Opinion
DOCKET NO. A-5034-10T1
06-28-2012
ANOUSH KACHERIAN, Plaintiff-Appellant, v. ARSHAK EDWARD MIRZOYAN, Defendant-Respondent.
Anoush Kacherian, appellant pro se. DeFuccio, Clancy & Esposito, LLC, attorneys for respondent (Patricia A. Ferraro, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Ostrer.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1248-05.
Anoush Kacherian, appellant pro se.
DeFuccio, Clancy & Esposito, LLC, attorneys for respondent (Patricia A. Ferraro, on the brief). PER CURIAM
This appeal involves an issue of personal jurisdiction. Plaintiff Anoush Kacherian and defendant Arshak Mirzoyan were married in Armenia in 1989, divorced there in 2005, but spent periods of time together in the United States, including New Jersey, in the intervening years up to 2003. Over five years after their divorce, Kacherian permanently relocated to New Jersey, along with her three children. She filed a motion in Family Part, Bergen County in November 2010, seeking an order compelling her former husband to pay spousal and child support and for equitable distribution — none of which were ordered in the Armenian divorce decree. Judge Lisa Perez Friscia denied plaintiff relief, finding defendant lacked sufficient minimum contacts with New Jersey to justify exercising personal jurisdiction over him. Plaintiff appeals, and we affirm.
I.
We discern the following facts from cognizable evidence in the record, including the motion for reconsideration, giving all reasonable inferences to plaintiff, in the absence of a plenary hearing to resolve factual disputes.
Kacherian and Mirzoyan were married in Armenia on August 19, 1989. Kacherian is a natural-born United States citizen and Mirzoyan is a natural-born Armenian citizen who also became a United States naturalized citizen in 1995. The parties have three children: daughter Heghine born in 1990 in New York City; daughter Satenig, born in 1991 in New Jersey; and son Shant, born in 1994 in Portland, Oregon.
During the 1990s, the parties lived for extensive periods of time in the United States, sometimes in New Jersey. Kacherian asserts that the family, including Mirzoyan, stayed with her mother in New Jersey from December 1990 to January 1991 when they returned to Armenia. The family traveled back to New Jersey for a family wedding in July 1991 and remained until Satenig's birth in September. Mirzoyan returned to Armenia the next month, and the rest of the family followed later that year.
Kacherian and her daughters visited her family in New Jersey for the summer of 1992. Mirzoyan, an orthopedist licensed in Armenia and Russia, had been offered a two-year teaching position in Portland, Oregon in 1993. The family stopped in New Jersey on the way from Armenia to Oregon. Kacherian asserted it was "likely" Shant was conceived during that stop. The family also spent the winter holidays with Kacherian's family in New Jersey in 1993-1994. The family visited New Jersey frequently, stopping there on their way to Armenia and spending holidays with Kacherian's family.
In early 1996, Mirzoyan relocated to Denmark for employment there, while Kacherian and the children remained in the United States, moving in with Kacherian's mother in New Jersey. Mirzoyan visited New Jersey for birthdays and holidays. The children attended New Jersey public schools between 1995 and 1998. In August 1997, Mirzoyan returned to New Jersey to live with the family, until the whole family relocated to Armenia in August 1998. However, the entire family returned to New Jersey for visits on multiple occasions until 2003.
Mirzoyan recruited a paying patient in New Jersey to travel to Armenia for limb-lengthening surgery. He also maintained communications with a New Jersey resident who personally supported, or solicited donations from others, for Mirzoyan's Armenian-based charity that provided orthopedic surgery to needy persons. Although Kacherian asserted her former husband registered to vote in New Jersey in 2000, using her mother's address, no cognizable evidence of that was presented. During the period of time from 1991 to 2003, the couple received bank statements, credit reports, and other documents addressed to them at Kacherian's parent's address in New Jersey.
Kacherian asserted that in 1999, Mirzoyan founded a New Jersey registered non-profit corporation for the support of orthopedic surgery in Armenia. However, she provided no cognizable evidence to support that claim, which Mirzoyan denied, asserting his charity was formed as well as based in Armenia.
The parties separated in 2003 when Mirzoyan moved out of the marital residence in Armenia, an apartment owned by Mirzoyan's father. Kacherian and the children remained there until at least 2008. On July 29, 2005, the parties were divorced by a decision of the Court of Appeals of Civil Cases of the Republic of Armenia (Armenia Court of Appeals). Kacherian later filed for custody and child support. However, Kacherian withdrew her request for child support because she was concerned that admitting financial need would undermine her request for custody. On February 20, 2007, the Armenia Court of Appeals granted Kacherian custody of the children.
In 2007, Kacherian filed suit against Mirzoyan's father to compel him to recognize her as a joint owner of the apartment. The Armenian court dismissed her claim and granted the defendant's counterclaim for possession. We assume for purposes of the appeal that Kacherian was evicted in 2008 (although Mirzoyan claims she remained in the apartment until 2010).
Kacherian returned to New Jersey in 2009, but traveled to Armenia for months at a time until August 2010, after which she remained in New Jersey continuously. However, even before Kacherian's return in 2009, Heghine began attending the University of Michigan in August 2008. Satenig enrolled there the following year.
Aside from a visit to New Jersey in 2011 in connection with the instant litigation, Mirzoyan was last present in New Jersey in 2003. He was here temporarily while Shant received treatment in a New York City hospital.
Kacherian initially filed a pro se complaint on November 3, 2010 to register the Armenian divorce and custody judgment, and to seek equitable distribution, spousal support, and child support. Later that month, she filed a motion seeking the same relief, plus an order retaining jurisdiction over the Armenian judgments, and awarding reimbursement of past expenditures for the children. Kacherian apparently served the motion on Mirzoyan by mailing it to his sister's residence in California, which Kacherian claimed was also a residence of Mirzoyan. In January 2011, Mirzoyan cross-moved for the court to deny Kacherian's motion in its entirety and for fees. Kacherian, at that point represented by counsel, responded in February 2011.
The record does not reflect proof of service of the summons and complaint, nor a formal response by defendant.
The court heard oral argument on March 4, 2011. The court also briefly questioned Kacherian, who had not been sworn, to ascertain when precisely Kacherian claimed she resumed residence in New Jersey. The court attempted to determine the length of the children's residence for the purpose of deciding whether New Jersey qualified as their "home state." Kacherian ultimately explained that she returned to New Jersey in 2009, thereafter traveled back to Armenia for months at a time, but remained in New Jersey continuously since the summer 2010.
Although the court cited the "home state" definition from the Uniform Child Custody Jurisdiction Act, N.J.S.A. 2A:34-54, which governs custody matters, the Uniform Interstate Family Support Act, N.J.S.A. 2A:4-30.71, also conditions subject matter jurisdiction over support disputes on whether the forum state is the child's "home state," which generally means the state where the child lived with a parent for six consecutive months before the support complaint was filed. N.J.S.A. 2A:4-30.65.
With Mirzoyan's consent, but without conceding jurisdiction, the court entered an order registering the foreign divorce and custody orders. The court denied Kacherian's request for alimony and equitable distribution, and declined to retain jurisdiction, reasoning that Kacherian had failed to establish that Mirzoyan had maintained minimum contacts with New Jersey sufficient to exercise personal jurisdiction over him. The judge relied on the following jurisdictional facts: Mirzoyan had not set foot in New Jersey since 2003; he owned no property in New Jersey; and he had been present in the State only "fleetingly" in the 1990's. Also, Mirzoyan's fundraising efforts for his non-profit and his personal and professional relationships in the State did not suffice to establish minimum contacts as set out in Shah v. Shah, 184 N.J. 125, 139 (2005).
In addressing plaintiff's application for child support — both ongoing and reimbursement for past expenditures — the court did not apparently rely on its personal jurisdiction analysis. The court denied without prejudice the application for future child support, reasoning there was insufficient showing that New Jersey was the children's "home state." Thus, the court apparently concluded it lacked subject matter jurisdiction. The court denied plaintiff's request for reimbursement of past expenses in support of the children, citing the statutory prohibition against retroactive child support. N.J.S.A. 2A:17-56.23a.
Kacherian filed a pro se motion for reconsideration dated April 1, 2011, which the trial court denied May 13, 2011. The court noted that "much of what Plaintiff alleges on reconsideration was considered[.]" Moreover, although noting that plaintiff presented facts that she could have raised in her initial application, the court nonetheless considered them, finding "The recitation of Plaintiff does not establish jurisdiction." Kacherian filed her notice of appeal June 15, 2011 and an amended notice a month later. She raises the following points on appeal:
[POINT I]
THE TRIAL COURT ERRED IN APPLYING THE ANALYSIS OF DUE PROCESS AND TRADITIONAL NOTIONS OF FAIR PLAY AND SUBSTANTIAL JUSTICE AS EXPLAINED IN SHAH V. SHAH, 184 N.J. 125, 138 (2004).
[POINT II]
THE FINDINGS OF FACT MADE BY THE COURT WERE IN DIRECT CONTRADICTION TO FACTS IN DEFENDANT'S PLEADINGS AND ON THE RECORD, RESULTING IN AN INCORRECT APPLICATION OF LAW.
[POINT III]
THE TRIAL COURT ABUSED ITS DISCRETION BY DISMISSING THE MOTION FOR RECONSIDERATION.
II.
We exercise de novo review of the trial court's legal decision that it lacked personal jurisdiction over defendant. YA Global Investments, L.P. v. Cliff, 419 N.J. Super. 1, 8 (App. Div. 2011). On the other hand, we will not disturb the trial court's findings of jurisdictional facts, even in the absence of a plenary hearing, so long as they are supported by sufficient credible evidence in the record. Jacobs v. Walt Disney World Co., 309 N.J. Super. 443, 452 (App. Div. 1998). We note at the outset that plaintiff does not challenge the court's decision that retroactive child support was statutorily barred, N.J.S.A. 2A:17-56.23a. Nor does she address the court's decision that it was premature to seek child support, as New Jersey had not yet become the children's "home state." She confines her appeal to a challenge of the court's jurisdictional decision. We therefore restrict our analysis to those issues.
A.
In reviewing the trial court's decision, we apply a well-established framework for deciding a question of personal jurisdiction. New Jersey courts exercise personal 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 a plaintiff to satisfy a two-prong test. First, the defendant must have sufficient minimum contacts with the forum state; second, the plaintiff must demonstrate that maintaining the suit will not offend traditional notions of fair play and substantial justice. Waste Management, Inc. v. Admiral Ins. Co., 138 N.J. 106, 121 (1994), cert. denied, 513 U.S. 1183, 115 S. Ct. 1175-6, 130 L. Ed. 2d 1128 (1995).
Due process "protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful 'contacts, ties, or relations.'" Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72, 105 S. Ct. 2174, 2181, 85 L. Ed. 2d 528, 540 (1985). If a defendant has purposefully engaged in activities in a forum state, then he should reasonably anticipate having to appear in its courts. Id. at 475, 105 S. Ct. at 2183-84, 85 L. Ed. 2d at 543-44. On the other hand, if the defendant's contacts result from another's unilateral activities, or are fortuitous or random, then, it is unreasonable to assume he would anticipate being subjected to jurisdiction in the forum. Ibid.
The Supreme Court has recognized two forms of personal jurisdiction: "general jurisdiction" and "specific jurisdiction." General jurisdiction is warranted only when "continuous . . . operations within a state [are] thought so substantial and of such a nature as to justify suit against [the defendant] on causes of action arising from dealings entirely distinct from those activities." International Shoe Co. v. Washington, 326 U.S. 310, 318, 66 S. Ct. 154, 159, 90 L. Ed. 2d 95, 103 (1945); see also Lebel v. Everglades Marina, Inc., 115 N.J. 317, 323 (1989). "Specific jurisdiction" may be based on much more limited contacts, if the cause of action arose from or related to such contacts. Waste Management, Inc., supra, 138 N.J. at 119.
Also, the plaintiff bears the burden to prove that the defendant had sufficient contacts to warrant exercise of personal jurisdiction. Citibank v. Estate of Simpson, 290 N.J. Super. 519, 533 (App. Div. 1996). Unless there are material facts in dispute pertaining to the exercise of jurisdiction, the court may rule without an evidentiary hearing. Id. at 531-32.
These principles of personal jurisdiction 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) ("These jurisdictional fundamentals are, moreover, fully applicable in matrimonial litigation."). 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 v. Superior Court of California, 436 U.S. 84, 92, 98 S.Ct. 1690, 1696-7, 56 L. Ed. 2d 132, 141 (1978).
On the other hand, our Supreme Court has indicated that a matrimonial party's expectation to be haled into a faraway court may differ from that of a party in a business dispute. Landis v. Kolsky, 81 N.J. 430, 440 (1979) (noting "dispute does not arise out of a business transaction" in concluding father did not expect to be haled into California court where former wife and children relocated). Due process requires that the non-custodial parent purposefully avail him or herself of the privilege of conducting activities in the forum state as well as the protection and benefit of the laws of that state. Jaworowski v. Kube, 276, N.J. Super. 474, 478 (App. Div. 1994). Acquiescing in a child's move to another forum does not constitute purposely availing oneself of the protection and benefit of the laws of that new state. Kulko, supra, 436 U.S. at 94-95, 98 S. Ct. at 1698, 56 L. Ed. 2d at 142-43; Landis, supra, 81 N.J. at 441.
Due process principles mark the outer limit not only of the reach of New Jersey's long-arm rule, but also on statutory grants of personal jurisdiction. For example, New Jersey's version of the Uniform Interstate Family Support Act authorizes personal jurisdiction over a non-resident party if "the individual engaged in sexual intercourse in this State and the child may have been conceived by that act of intercourse" or the party resided in the state with the child. N.J.S.A. 2A:4-30.68(f) and (c). Similarly, the Uniform Parentage Act provides "[a] person who has sexual intercourse in this State thereby submits to the jurisdiction of the courts of this State as to an action brought under this act with respect to a child who may have been conceived by that act of intercourse." N.J.S.A. 9:17-46(b). However, application of both these statutory provisions must comport with due process. C.L. v. W.S., 406 N.J. Super. 484, 490-91 (App. Div. 2009).
In Katz, supra, 310 N.J. Super. at 32, we 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 an action to compel financial contribution to a child's post-secondary education. In Sharp v. Sharp, 336 N.J. Super. 492 (App. Div. 2001), we reversed the trial court's rejection of the defendant's argument, without a hearing, that the New Jersey court lacked personal jurisdiction over a California-based father for college expenses, where the parties were divorced in California, child support was established and modified in California, and the mother and daughter moved to New Jersey. We wrote, "[T]here is nothing in the record to support an allegation, or conclusion, that defendant's conduct caused an 'effect' in New Jersey sufficient to constitute the requisite 'minimum contacts.'" Id. at 505. See also Country of Luxembourg v. Canderas, 338 N.J. Super. 192, 202 (Ch. Div. 2000)(refusing to enforce a child support judgment issued by a court of Luxembourg, against a defendant with no ties to Luxembourg and finding that the issuing court therefore lacked personal jurisdiction over defendant).
By contrast, our courts will exercise jurisdiction in cases involving custody or parental rights, even where a defendant-parent is totally absent from the State, because the child, the res of the dispute, is present in New Jersey. See Shah, supra, 184 N.J. at 139, n.5. See also Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J. Super. 426, 459-60 (App. Div. 2003) (in action to terminate parental rights, court exercises jurisdiction over a mother who remained in Haiti based on contact with DYFS, the State's concern for child's welfare, and mother's request that child remain in New Jersey); Ali v. Ali, 279 N.J. Super. 154, 167-68 (Ch. Div. 1994) (court exercised jurisdiction over a father in Palestine to determine child custody following a foreign ex-parte divorce and custody decision that was not apparently based on child's best interests, and New Jersey was the child's "home state" under the Uniform Child Custody Jurisdiction Act).
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B.
Applying these principles, we conclude, as did Judge Perez Friscia, that the court lacks personal jurisdiction over Mirzoyan.
As a threshold issue, we discern no sufficient basis to assert general jurisdiction over Mirzoyan. His intermittent contacts with a New Jersey-based donor to his Armenian-based charity, and his solicitation of a New Jersey resident for treatment in Armenia, do not suffice as "continuous and systematic" contacts to justify asserting personal jurisdiction in a matrimonial dispute unrelated and "coincidental" to those contacts. See Lebel, supra, 115 N.J. at 323 ("The greater measure of the contacts for general jurisdiction is deemed relevant because of the limited interest of the forum state in entertaining the coincidental litigation."). The discontinuous and non-systematic transmittal of messages into the forum state, which may give rise to specific jurisdiction in a dispute arising out of those communications, are insufficient to establish general jurisdiction over Mirzoyan. See Id. at 325-27 (comparing the impact of communications into the forum state on general jurisdiction and specific jurisdiction).
Plaintiff fares no better when we apply a specific jurisdiction analysis. Defendant certainly had numerous contacts with New Jersey during the 1990s. He did not merely make family visits to the home of his mother-in-law in Bergen County. He resided here for months at a time. He used his mother-in-law's address for financial correspondence. And while the parties dispute why plaintiff and the children did not accompany Mirzoyan when he took a position in Denmark, New Jersey became the home base for his family during the extended period of time when he worked overseas. However, we are not asked to assert personal jurisdiction over Mirzoyan in 1996. We are asked to find jurisdiction in 2010, and by that time, those contacts were stale.
Although Mirzoyan's length of absence from New Jersey does not match that of defendant in Katz, supra, the court's comments apply equally to this case:
We cannot close our eyes to the reality that we live in an increasingly mobile society. That an individual once resided in a state does not confer continuing jurisdiction by the state over that individual no matter where he may relocate over the ensuing years.Notwithstanding that the parties in Katz were married here, we found it significant that they "freely moved their marital domicile to Pennsylvania and concluded their marital and familial obligations to each other in Pennsylvania, under Pennsylvania law." Ibid. In this case, the parties were married not here but in Armenia, and after the 1990s, they moved their marital domicile back to Armenia, obtained a divorce there, and continued to reside there post-divorce for several years. See also Squitieri v. Squitieri, 196 N.J. Super. 76, 86 (Ch. Div. 1984) (a party seeking to have a court exercise jurisdiction over an adversary may not "tack on periods . . . and claim acts of prior years to establish in personam jurisdiction . . . .").
. . . .
Whatever ties he may have had with this State have evaporated over the years and New Jersey's power to exercise personal jurisdiction over him has similarly disappeared.
[310 N.J. Super. at 32 (citation omitted).]
Plaintiff argues it was foreseeable that once the parties divorced, plaintiff would return to New Jersey, where she had family and a support network. However, mere foreseeability does not suffice. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295-97, 100 S. Ct. 559, 566-67, 62 L. Ed. 2d 490, 500 (1980) ("Yet 'foreseeability' alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause."). Plaintiff's relocation to New Jersey was still her unilateral act. See, e.g., Katz, supra, 310 N.J. Super. at 31 ("[T]he fact that plaintiff resides in New Jersey is clearly insufficient; her 'unilateral activity' cannot create a relationship between New Jersey and defendant."). Mirzoyan did not direct or cause Kacherian to move here. There is no evidence that Mirzoyan approved the move of his children thousands of miles away. In Landis, supra, we found that even a defendant's acquiescence in his children's relocation to California did not constitute purposeful availment of the California forum. 81 N.J. at 441.
Kacherian also attaches great weight to Mirzoyan's American citizenship, his alleged voter registration, and the fact that the parties' son may have been conceived in New Jersey, and a daughter was born here. None of these facts tip the balance. Mirzoyan's citizenship reflects ties to the United States, not New Jersey. Even if he was registered to vote here, we have no evidence he regularly exercised the franchise. Where the son was conceived in 1993, and a daughter born in 1991 also are not dispositive.
Although Satenig's birth in 1991 gives rise to a claim for support, Mirzoyan was only a temporary resident in 1991, and soon left the State with his daughter and the rest of the family for Armenia. The birth here therefore is insufficient to establish personal jurisdiction. Cf. Jaworoski, supra, 276 N.J. Super. at 479-80 (recognizing Arizona's personal jurisdiction over New Jersey resident-father of child born in Arizona where "defendant was a resident of Arizona when the child . . . was born," remained a resident for "some time thereafter," and obtained unemployment benefits in Arizona).
As for the son, Kacherian asserted that it was "likely" Shant was conceived here, during a temporary stay here on the way to Oregon. Implicitly, plaintiff alleged that Mirzoyan "engaged in sexual intercourse in this State and the child may have been conceived by that act of intercourse." N.J.S.A. 2A:4-30.68(f) (emphasis added). However, as we noted above, the UIFSA grant of jurisdiction is still subject to minimum contacts scrutiny.
In C.L., supra, we held there was a basis for personal jurisdiction over a child support action where defendant had impregnated plaintiff here, but plaintiff was domiciled here, the whole of their relationship was based in New Jersey, and when the parties ended their engagement and defendant left New Jersey, defendant was likely aware that plaintiff and child would remain in New Jersey. 406 N.J. Super. at 492. Here, plaintiff was not a New Jersey domiciliary — the family lived in Armenia and was on its way to Oregon. While the parties' contacts were not limited to "a fleeting act of sexual intercourse," 406 N.J. Super. at 494, which we indicated would be insufficient grounds to establish jurisdiction, their ties to New Jersey at the time do not match the substantiality of those in C.L., supra. Moreover, the passage of time has diluted the significance of both where Shant was conceived, and where Satenig was born. See Katz, supra, 310 N.J. Super. at 32.
In sum, we discern insufficient minimum contacts to establish personal jurisdiction over defendant. In light of that determination, we need not address defendant's arguments regarding the timeliness of plaintiff's appeal.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION