Genoe v. Genoe

• Decision Date: 11 October 1985
• Citation: 205 N.J.Super. 6,500 A.2d 3
• Parties: Violetta GENOE, Plaintiff-Respondent, v. Gordon A. GENOE, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 6

205 N.J.Super. 6

500 A.2d 3

Violetta GENOE, Plaintiff-Respondent, v. Gordon A. GENOE, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted Sept. 17, 1985.

Decided Oct. 11, 1985.

Gordon A. Genoe, pro se.

Skoloff & Wolfe, Newark, for plaintiff-respondent (Stephen P. Haller, Newark, on letter brief).

Before Judges DEIGHAN and STERN.

The opinion of the court was delivered by

STERN, J.S.C. (temporarily assigned)

This is an appeal from an order of the Chancery Division, Family Part, entered on February 25, 1985, (1) reinstating plaintiff's complaint seeking a modification of a custody order entered in the courts of Florida; (2) directing that "all issues relating to the health and welfare of the infant children of this marriage will now be heard by the Superior Court of New Jersey, Chancery Division, Family Part"; and (3) placing the matter on the active trial list. The determination by the Family Part that it had jurisdiction to proceed was not a final order and was not appealable as of right. The proceedings should have been conducted expeditiously. However, the parties briefed the appeal as if from a "final" order and the issue under review relates to jurisdiction. We grant leave to appeal nunc pro tunc to settle the subject of jurisdiction. R. 2:4-4(b)(2).

The parties were married and lived in Florida. They were divorced by judgment entered in that state on August 15, 1977. Plaintiff was awarded custody of the two minor children of the marriage, and defendant was granted "liberal visitation". Defendant was ordered to make support payments. Each party was "restrained from permanently removing any of the children from the jurisdiction of the Court without the permission of the other parent or of the Court."

Subsequently, the children moved with their mother to New Jersey. Defendant challenged the move in Florida and sought additional visitation. The Florida court conducted a hearing and concluded that "[t]he father's visitation was curtailed and because of the move to New Jersey by the mother with the minor children, the father's visitation has been totally cut off." The court also concluded that "in spite of the father's serious illness he is entitled and indeed must have established for himself and the well-being of his minor children, David and Dara, visitation privileges." Accordingly, by order entered on September 27, 1983, the Florida court directed, among other things, that the defendant be allowed visitation at certain designated times, including holidays, one month during the summer and whenever able to visit the children upon giving reasonable notice. Specifically, the court ordered that "the father shall be entitled to summer visitation from July 1 to 31st 1984." The September 27, 1983 order also included the following paragraphs:

This Court retains jurisdiction for the purposes of enforcing the provisions of this order allowing the father visitation privileges. There is no proof that any State but Florida is the homestate of the minor children.

Finally, this Court is aware that the mother is seeking the transfer of this case to the New Jersey Courts on the basis of her move to New Jersey. This court does not comment on that matter. It assumes that under the Uniform Child Jurisdiction Custody Act, that if the mother pursues a transfer to the New Jersey Courts, the New Jersey Courts will abide by the act, this Court's Orders and the Laws of the State of Florida, and will contact this Court.

After entry of the September 27, 1983 order, plaintiff moved in Florida for a modification and limitations of its provisions. On July 23, 1984, plaintiff's motion was denied except that the dates for summer visitation in 1984 were amended, with visitation to occur during the month of July in subsequent years unless modified by written agreement. The order of July 23, 1984 further provided that "Visitation shall otherwise be as stated in the Court Order of September 27, 1983."

On November 3, 1983 plaintiff filed a complaint in the Chancery Division, Bergen County, seeking modification of the Florida order of September 27, 1983. That complaint alleged jurisdiction by virtue of N.J.S.A. 2A:34-31(a)(1)-(3), asserting that New Jersey is the home state of the minor children; that the children have been residents of New Jersey for more than six months and that the "best interests of the children" requires that visitation be decided here because:

1. The plaintiff and the children have a significant connection to this state 2. There is available in New Jersey substantial evidence concerning the present and future care, protection, welfare and personal relationships of the children;

3. The children are physically present in New Jersey and it is necessary to protect them, on an emergent basis, from the operation and effect of an order of the Fifteenth Judicial Circuit Court of Palm Beach, Florida, and from the defendant herein.

The complaint also indicated that plaintiff and the children had lived in Fort Lee, Bergen County, New Jersey for two years after having left Florida. Plaintiff further alleged that defendant suffered from a chronic mental illness which posed a "threat ... to the safety of the children ..." and "... that defendant will seek to disappear with the children, if given that opportunity, or perhaps do them and himself mortal injury." The complaint, accompanied by a certification, also asserted that "there should be no visitation whatever until a single, independent court-appointed psychiatrist advised otherwise" and that any "[v]isitation thereafter should be at plaintiff's home and supervised." In essence, plaintiff asked the Chancery Division to exercise jurisdiction pursuant to N.J.S.A. 2A:34-28 et seq., to enter "such order or orders as to visitation with the children by defendant as are just and proper in the childrens' best interest," and to "modify the Florida Court's order of September 27, 1983 to eliminate all visitation by defendant outside plaintiff's presence and as is in the childrens' best interests."

On January 13, 1984, the Chancery Division (as of then the Family Part) rendered an opinion indicating that the judge spoke with his counterpart in Florida and further stating:

... it appears that the plaintiff mother seeks to use the New Jersey courts as an appellate vehicle to seek relief from the orders of the Florida court. Judge Wessel [of Florida] and I are in agreement that the standard criteria for the acceptance of jurisdiction in a custody/modification matter does not exist in the instant case. Mrs. Genoe has voluntarily participated in the Florida proceeding and she may not now move from court to court seeking results she finds more desireable.

Accordingly, the judge dismissed the complaint, citing E.E.B. v. D.A., 89 N.J. 595, 446 A.2d 871 (1982) and Bowden v. Bowden, 182 N.J.Super. 307, 440 A.2d 1160 (App.Div.1982). A confirming order was entered on February 6, 1984.

As noted, the litigation in Florida continued. Ultimately, defendant moved there for a change of custody, and plaintiff moved to dismiss the motion. After a hearing, the court entered an opinion and order on October 12, 1984 which stated, in part, as follows:

Following the decree ordering that Mrs. Genoe be awarded permanent custody of the two minor children of the parties, Mrs. Genoe, without consent of the Court, removed the children to the State of New Jersey. There followed a Court hearing sometime later, resulting in the Court allowing Mrs. Genoe to continue to reside in the State of New Jersey with the minor children. Mrs. Genoe and the children have resided in New Jersey since approximately 1982. Dr. Genoe has not left the State of Florida....

The Former Husband has now filed a Motion for Change of Custody of Minor Children/Motion For Change to Joint Custody/Motion to Compel Return of Children to Florida....

The Former Wife asserts that pursuant to § 61.1308 Florida Statutes, the Court lacks jurisdiction to rule upon the motion for change of custody and pursuant to § 61.1316 Florida Statutes, even if the Court does have jurisdiction, it should decline to exercise it in that the State of New Jersey is the more appropriate forum to rule upon the custody question.

The parties have each submitted numerous cases to the Court in support of their respective positions and having considered all of these matters, the Court finds that the question of custody should be resolved in the State of New Jersey because this Court either lacks jurisdiction or the forum is not convenient.

The Florida court considered cases decided in that state under sections of the Uniform Child Custody Jurisdiction Act equivalent to N.J.S.A. 2A:34-31 (jurisdiction) and N.J.S.A. 2A:34-35 (finding of inconvenient forum). The Florida court concluded that New Jersey was "the home state of the children" (and had been "within the six months before the commencement of the proceeding to modify the custody decree"), see N.J.S.A. 2A:34-30(e); 2A:34-31(a)(1), "and that the former husband has failed to demonstrate to the Court that it is in the best interest of the minor children" that the Florida court assume jurisdiction. The court concluded:

... the Court finds that it lacks jurisdiction over this cause. Further, the Court finds that even if it has jurisdiction, it should decline to exercise such jurisdiction pursuant to § 61.1316, Florida Statutes, in that New Jersey is the home state of the children, New Jersey has closer connections with the children and Mrs. Genoe and substantial evidence concerning the children's present and future care, protection, training, and personal relationships is more readily available in New Jersey than in the State of Florida.

After entry of the October 12, 1984 order in Florida, plaintiff moved before the Family Part for an order reinstating the New Jersey complaint and "for an order directing that all future and further applications by plaintiff or defendant...