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NJ Family Legal Blog Pertinent Information As It Relates To New Jersey Family Laws

Tatham v. Tatham: A Lesson in Civil Procedure?

Posted in Divorce
Bright-eyed law students around the country take a course called Civil Procedure during their first year of law school. By the time they graduate three years later, the will certainly remember the buzz-words “subject matter jurisdiction”, “personal jurisdiction” and “forum non conveniens”, but most all will have forgotten the concepts behind these foundational principles. Even as lawyers, since jurisdiction is not an issue that often arises (as most of matrimonial litigants do not contest that New Jersey is the appropriate forum in which to litigate their divorce), we may forget the specifics of these doctrines as well.  In the recent published (precedential) Appellate Division decision of Tatham v. Tatham, the Court gave us a primer in New Jersey civil procedure. 
 
The parties in Tatham are Australian citizens. Because of the Husband’s employment in international financial investment, the parties have lived all over the world during their marriage. The parties moved to New Jersey in 2007 and in the fall of 2008, the Husband moved to Singapore, where he has since resided. Wife, and the parties’ two teenaged daughters, have remained in New Jersey since 2007. Since Husband moved to Singapore in 2008, Husband regularly returned to New Jersey to visit his children until June of 2011, when the parties decided to get divorced. 
 
In the summer of 2011, Wife commenced a divorce action. Husband moved to dismiss Wife’s Complaint asserting was not the proper jurisdiction to litigate the matter. The trial court agreed and dismissed Wife’s action based on the 1) lack of subject matter jurisdiction over Husband; 2) the fact that it could not “fairly” exert personal jurisdiction over Husband; 3) that New Jersey was not a convenient forum; and 4) that service of the Complaint for Divorce was not properly effected. 

The Appellate Court reversed all four findings of dismissal. 

  1. The Appellate Court found that the trial court had subject matter jurisdiction over the divorce pursuant to N.J.S.A. 2A:34-8 as Wife was a bona fide resident of New Jersey (finding that she was a “domiciliary” of New Jersey because of her intent to remain in New Jersey indefinitely, notwithstanding her Husband living in Singapore). 
  1. When analyzing personal jurisdiction, the Appellate Court looked to Husband’s connections to New Jersey and whether it was fair (in a constitutional sense) for the Husband to be made to litigate in New Jersey. The Appellate Court found that Husband had sufficient significant and continuous contacts with New Jersey to require him to litigate in our courts. Specifically, the Court noted that Husband had entered New Jersey voluntarily, had resided here for 13 months with his family (indeed, it was the last place the parties resided together as married couple), opened bank accounts in New Jersey, purchased a car in New Jersey, obtained a New Jersey drivers license, and as noted above, visited his Wife and daughters in New Jersey for approximately three years.
  1. The Appellate Court also found Husband’s argument that Australia was the correct forum (a forum that was an eight hour flight away for him and a twenty-one hour flight away for wife) unpersuasive, noting that Australia was inconvenient for both parties and that there is a strong presumption in favor of the choice made by a resident who chooses a home forum (i.e., resident Wife initiating the action in New Jersey). Moreover, the Court found that the Husband had substantial resources and frequently traveled to the United States, therefore did not show that it would be a hardship for him to travel to New Jersey to litigate this matter.
  1. Finally, despite Wife having failed to comply with the requirement that a process server serving a non resident defendant outside of the United States must first be approved by the Court, the Court did not find any reason why Husband suffered any prejudice from same and reversed the trial court’s dismissal of the Complaint of this ground.
The takeaway from this case is that even as a non-resident of New Jersey, once you make ties to New Jersey, even if only for short time, a New Jersey resident can file an action against you in New Jersey family court and properly obtain jurisdiction over both you and the subject-matter. 

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Lauren E. Koster is an associate in Fox Rothschild LLP’s Family Law Practice Group. Lauren practices in the firm’s Princeton, New Jersey office and can be reached at (609) 844-3027 or lkoster@foxrothschild.com.