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Another state may modify the issuing state’s child support order only when the issuing state loses continuing, exclusive jurisdiction

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March 3, 2013 at 2:58 pm

Law Lessons from RACQUEL A. SPIERTO N/K/A RACQUEL DIODATO VS. THOMAS R. SPIERTO, App. Div., A-1837-11T1, February 25, 2013:

The Uniform Interstate Family Support Act (UIFSA), codified in New Jersey as N.J.S.A. 2A:4-30.65 to -30.123, and the earlier-enacted federal Full Faith and Credit for Child Support Orders Act (28 U.S.C.A. § 1738B) (the Act) obligates states to enforce child support orders issued by another state, but also imposes limitations on a non-issuing state’s authority to modify child support orders. See 28 U.S.C.A. § 1738B(a). Regarding modification, the Act provides, in relevant part, that

(e) a court of a State may modify a child support order entered by a court in another state if:
(1) The court has jurisdiction to make such a child support order pursuant to subsection (i); and
(2)(A) the court of the other State no longer has continuing, exclusive jurisdiction of the child support order because that State no longer is the child’s State or the residence of any individual contestant; or
(B) each individual contestant has filed written consent with the State of continuing, exclusive jurisdiction for a court of another State to modify the order and assume continuing, exclusive jurisdiction over the order.

[28 U.S.C.A. § 1738B.]

Together, UIFSA and the Act establish a national single-order system, which vests continuing, exclusive jurisdiction with the issuing state. The state issuing a child support order retains continuing, exclusive jurisdiction over its order so long as an individual contestant resides in that state. 28 U.S.C.A. § 1738B(d); N.J.S.A. 2A:4-30.72.

Consistent with UIFSA’s provisions, another state may modify the issuing state’s child support order only when the issuing state loses continuing, exclusive jurisdiction. N.J.S.A. 2A:4-30.72 to -30.73. Under the most commonly encountered circumstances, an issuing state will lose continuing, exclusive jurisdiction where both of the individual contestants (i.e., parents) and the children who are the subject of the support order have moved to different states. Under that scenario, the issuing state’s loss of continuing, exclusive jurisdiction is sensible as the state no longer maintains a nexus with the parties or the children and, furthermore, the issuing tribunal has no current information about the circumstances of anyone involved.

Alternatively, a state other than the issuing state may acquire continuing, exclusive jurisdiction where one or both of the individual contestants has relocated to another state, and the parent who is not seeking modification of the support order is subject to the personal jurisdiction of the court where the modification petition is sought to be filed. Specifically, subsection (i) of the Act provides that:

If there is no individual contestant or child residing in the issuing State, the party or support enforcement agency seeking to modify, or to modify and enforce, a child support order issued in another State shall register that order in a State with jurisdiction over the nonmovant for the purpose of modification.

[28 U.S.C.A. § 1738B(i).]

The absence of residency in an issuing state is not conclusive of, and does not in and of itself establish, jurisdiction in another state. Rather, the absence of residency in the issuing state begins the analysis, triggering the seminal consideration of which state then has jurisdiction over the non-moving party.

New Jersey’s version of UIFSA contains a specific long-arm provision, which states:

In a proceeding to establish, enforce, or modify a support order or to determine parentage, a tribunal of this State may exercise personal jurisdiction over a nonresident individual or the individual’s guardian or conservator if:
(a) the individual is personally served with a summons or notice within this State;
(b) the individual submits to the jurisdiction of this State by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;
(c) the individual resided with the child in this State;
(d) the individual resided in this State and provided prenatal expense or support for the child;
(e) the child resides in this State as a result of the acts or directives of the individual;
(f) the individual engaged in sexual intercourse in this State and the child may have been conceived by that act or intercourse; or
(g) 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:4-30.68.]

N.J.S.A. 2A:4-30.68(g) pertains to “long-arm jurisdiction.” See Int’l Shoe Co. v. Wash., 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95, (1945); see also Kulko, supra, 436 U.S. 84, 98 S. Ct. 1690, 56 L. Ed. 2d 132 (1978) (holding that without such minimal contacts, a state cannot exercise jurisdiction over a nonresident parent, but also indicating that if minimal contacts are present, long-arm jurisdiction can be exercised).

New Jersey courts exercise in personam jurisdiction over nonresident defendants to the full extent permitted by the due process clause of the United States Constitution. Avdel Corp. v. Mecure, 58 N.J. 264, 268 (1971); R. 4:4-4(b)(1). To subject a foreign defendant to personal jurisdiction, due process requires plaintiff to satisfy a two-prong test. First, the defendant must have sufficient minimum contacts with the forum state. Waste Mgmt., Inc. v. Admiral Ins. Co., 138 N.J. 106, 120-21 (1994), cert. denied sub nom. WMX Techs. v. Canadian Gen. Ins. Co., 513 U.S. 1183, 115 S. Ct. 1175, 130 L. Ed. 2d 1128 (1995). Second, the plaintiff must demonstrate that maintaining the suit will not offend “traditional notions of fair play and substantial justice.” Id. at 120.

These personal jurisdiction principles apply to matrimonial litigation in which a plaintiff seeks to impose affirmative duties on a defendant. Katz v. Katz, 310 N.J. Super. 25, 31 (App. Div. 1998). This includes personal obligations to pay child support and alimony. Ibid. The United States Supreme Court has recognized that applying minimum contacts principles to matrimonial litigation is a fact-sensitive endeavor. Kulko, supra, 436 U.S. at 92, 98 S. Ct. at 1696-97, 56 L. Ed. 2d at 141.

The benchmark for determining if the exercise of personal jurisdiction satisfies due process is whether the non-custodial parent purposefully avails himself or herself of the privilege of conducting activities in the forum state, as well as its protections and benefits. Landis v. Kolsky, 81 N.J. 430, 436 (1979); Jaworowski v. Kube, 276 N.J. Super. 474, 478 (App. Div. 1994). The “purposeful availment requirement ensures that a defendant will not be haled into a jurisdiction solely as a result . . . of the unilateral activity of another party or a third person.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S. Ct. 2174, 2183 85 L. Ed. 2d 528, 542 (1985).

It is axiomatic that to establish long arm jurisdiction, the requisite finding of minimal contacts must be based on an analysis of the nature, duration and extent of contact with the state. In Kulko, the defendant’s visitation in California on two occasions, thirteen years prior to the initiation of that court action, was deemed insufficient minimal contact. Kulko, supra, 436 U.S. at 93, 98 S. Ct. at 1697, 56 L. Ed. 2d at 142. The Supreme Court stated: “[T]o hold such temporary visits to a State a basis for the assertion of in personam jurisdiction over unrelated actions arising in the future would make a mockery of the limitations on state jurisdiction imposed by the Fourteenth Amendment.” Ibid. This seminal decision has informed courts across the United States in matters pertaining to family-related jurisdiction. While not precedential here, the North Carolina Supreme Court reached its decision, based on the extent of the defendant’s contact, and found that a non-resident father’s visitation with his child six times in the eight years preceding the initiation of that court action did not constitute sufficient minimal contact to invoke the state’s long-arm jurisdiction. Miller v. Kite, 313 N.C. 474, 480 (1985). In Katz, the court held that a father’s ties to New Jersey seventeen years before the lawsuit and his small current interest in New Jersey property were insufficient to justify personal jurisdiction in a child support action. Supra, 310 N.J. Super. at 32. Lastly, we have also determined that three brief vacations in New Jersey with no other contacts was not sufficient contact to establish jurisdiction. Sharp v. Sharp, 336 N.J. Super. 492 (App. Div. 2001).

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