for relief. We affirm the order for reasons expressed by the Family Part judge's
comprehensive, written opinion of the same date. 1
I.
Plaintiff and defendant have one child, K.P., who was born in New Jersey
in March 2010. Plaintiff was living in New Jersey at the time but later returned
to Arkansas. Several Family Part orders have been entered involving child
support and custody. This appeal is from the Family Part's April 18, 2019 order.
We glean the facts from the record provided to us. We relate background
information to provide context.
On August 24, 2010, plaintiff filed a complaint requesting sole legal and
physical custody of K.P., and for removal to Arkansas. He filed an order to
show cause shortly after seeking emergent relief. After a hearing on September
13, 2010, the Family Part judge denied plaintiff's order to show cause, ordered
joint legal custody to the parents and granted plaintiff open and liberal visitation.
1
Plaintiff included the order and written opinion in a "confidential appendix."
He also filed a "confidential reply appendix" with his reply brief. Both are
stamped in red "SEALED." We are not aware of any order sealing the appellate
record. Out of an abundance of caution, we refer to the parties by their initials
to maintain confidentiality, if it is necessary to do so. This is not precedential
for this or any other appeals.
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2
The case returned to court the next month. Custody continued as
previously ordered. Mediation was ordered because plaintiff was moving to
Arkansas.
In October 2010, the parties entered into a Consent Order where they
agreed to joint legal custody, defendant was designated as the parent of primary
residence (PPR) and plaintiff was accorded parenting time. A parenting time
schedule was attached to the order. The parties agreed to return for additional
mediation, but the subsequent mediation was not successful. The court ordered
the prior orders to remain in effect.
In March 2011, plaintiff's motion for removal was denied without
prejudice. The court again ordered joint legal custody with defendant designated
as the PPR. The order addressed other issues such as medical and educational
records, doctor's appointments, and parenting time. Plaintiff was to provide
income information in ten days to calculate child support. If he did not,
defendant could file a motion to request the imputation of income.
On June 7, 2011, plaintiff's motions for reconsideration were denied (the
June 7, 2011 child support order). The court again ordered that the parties have
joint legal custody and that defendant is the PPR. Plaintiff was ordered to pay
$150 per week in child support.
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Plaintiff filed a number of motions. These were heard by a different
Family Part judge, who issued an order and a fifty-five-page opinion on March
8, 2012 (the March 8, 2012 order).2 Plaintiff does not indicate he appealed this
order.
A few months later, defendant filed an order to show cause. By order
dated October 1, 2012, the Family Part judge found plaintiff was in violation of
litigant's rights for not returning the child to New Jersey as ordered (the October
1, 2012 suspension order). The order "suspended indefinitely" plaintiff's
parenting time with the child until further court order. Plaintiff was to submit
to a psychological evaluation in New Jersey by a psychologist/psychiatrist
appointed by the court. The court denied without prejudice defendant's request
for sole legal and residential custody at this time.
In June 2018, plaintiff filed a notice of removal to the bankruptcy court in
the Eastern District of Arkansas where an action was pending. By September
2018, plaintiff sought an administrative review because he had over $28,000 in
child support arrears and faced a federal tax offset. The Bankruptcy Court
remanded the case to the state court in October 2018, dismissing the federal
action without prejudice.
2
The order and opinion are not included in the appendix by the parties.
A-4153-18
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Procedurally relevant to this appeal, plaintiff filed a motion to terminate
child support in November 2018. He argues that the June 7, 2011 child support
order altered the parties' 2010 Consent Order because that order did not provide
for child support. He alleges the October 1, 2012 suspension order was entered
ex parte and indefinitely suspended or terminated his parental rights. He argues
he was not afforded a plenary hearing. Plaintiff argues the June 7, 2011 child
support order was entered without consent and violated federal and state
regulations. Plaintiff received notice about a passport denial based on child
support arrears. Plaintiff requested the case be designated as complex under
Rule 5:4-2(j).
A hearing was held on February 19, 2019, with the court reserving
decision. In the Family Part judge's written decision of April 17, 2019 (the April
2019 decision), he noted that plaintiff's motion "concerns child support and
custody issues" and that these issues have been "previously raised and decided,
sometimes on numerous prior occasions by any of the six preceding judges
. . . ." Plaintiff's motions sought to vacate the June 7, 2011 child support order
and the October 1, 2012 suspension order, alleging that due process was violated
and that a plenary hearing should have been held. The Family Part judge noted
the last series of motions were addressed in 2016. Neither party included any
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of the 2016 orders or decisions in the appendices they have filed with their
appellate briefs.
The Family Part judge found the issues plaintiff was raising were
"previously raised and decided" by another judge in her March 8, 2012 order,
which was supported by a fifty-five-page opinion. The Family Part judge quoted
from the 2012 fifty-five page opinion that plaintiff "just re-argues and reiterates
the same allegations and assertion[s] that he has . . . filed with the court over the
last eighteen months . . . ." Nonetheless the Family Part judge noted the March
2012 opinion addressed the issues that were raised.
The Family Part judge agreed with the March 8, 2012 order and opinion
that New Jersey's courts had personal jurisdiction over plaintiff. Specifically,
plaintiff availed himself of New Jersey's jurisdiction when he filed the initial
complaint on August 24, 2010. The court enumerated other reasons that New
Jersey had jurisdiction.
The Family Part judge found this case involved an exercise of "specific"
jurisdiction because plaintiff's claim under the Uniform Interstate Family
Support Act (UIFSA), N.J.S.A. 2A:4-30.124 to -30.201, related to his activities
while he was here in New Jersey. He availed himself of the courts in New Jersey
through multiple motions. He was here physically. He knew defendant was a
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New Jersey resident. The Family Part judge found these to be "substantial
contacts with New Jersey" and that plaintiff should have anticipated its
jurisdiction over him "to respond to a claim for support for a child born and
cared for by him in New Jersey."
UIFSA permits the exercise of personal jurisdiction over a non-resident if
certain factors are met. See N.J.S.A. 2A:4-30.129(a). The Family Part judge
found that the March 8, 2012 order addressed this. Plaintiff acknowledged when
he was before the court in February 2011, that he was living in Montclair. He
discussed his income in 2010 and that he and defendant lived together in New
Jersey for a year. There was mention about the tax deduction for the child.
The Family Part judge found there were other reasons for jurisdiction. No
one disputed the child was born in New Jersey. Plaintiff acknowledged to the
Family Part judge that some of the time he was seeing defendant was in New
Jersey before the child was conceived. The Family Part judge found plaintiff's
testimony not credible when he asserted he was residing in New York because
that was not what he represented to the court in February 2011.
The Family Part judge agreed with the March 8, 2012 order and also
independently concluded that New Jersey's courts had personal jurisdiction over
plaintiff "whether it is because plaintiff was living in New Jersey when [the]
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proceedings commenced (some of which were commenced by him) or by the
long arm statutory provisions of UIFSA." The court found
plaintiff was not a New Jersey domiciliary originally,
but moved to New Jersey, stayed with the plaintiff and
child during both the prenatal period and after the
child's birth, remained in New Jersey for a substantial
period of time even after the parties separated, filed
motions for custody, visitation and removal, responded
to a cross-motion filed on January 11, 2011 while he
was still in New Jersey (thus the basis for [the March 8,
2012 judge's] conclusion that plaintiff subjected
himself to the court's jurisdiction), and has filed
subsequent motions in New Jersey courts at various
times seeking relief.
The Family Part judge noted plaintiff left New Jersey shortly after his
motion for removal was denied in March 2011. The Family Part judge found
the exercise of jurisdiction on these facts did not deprive plaintiff of due process.
The Family Part judge found the March 8, 2012 order disposed of the
"original custody disputes." The court noted that plaintiff's parental rights were
suspended not terminated, and that his obligation to pay child support continued.
The October 1, 2012 order that suspended plaintiff's parenting time was
conditioned on plaintiff participating in a psychological evaluation. The Family
Part judge denied without prejudice plaintiff's motion to invalidate the
suspension order because he did not complete a psychological evaluation. The
Family Part judge did not restrict the situs of the evaluation to New Jersey,
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concluding plaintiff could file another motion "once he has obtained a
psychological evaluation regardless of where it is obtained." The Family Part
judge denied plaintiff's motions.
On appeal, plaintiff raises these arguments.
I. THE TRIAL COURT ERRED IN DENYING
PLAINTIFF CASE REASSIGNMENT TO
COMPLEX TRACK BECAUSE DECADE-
LONG CASE IS AN EXCEPTIONAL ONE
THAT CANNOT BE JUSTLY AND FAIRLY
HEARD AS A SUMMARY MATTER.
II. THE TRIAL COURT ERRED IN DENYING
PLAINTIFF VACATION OF
(1) COURT ORDER ESTABLISHING
CHILD SUPPORT;
(2) ALL SUBSEQUENT COURT ORDERS
MODIFYING CHILD SUPPORT; AND
(3) ALL COURT ORDERS MODIFYING
ORIGINAL CUSTODY AGREEMENT
ENTERED INTO MUTUALLY
BETWEEN PLAINTIFF AND
DEFENDANT WITHOUT NOTICE TO,
AND CONSENT OF, BOTH PARTIES
AND WITHOUT CONDUCTING A
PLENARY HEARING, THEREBY
DEPRIVING PLAINTIFF OF DUE
PROCESS AND EQUAL PROTECTION,
THUSLY CREATING AND
PERPETUATING, HARMFUL
STRUCTURAL ERRORS THAT HAVE
CONTINUED TO PRODUCE UNJUST
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RESULTS WITHOUT SUFFICIENT
FINDINGS THROUGHOUT THE
PENDENCY OF THIS DECADE-LONG
CASE.
III. THE TRIAL COURT ERRED IN DENYING
REVIEW OF NJOCSS’S REFUSAL TO
PROVIDE PLAINTIFF WITH A RECENTLY
REQUESTED ADMINISTRATIVE HEARING
REGARDING TAX OFFSET AND PASSPORT
REVOCATION, AS WELL AS A MULTITUDE
OF PREVIOUSLY REQUESTED
ADMINISTRATIVE HEARINGS OVER THE
LAST NINE YEARS, THEREBY DEPRIVING
PLAINTIFF OF DUE PROCESS AND EQUAL
PROTECTION, THUSLY PERPETUATING,
HARMFUL STRUCTURAL ERRORS THAT
HAVE CONTINUED TO PRODUCE UNJUST
RESULTS WITHOUT SUFFICIENT
FINDINGS THROUGHOUT THE PENDENCY
OF THIS DECADE-LONG CASE.
II.
We accord "great deference to discretionary decisions of Family Part
judges," Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012)
(citations omitted), in recognition of the "family courts' special jurisdiction and
expertise in family matters . . . ." N.J. Div. of Youth & Family Servs. v. M.C.
III, 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413
(1998)). However, "[a] trial court's interpretation of the law and the legal
consequences that flow from established facts are not entitled to any special
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deference." Hitesman v. Bridgeway, Inc., 218 N.J. 8, 26 (2014) (quoting
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378
(1995)).
We affirm the Family Part order dated April 18, 2019, substantially for
the reasons set forth in the Family Part judge's written opinion dated April 17,
2019. We add the following brief comments.
A non-dissolution case is "presumed to be summary and non-complex
. . . ." R. 5:5-7(c). A Family Part judge has the discretion to place a case on the
complex track. Ibid. Complex cases are "exceptional cases that cannot be heard
in a summary manner." Ibid. These are cases where "discovery, expert
evaluations, extended trial time or another material complexity" requires th is
treatment. Ibid.Defendant argues the Family Part judge should have reassigned this case
to the complex track because of its "multi-layered nature." However, because
we have affirmed the order that denied these motions, we have no reason to
address the case track. If the need arises, the Family Part can address this based
on a new filing. We caution, however, that the issues raised here — child
support and custody — are the grist of the Family Part, and often are addressed
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in a summary manner. The complex track is for the exceptional cases. See R.
5:5-7(c).
Plaintiff argues the Family Part erred by not granting his requests to vacate
the June 7, 2011 child support order and all orders entered after that which
modify it. He claims the trial court did not comply with the requirements to
establish child support. Plaintiff argues the trial court erred by not vacating all
custody orders that modified the original consent order from October 2010
because they all were entered without due process and without a plenary hearing.
He is alleging that his parenting time was suspended without due process of law.
Plaintiff argues that his income tax refund was taken to pay for child support
arrears, his passport was revoked and his income garnished. Plaintiff asks that
we invoke and retain original jurisdiction and reverse all the court's orders that
dismissed his motions in 2018-2019. He asks for a host of other relief. 3
We find no error in the Family Part's conclusion that specific jurisdiction
is sufficient to satisfy due process. Specific jurisdiction is present when the
3
Plaintiff requests that we find there is an equal shared parenting arrangement
with plaintiff as the PPR; vacate the income withholding order, federal tax offset
and revocation of passport; refund all his child support monies; require
defendant to deliver the minor child to him and that he have compensatory
parenting time; require New Jersey to close both child support cases; hold that
the best interest report is controlling and remand to the trial court to require it
to change venue.
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"cause of action arises directly out of a defendant's contacts with the forum
state." Waste Mgmt., Inc. v. Admiral Ins. Co., 138 N.J. 106, 119 (1994) (citation
omitted). Whether "minimum contacts" are present for the purposes of specific
jurisdiction depends upon "the relationship among the [plaintiff], the forum, and
the litigation." Lebel v. Everglades Marina, Inc., 115 N.J. 317, 323 (1989)
(quoting Shaffer v. Heitner, 433 U.S. 186, 204 (1977)). The record amply
supports the Family Part findings of specific jurisdiction considering the
possibility plaintiff fathered the child in New Jersey and availed himself of our
courts regarding issues of custody and parenting time about the child.
We find no abuse of discretion in the Family Part's determination that New
Jersey has jurisdiction over this child support matter. UIFSA "advances '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 (App. Div. 2016)
(quoting Sharp v. Sharp, 336 N.J. Super. 492, 503 (App. Div. 2001)). It
"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 to modify child support
orders when parents and the children do not all reside in the same state." Ibid.N.J.S.A. 2A:4-30.129(a) addresses grounds for jurisdiction over a non-resident.
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The Family Part judge found the factors under N.J.S.A. 2A:4-30.129(a) were
satisfied. Our review of this record shows that the Family Part judge's findings
were amply supported.
We agree with the Family Part judge that this case does not involve a
termination of parental rights. None of the orders included in the appendix
provided for that. However, plaintiff's parenting time was suspended until he
submits to a psychological examination. The initial order provided that the
examination was to be conducted in New Jersey. However, the Family Part
judge modified that order, concluding that the examination could be conducted
in Arkansas. We find no abuse of discretion by the court in requiring this.
We agree with the Family Part judge that the issues raised in plaintiff's
motions, where he seeks to vacate the June 7, 2011 child support order and such
other orders, and the October 1, 2012 suspension order and other such orders,
have been raised and decided previously. Plaintiff does not actually challenge
this finding, e.g. that the issues raised were decided in other motions and then
were not appealed. Plaintiff seemingly wants the same orders reviewed again,
but on a record that is not only incomplete but that he purports is sealed. Our
review is hampered by an incomplete record on appeal. See R. 2:5-4(a). We
are constrained to affirm in light of this inadequacy. See Soc. Hill Condo. Ass'n,
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Inc. v. Soc. Hill Assoc., 347 N.J. Super. 163, 178 (App. Div. 2002) ("Without
the necessary documents . . . we have no alternative but to affirm.").
After carefully reviewing the record and the applicable legal principles,
we conclude that plaintiff's further arguments are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. We do not retain jurisdiction.
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