A Smorgasbord, Courtesy of Judge Fisher: Subject Matter Jurisdiction, Personal Jurisdiction, Forum Non Conveniens, and Service of Process

Tatham v. Tatham, 429 N.J. Super. 502 (App. Div. 2013).  It is not often that a family law opinion touches on so many fundamental procedural issues.  This opinion by Judge Fisher addresses subject matter jurisdiction, personal jurisdiction, forum non conveniens, and service of process, all in one place.  The issues arose because the parties moved around a lot, due to defendant’s work in international financial investment.  The parties and their two children moved to New Jersey in 2006 or 2007.  Defendant left the state for Singapore in 2008.  Plaintiff and the children remained in New Jersey and, in 2011, plaintiff filed for divorce.

Judge Fisher noted that the lower court had improperly credited defendant’s sworn statements over those of plaintiff.  On a motion to dismiss for lack of subject matter or personal jurisdiction, a court is not permitted to “favor one certification over another.”  Instead, conflicting certifications require a plenary hearing to resolve the issues.  Until such a plenary hearing, courts are to assume the truth of the plaintiff’s allegations.

The issue of subject matter jurisdiction was resolved by reference to N.J.S.A. 2A:34-8, which gives the Superior Court jurisdiction over actions for divorce “when either party [to a marriage] is a bona fide resident of this state.”  “Bona fide resident” is equated with “domiciliary,” Judge Fisher said, and “domicile” is established by physical presence and an unqualified intention to remain permanently and indefinitely.  Plaintiff was physically present in New Jersey, and there was no evidence that she intended to change that, even after defendant left for Singapore.  It was not necessary for both parties to be residents of New Jersey, contrary to defendant’s argument.

For personal jurisdiction, the key inquiry is whether defendant had sufficient contacts with New Jersey that it was fair to require him to answer a lawsuit there.  That is an issue of constitutional due process.  Judge Fisher found ample contacts that sufficed to establish personal jurisdiction.  Defendant had lived in New Jersey with his family for at least thirteen months, and New Jersey was the last place that the parties lived together as a married couple.  Defendant opened bank accounts in New Jersey, bought a motor vehicle that remains in New Jersey, got a New Jersey driver’s license, sent funds into New Jersey for the benefit of plaintiff and the children, and regularly visited the children in New Jersey both before and after this case began.  Judge Fisher distinguished on their facts defendant’s cited cases of Kulko v. Superior Court, 436 U.S. 84 (1978), and Katz v. Katz, 310 N.J. Super. 25 (App. Div. 1998).

Decisions on forum non conveniens are within the trial court’s discretion.  But the judge below offered no reasoning on this issue.  Moreover, there is a “strong presumption” in plaintiff’s favor when she chooses her home state forum. 

Defendant asserted that Australia was a more convenient forum than New Jersey.  New Jersey was 9,500 miles, a twenty-hour flight, from Singapore, but Australia was not convenient either, since it was 1,700 miles and eight hours by plane from Singapore.  Australia is nearly 11,000 miles and a 21-hour flight away (if a direct flight were available) for plaintiff.  Australia thus was inconvenient for both parties.  Moreover, defendant had the resources to come to New Jersey, and he regularly did that anyway to visit his children.  The judge below erred in finding New Jersey an inconvenient forum.

Finally, as to issues regarding service of  process in Singapore, the lower court determined that because that court lacked jurisdiction (an erroneous finding, as discussed above), the court could not appoint a process server as required by the Court Rules.  That ruling was circular and mistaken, and the Appellate Division reversed it.