SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-3275-98T3
CATHERINE YOUSSEFI (now known
as CATHERINE CAFFREY),
Plaintiff-Respondent,
v.
MANOUTCHERHR YOUSSEFI,
Defendant-Appellant.
Submitted: December 7, 1999 - Decided: February 3, 2000
Before Judges Skillman, Newman and Fall.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Union County.
Victor F. Zambelli, attorney for appellant.
Johnstone, Skok, Loughlin & Lane, attorneys for
respondent (William V. Lane, of counsel and on
the brief).
The opinion of the court was delivered by
FALL, J.A.D.
In this matrimonial matter, defendant, Manoutcherhr Youssefi,
appeals from entry of a post-judgment order entering judgment
against him for $25,124.62,See footnote 11 consisting of child support arrears
($11,187.70); defendant's share of uninsured medical expenses and
medical insurance costs of the children for the years 1992 through
1996 ($6,750.92); previously-ordered unpaid attorney fees ($5,000);
a previously-ordered unpaid lump sum due plaintiff ($2,000); and
defendant's share of the appraisal costs incurred upon sale of the
marital domicile ($186). We affirm.
The parties were divorced on May 23, 1988 in New Jersey after
a marriage of approximately nineteen years. Three children were
born of the marriage. The parties agreed on all issues except the
equitable distribution of two oriental rugs and counsel fees. On
the issues of support, the parties agreed defendant would pay $150
per week in child support, allocated $50 per week per child, plus
$150 per week in alimony until a jointly-owned parcel of real
estate was sold, when the alimony would increase to $250 per week
for a period of four years. At the end of the four-year period,
alimony would terminate if plaintiff obtained her bachelor's
degree; if not, alimony would continue at $150 per week for an
additional year, terminating thereafter.
Child support and alimony payments were to be paid by
defendant through the Union County Probation Department. Uncovered
medical expenses and the costs of medical insurance for the
children would be borne by the parties in proportion to their
respective incomes.
The judge took testimony on the oriental rugs, found they were
exempt as a pre-marital asset, and awarded them to defendant. The
judge also required defendant pay $6,600 to plaintiff in attorney
fees.
Thereafter, a consent order was entered on September 17, 1992,
memorializing a settlement of outstanding issues raised by
plaintiff in a post-judgment application. The relevant elements of
that consent order essentially provide:
* Plaintiff's claim for alimony arrears and
defendant's claim for overpayment of
alimony are dismissed;
* Probation shall vacate any alimony
arrears shown on its records;
* Effective July 31, 1992, all child
support arrears shown on probation's
records are vacated;
* The child Sylvia, born on December 14,
1971, is emancipated;
* Defendant will continue to pay child
support at the rate of $50 per week per
child for the children Elijah, born April
19, 1980, and Eric, born February 27,
1982, through Union County Probation
Department;
* Paragraph 7 states "That the afore
mentioned amount of Child Support to be
paid is pursuant to the Judgment of
Divorce, and is without prejudice to
either Plaintiff or Defendant having the
right to make application to this Court
for an increase or decrease of child
Support, together with an increase or
decrease in the percentage amount each
Party is hereunder obligated to
contribute toward Medical Insurance
premiums for the children and uninsured
or unreimbursed Medical expenses for said
children;"
* Defendant gives his consent to plaintiff
to move with the children to the States
of Florida or Utah;
* All claims by either party for
reimbursement for past college costs of
Sylvia are dismissed;
* All claims by plaintiff for medical
insurance or unreimbursed medical
expenses of the children prior to August
13, 1992 are dismissed;
* Paragraph 13 states "For and in consid
eration of the foregoing, it is Ordered
that defendant shall pay to Plaintiff the
sum of Two Thousand Dollars ($2,000.00)
within sixty days of the date of this
Order;"
* The Westfield marital domicile was to be
conveyed by defendant to plaintiff free
and clear of all claims by defendant;
* Defendant would contribute 73" toward the
costs of maintaining the children on
plaintiff's husband's medical insurance
coverage;
* Defendant would contribute 73" toward the
costs of unreimbursed medical expenses of
the children, and as to both the medical
insurance and unreimbursed medical, and
"[s]hould defendant fail to reimburse
Plaintiff within this thirty (30) day
period, Plaintiff shall have leave to
file an ex parte application to the Court
for enforcement;"
* Defendant shall pay $250 for the cost of
an appraisal; and
* Plaintiff may make application to the
court for an order compelling defendant
to contribute to her attorney fees and
costs on the application.
Upon another post-judgment application by plaintiff and a
cross-motion by defendant, an order was entered on January 25,
1993, increasing defendant's child support obligation to $100 per
week per child, effective December 14, 1992; requiring defendant
pay the $2,000 previously ordered in the September 17, 1992,
consent order within ten days or a bench warrant for his arrest
shall issue; and ordering defendant pay the $5,000 balance due on
the previously-ordered attorney fee.See footnote 22 Defendant appealed that
order, and, in an unreported opinion decided March 23, 1994, we
affirmed.
Sometime in 1995, plaintiff moved to Utah with the children
and defendant moved to France. An order was entered on April 16,
1996, which provides:
The obligor resides in France. The
obligee resides in the State of Utah. The
State of Utah, Department of Human Services
has advised that the obligor is making
payments through their agency. The State of
Utah has requested dismissal of our case.
Union County Probation is to close its records
and interests in this matter. Any arrears
owed obligee are to be reserved off ACSES.
The account is to be closed with zero
balances.
The record suggests the impetus for that order was communication
between Utah's Department of Human Services and Union County's
Probation Department on the issue of collection. Thereafter,
defendant continued paying child support through Utah's Department
of Human Services, albeit not the full amount due, Utah's records
showing $11,257 in child support arrears as of July 1998. There
were no applications in Utah to modify the provisions of the New
Jersey support orders.
On or about August 28, 1998, plaintiff filed a post-judgment
motion in New Jersey seeking enforcement against defendant of child
support arrears, unpaid medical insurance contributions, unpaid
unreimbursed medical expense contributions, and various unsatis
fied monetary obligations, all accruing pursuant to the September
17, 1992, and January 25, 1993, orders. In her moving papers,
plaintiff certified that subsequent to the September 17, 1992,
consent order defendant failed to comply with its terms as to child
support, medical insurance and unreimbursed medical contributions,
the $2,000 payment required by paragraph 13 of the September 17,
1992, order, his share of the ordered appraisal amount, and the
counsel fee award of $5,000. Plaintiff also stated that, after the
increase in child support contained in the January 25, 1993, order,
defendant fell further behind in his child support payments.
A copy of plaintiff's motion and moving papers was mailed to
defendant at his post office address in France by registered mail
on October 16, 1998.
Meanwhile, defendant was corresponding with Utah's Department
of Human Services, contesting the amount of arrears shown on its
ledger, and contending child support should cease when the youngest
child graduates from high school. In a December 4, 1998, letter to
defendant, sent to the same address as were the motion papers, the
Utah Department of Human Services replied to defendant, in part, as
follows:
On page 2 of Ms. Johnson's [of the Utah
Department of Human Services] letter it states
that your monthly due child support would
cease when your youngest child graduates from
high school. That would be correct if your
order had been issued in Utah. However,
because your order was issued in New Jersey,
the obligation will continue for both children
until the order is amended specifying the
conditions that terminates your monthly
obligation for each child. Your New Jersey
child support order does not include wording
regarding an end date for monthly due child
support for neither Elijah nor Eric. As I
previously stated in my letter of August 24,
1998, Ms. Layton discussed your order with the
New Jersey Interstate Child Support Central
Registry and was informed that New Jersey
child support orders should include the age of
majority or conditions of emancipation in the
order; which your order does not.
Plaintiff's motion, originally scheduled for October 9, 1998,
then November 20, 1998, was adjourned to January 8, 1999, and, by
letter dated December 17, 1998, sent by both registered and regular
mail, plaintiff's counsel advised defendant of the new hearing date
and enclosed another copy of all motion papers. By certification
dated December 18, 1998, plaintiff's counsel certified service of
the motion papers was made upon defendant "pursuant to Article 10
of the Convention on the Service Abroad of Judicial and
Extrajudicial Documents in Civil or Commercial Matters (the Hague
Convention)."
On January 8, 1999, the matter was heard by Judge Lyons.
Defendant did not appear nor did he file any responsive papers or
objection. On the jurisdiction issue, Judge Lyons stated:
The Court was concerned with its
jurisdiction, however, the court has
researched the Hague Convention and the treaty
that follows. Under that . . . treaty . . .
and under Article 10 [it provides] that the
state of destination, and in this case France,
does not object with service by mail, judicial
documents can be sent directly by mail.
This motion was served on the husband
through registered mail as certified by
plaintiff's counsel's office. In addition,
the court has determined that France is a
signatory and does not object to such service
under this statute. [The] Court has also
checked with the probation office in Utah
which collects these funds to determine that
the amount is accurate in the judgment. Given
the arrearages here and the fact that the
matter is not contested, the court will fix
the judgment and enter the judgment.
In the order memorializing his decision, Judge Lyons entered
judgment against defendant in the amount of $25,124.62 and awarded
counsel fees to plaintiff in the amount of $1,959.89.
Upon being served with a copy of the notice of appeal, Judge
Lyons amplified his decision pursuant to R. 2:5-1(b) in a letter
opinion dated February 25, 1999, stating, in pertinent part:
Since 1994, however, the husband has been in
arrears with respect to the payments ordered
as well as continuing child support. The wife
submitted a Certification setting forth the
violations of the existing Order in great
detail with support, as well as the current
figure from the Utah Department of Human
Services, Office of Recovery Services setting
forth the child support arrearages.
Evidently, the collection of the child support
was transferred to Utah at some time when Mrs.
Youssefi moved there from New Jersey.
The matter came before the Court and was
unopposed by Mr. Youssefi who did not appear.
Mr. Youssefi is a foreign national and a
resident of France. His business address,
however, is in Switzerland. The Motion,
together with the Affidavit of Service, shows
that he was served by mail in France.
The initial question addressed by the
Court was whether or not this service was
effective service. The Court noted that the
defendant had been served pursuant to Article
10 of the Convention on the Service Abroad of
Judicial and Extra-Judicial Documents in Civil
or Commercial Matters (the "Hague
Convention"). Article 10 of the Hague
Convention provides a mechanism by which a
plaintiff in the United States can effectuate
service of process on foreign defendants. The
Court noted that Article 10(a) states,
"Provided the State of destination (France)
does not object, the present Convention shall
not interfere with (a) the freedom to send
judicial documents, by postal channels,
directly to persons abroad, . . ." The Court
took judicial notice that France is a
signatory to the Hague Convention and has not
objected. The Court also noted that New
Jersey Court Rule 4:4-4(b)(1)(B) provides that
in personam jurisdiction may be obtained over
any defendant by personal service outside the
United States if done in accordance with any
governing treaty. The Hague Convention is the
governing treaty at issue.
The Court also noted that the Appellate
Division has upheld service of process by mail
to a foreign defendant in Gapanovich v. Komori
Corp.,
255 N.J. Super. 607 (App. Div. 1992).
The Court therefore found that service was
effective.
. . . .
In addition, the Court reviewed the
Williams v. Williams,
59 N.J. 229 (1971)
standard concerning the application for legal
fees, as well as the fact that N.J.S.A. 2A:34
23(a) requires a party defaulting in child
support payments to pay attorney's fees in an
action to enforce such Order unless the Court
finds circumstances that would make this
payment unjust. The Court found no such
circumstances here. In addition, in reviewing
the Williams standards with respect to
attorney's fees sought that did not relate to
child support, the Court noted that since
1994, no payments had been made, evidencing a
lack of good faith on the defendant's part.
Accordingly, the Court entered an Order
providing for attorney's fees after reviewing
the appropriate Affidavit of Services under R.
4:42-9(b).
On appeal, defendant presents the following issues for our
consideration:
POINT I
SINCE BOTH PARTIES TO THIS ACTION ARE AND WERE
DOMICILED OUTSIDE OF NEW JERSEY, NEW JERSEY
SHOULD NOT HAVE ASSUMED JURISDICTION IN THIS
MATTER.
POINT II
IN PERSONAM JURISDICTION BY SUBSTITUTED OR
CONSTRUCTIVE SERVICE WAS NOT OBTAINED IN THIS
MATTER.
POINT III
JUDGMENT OF DIVORCE AND SUBSEQUENT AMENDING
ORDERS DO NOT INDICATE WHEN MINOR CHILDREN OF
MARRIAGE WILL BE EMANCIPATED AND WHEN CHILD
SUPPORT WILL CEASE.
Defendant contends the motion judge erred in considering plaintiff's application because the court lacked jurisdiction since both parties to the action are domiciled outside New Jersey.
Although not mentioned by either party, the Uniform Interstate Family Support Act (UIFSA), N.J.S.A. 2A:4-30.65 to -30.123, enacted in New Jersey on March 5, 1998, "provides a comprehensive framework for dealing with the jurisdictional problems at hand." Peace v. Peace, 325 N.J. Super. 122, 127 (Ch. Div. 1999). Like New Jersey, Utah has also adopted UIFSA and codified it in its state statutes. U.C.A. §§ 78-45f-100 to -901. Congress mandated that, by January 1, 1998, every state must adopt UIFSA, including any amendments, to provide unity and structure in each state's approach to the modification and enforcement of child support orders. 42 U.S.C.A. §666(f). Accordingly, the question of jurisdiction in this case is governed by UIFSA.
"Under UIFSA, jurisdictional disputes are resolved by reference to the concept of 'continuing, exclusive jurisdiction.'" Peace, supra, 325 N.J. Super. at 128; N.J.S.A. 2A:4-30.72. Where a state has issued a support order and that state remains the residence of the obligor, individual obligee, or child beneficiary, it has continuing, exclusive jurisdiction over the child support order, unless the parties have filed written consents with the issuing state for another state to assume continuing, exclusive jurisdiction. N.J.S.A. 2A:4-30.72 provides in pertinent part:
a. A tribunal of this State issuing a
support order consistent with the law of this
State has continuing, exclusive jurisdiction
over a child support order:
(1) as long as this State remains the
residence of the obligor, the individual
obligee, or the child for whose benefit the
support order is issued; or
(2) until all of the parties who are
individuals have filed written consents with
the tribunal of this State for a tribunal of
another state to modify the order and assume
continuing, exclusive jurisdiction.
b. A tribunal of this State issuing a
child support order consistent with the law of
this State may not exercise its continuing
jurisdiction to modify the order if the order
has been modified by a tribunal of another
state pursuant to this act or a law
substantially similar to this act.
c. If a child support order of this State
is modified by a tribunal of another state
pursuant to this act or a law substantially
similar to this act, a tribunal of this State
loses its continuing, exclusive jurisdiction
with regard to prospective enforcement of the
order issued in this State and may only:
(1) enforce the order that was modified
as to amounts accruing before the modifi
cation;
(2) enforce nonmodifiable aspects of that
order; and
(3) provide other appropriate relief for
violations of that order which occurred before
the effective date of the modification.
d. A tribunal of this State shall
recognize the continuing, exclusive juris
diction of a tribunal of another state which
has issued a child support order pursuant to
this act or a law substantially similar to
this act.
This section is recognized as one of the most crucial
provisions of UIFSA. John J. Sampson, Uniform Interstate Family
Support Act, 27 Fam. L.Q. 93, 120 (1993). It establishes the
principle that, except in narrowly defined circumstances, the
issuing tribunal retains continuing, exclusive jurisdiction over
the child support order. Ibid. However, "[i]f all parties and the
child reside elsewhere, the issuing state loses its continuing,
exclusive jurisdiction _ which in practical terms means the issuing
tribunal loses its authority to modify its order." Id. at 120-21
(footnotes omitted).
From the record before us, we conclude Utah has never modified
the child support orders issued by New Jersey; Utah simply enforced
those orders. Although not clear from the record, we presume the
New Jersey support order was registered for enforcement in Utah.
U.C.A. §§ 78-45f-601 (registration of order for enforcement);
U.C.A. §§ 78-45f-602 (procedure to register order for enforcement).
The order dated February 21, 1996, relieved the Union County
Probation Department of its obligation to collect support monies
from defendant and disburse them to plaintiff; it did not
constitute a relinquishment of enforcement jurisdiction.
Because none of the parties reside here, New Jersey does not
have continuing, exclusive jurisdiction to modify the support
obligation. N.J.S.A. 2A:4-30.72a(1). However, since the New
Jersey order is the only order setting defendant's child support
obligation, it controls and must be recognized. N.J.S.A. 2A:4
30.74(a). A responding state, defined as "a state in which a
proceeding is filed or to which a proceeding is forwarded for
filing from an initiating state under this act or a law
substantially similar to this act . . . .[,]" must recognize the
order even though all parties have left the issuing state.
N.J.S.A. 2A:4-30.65.
Even though New Jersey lost continuing, exclusive jurisdiction
to modify its child support order, it retained jurisdiction to
enforce its child support order. N.J.S.A. 2A:4-30.72(c) explicitly
provides that the original issuing state retains the power to
enforce the collection of amounts accruing before a modification,
to enforce nonmodifiable aspects of the order, and to provide for
other appropriate relief for premodification violations of that
order. The official comment to section 205 of UIFSA, codified in
New Jersey's statutes at N.J.S.A. 2A:4-30.72, states: "nothing in
this section is intended to deprive a court which has lost
continuing, exclusive jurisdiction of the power to enforce
arrearages which have accrued during the existence of a valid
order." Sampson, supra, at 121.
If an issuing tribunal does not lose jurisdiction to enforce
its existing order when it has been modified in another state, it
follows the issuing tribunal retains jurisdiction to enforce its
order if no modification has taken place and no other jurisdiction
has assumed continuing, exclusive jurisdiction. See Linn v.
Delaware Child Support Enforcement,
736 A.2d 954, 964 (Del. 1999)
(interpreting statutory provisions identical to those in New Jersey
and finding that, under UIFSA, regardless of whether issuing state
retained continuing, exclusive jurisdiction to modify its child
support order, the court retained jurisdiction to enforce its
original order; and, because issuing state does not lose
jurisdiction to enforce its existing order when it has been
modified in another state, issuing state retains jurisdiction to
enforce its order if no modification has taken place and no other
jurisdiction has assumed continuing, exclusive jurisdiction).
Under these facts, we conclude New Jersey had jurisdiction to
enforce its child support orders, as well as other provisions
contained in those orders.
Defendant argues in personam jurisdiction was not obtained over him in this matter. Our review of the record in the light of the written arguments advanced by the parties discloses that this issue is without merit and does not warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(E). The children were born in New Jersey, and both parties resided with them in this State from their births until they divorced in 1988, providing a sufficient basis for the exercise of in personam jurisdiction. Service of post judgment motion papers is governed by R. 1:5-1(a), R. 1:5-2, and R. 1:5-4(a), not R. 4:4-4 as referenced by the motion judge. However, we are that satisfied service of the motion papers upon defendant was properly effected in accordance with applicable provisions of the Hague Convention.
Defendant contends child support arrearages were improperly calculated through August 1998 because the child Elijah was emancipated on April 19, 1998, the date of his eighteenth birthday. He also argues the New Jersey support orders do not contain an age at which the children are emancipated. These arguments are clearly without merit and do not require extensive discussion. R. 2:11 3(e)(1)(E). The issue of emancipation was not before the motion judge. However, we note that under New Jersey law there is no fixed age when a child becomes emancipated. Wanner v. Litvak, 179 N.J. Super. 607, 612 (App. Div. 1981). Our Supreme Court has discussed the issue of emancipation, as follows:
In general, emancipation is the act by
which a parent relinquishes the right to
custody and is relieved of the duty to support
a child. Emancipation can occur upon the
child's marriage, induction into military
service, by court order based on the child's
best interests, or by attainment of an
appropriate age. Although emancipation need
not occur at any particular age, a rebuttable
presumption against emancipation exists prior
to attaining the age of majority, now 18.
Attainment of age 18 establishes prima facie,
but not conclusive, proof of emancipation.
Whether a child is emancipated at age 18, with
correlative termination of the right to
parental support, depends upon the facts of
each case.
[Newburgh v. Arrigo,
88 N.J. 529, 543 (1982)
(citations omitted).]
Defendant failed to interpose a defense to enforcement based
upon the alleged emancipation of Elijah. Additionally, only a
small portion of the $25,124.62 judgment is attributable to child
support for Elijah subsequent to his eighteenth birthday on April
19, 1998. Should he choose to do so, defendant has the right to
make an application to the trial court seeking emancipation,
although we express no opinion on that issue.
We also find defendant's arguments concerning the award of
attorney fees lacking merit. Judge Lyons made sufficient findings
on this issue in his written opinion.
Affirmed.
Footnote: 1 1 In her certification in support of the enforcement motion, plaintiff requested judgment in the amount of $25,194.62. That amount was partially based on child support account records from the Department of Human Services Office of Recovery Services of the State of Utah showing accrued child support arrears due in the amount of $11,257 as of July 31, 1998. While the record does not provide an explanation for the reduced amount of the judgment entered, the motion judge commented at the January 8, 1999 motion hearing that he "checked with the probation office in Utah which collects these funds to determine that the amount is accurate in the judgment." We therefore surmise the discrepancy between the amount sought and the amount of the judgment is based on a determination by the judge of the precise amount of child support arrears due. Footnote: 2 2 The record does not reflect whether the $5,000 counsel fee was a portion of the $6,600 counsel fee defendant was ordered to pay in the final judgment, or was contained in a separate order arising from that portion of the September 17, 1992 order permitting plaintiff to apply for a contribution toward her counsel fees and costs.