Schuyler v. Ashcraft
| Decision Date | 13 August 1996 |
| Citation | 293 N.J.Super. 261,680 A.2d 765 |
| Parties | Samuel Ned SCHUYLER, Plaintiff-Appellant, v. Mary ASHCRAFT, f/k/a Mary Schuyler, Defendant-Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
Ronald M. Abramson, Hackensack, for appellant (Kleeblatt, Galler & Abramson, attorneys; Mr. Abramson, on the brief).
Harvey R. Meltzer, Livingston, for respondent.
James P. Yudes, Springfield, attorney and guardian ad litem for the minor children W.S. and B.S. (Charles F. Vuotto, Jr., on the brief).
Before Judges DREIER, KESTIN and CUFF.
The opinion of the court was delivered by
DREIER, P.J.A.D.
Plaintiff, Samuel Ned Schuyler, appeals from portions of a February 6, 1995 order of the Chancery Division, Family Part, determining that New Jersey has enforcement and modification jurisdiction over the custody and child support provisions of an August 28, 1991 Florida order, which modified the parties' May 7, 1990 Florida divorce judgment. The trial court found that New Jersey had "absolute jurisdiction over the [parties'] two minor children"; Florida had lost jurisdiction by the terms of the August 28, 1991 order, and a subsequent order retaining jurisdiction was "null and void as a result of its violation of the constitutional rights of defendant." Plaintiff also appeals from the court's award of counsel fees to defendant and to the children's guardian ad litem, and the reduction of plaintiff's child support arrearages to a judgment.
The Florida order modifying the divorce judgment permitted defendant, Mary Ashcraft (formerly Mary Schuyler), to move with the children outside of Florida, denied plaintiff's request for a change of custody, but granted plaintiff liberal visitation. It continued the prior arrangement that plaintiff was to pay $500 support per month through the Central Depository in Dade County, Florida, and ordered plaintiff to pay traveling expenses for visitation. As will be more definitively explained infra, with the Florida court's consent, defendant moved from Florida to California in 1991, after which she remarried and moved to New Jersey in early 1993. The children have lived in this State for the past three and a half years.
Defendant's New Jersey counsel filed the August 1991 Florida judgment with the Clerk of the Family Part under the provisions of the Uniform Child Custody and Jurisdiction Act (UCCJA) and sought its enforcement and later modification in New Jersey. Plaintiff contested the jurisdiction of the New Jersey court on the basis that Florida continued to be the children's "home state" and the sole state possessing jurisdiction over the custody matter, and he asserted that his repeated attempts to modify the judgment in Florida both prior to and following the New Jersey action deprived New Jersey of jurisdiction. Plaintiff also repeatedly rebuffed the New Jersey court's attempts to enforce the child support provisions of the order, correctly asserting that it had no jurisdiction to do so, as we will later explain.
We hold that the Family Part has jurisdiction over the custody issues, but that the questions of support remain subject to the orders of the Florida courts.
We will briefly summarize the facts and procedural history of this case, which are related in more detail in an attached Addendum 1 and at the appropriate points in our analysis. The parties were divorced in Florida in 1990 and they have two children born June 29, 1986 and March 24, 1989. During the year following the divorce, plaintiff and his family repeatedly used the Florida court system to harass defendant and attempt to force a change of custody, filing and refiling false sexual abuse charges and instituting an extraordinary number of legal proceedings. In August 1991, the Florida court granted defendant's emergency petition to leave the state with the children and relocate to California, but permitted plaintiff liberal visitation. The order, quoted at length infra, strongly admonished plaintiff and his family for their behavior and specifically refused plaintiff's request that Florida retain jurisdiction over the matter beyond six months, the period which, under the relevant federal and state statutes, would allow another state to establish custody jurisdiction.
During the six-month period in which Florida retained jurisdiction, plaintiff applied ex parte before different judges and was granted orders changing the wording of the August 28, 1991 order and retaining jurisdiction beyond the six month period. Defendant discovered the existence of these orders months later. There then followed a series of orders purporting to retain jurisdiction and to increase defendant's share of the child support, all of which were issued without proper notice to defendant. Defendant attempted on June 4, 1992 to bring to the Florida court's attention plaintiff's behavior in securing these orders, but was told that the court had "no jurisdiction" to hear her application. In the interim, defendant had remarried a member of the Coast Guard and, following her new husband's transfer, the family moved to New Jersey in January 1993. The last order before the move had issued from Florida on June 2, 1992.
On January 18, 1993, defendant's New Jersey counsel filed the August 28, 1991 order with the Clerk of the Superior Court of New Jersey. Under the mistaken impression that his filing conferred plenary jurisdiction upon New Jersey, defendant's counsel also filed with the Florida court and sent to plaintiff a notice announcing the change of jurisdiction. We note that this was not a motion, nor did it request any relief from the Florida court.
On February 4, 1993, plaintiff filed with the Florida court a "Motion to Enforce Settlement Agreement and/or for Re-Hearing." Defendant received no notice of this motion and apparently no such settlement agreement existed. Plaintiff's attorney had merely mailed proposed agreements to defendant's Florida attorney. A hearing was set for March 30, 1993.
On February 16, 1993, plaintiff filed with the New Jersey court a motion to strike defendant's notice of change of jurisdiction and represented to the New Jersey court that "various motions" regarding the parties' children were "currently pending" in Florida. A hearing was set on the matter for March 19, 1993 in New Jersey before the Family Part. Plaintiff then, on an emergent basis, applied for and received a hearing in Florida on March 11, 1993 to determine jurisdiction. The Florida court then issued an order on March 12, 1993 denying defendant's motion to transfer jurisdiction to New Jersey, although no such motion had ever been made. At the March 19, 1993 hearing in New Jersey, the court denied plaintiff's request to strike the notice of change of jurisdiction, observing that the effect of defendant's notice was merely to advise Florida of defendant's new address and where to send the support checks.
After obtaining the Florida order denying the "motion" to transfer jurisdiction, plaintiff informed defendant by letter that he would be picking up the children on April 8, 1993 for visitation in Florida and that she should bring the children to the airport in Philadelphia. Since plaintiff was not entitled to this visitation and, contrary to court order, had not made the arrangements with defendant, defendant feared that the children would not be returned if she allowed them to leave New Jersey. On April 1, 1993, the New Jersey court issued an emergent order limiting visitation to within New Jersey. On April 13, 1993, the New Jersey court assumed emergency jurisdiction over the children citing their best interests and fear of their disappearance. On April 14, 1993, the Florida court transferred custody to plaintiff.
On June 4 and June 8, 1993, the New Jersey court held hearings on whether the custody and visitation provisions of the August 28, 1991 order should be modified. It was at these hearings that plaintiff's repeated due process violations became clear to all. Plaintiff's Florida counsel testified that he had never noticed defendant of the application for the orders he obtained from the Florida court in February 1992 and that he knew she was unrepresented at that time. He was later admonished by the Florida Bar for his conduct in this case. We note that information concerning the substance of this testimony is entirely absent from plaintiff's brief before this court, in which he relates as "procedural history" and "fact" the existence and content of the February 1992 orders retaining jurisdiction. Although plaintiff's Florida attorney specifically testified at this time only with regard to the February 1992 order, as will be explained infra, it is clear from the record that plaintiff's due process violations were pervasive during this litigation.
Throughout 1993 the Florida court issued various orders regarding custody, and the New Jersey court began hearings on defendant's attempts to enforce the child support provisions of the August 28, 1991 order. Plaintiff refused to supply the New Jersey court with the requested financial information. On March 4, 1994, after a telephonic conference between the New Jersey and Florida judges, Florida again relinquished jurisdiction over the matter, citing the best interests of the children. On March 7, 1994, however, plaintiff's Florida attorney sent an ex parte letter to a Florida judge who had issued prior ex parte orders in the matter, but who was no longer sitting in the family court, stating that "someone" 2 had contacted the administrative judge of the Family Division and "mislead" [sic] him into believing jurisdiction did not belong in Florida. That same day the Florida court rescinded its March 4, 1994 order that had relinquished jurisdiction.
On April 6, 1994, plaintiff telephoned defendant at her office and, overheard by defendant's co-worker, threatened to kill her and her counsel and to take the...
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