Opinion
DOCKET NO. A-0755-14T3
06-16-2016
KATHERINE SALAZAR, Plaintiff-Appellant/Cross-Respondent, v. DAVID I. GONZALEZ, Defendant-Respondent/Cross-Appellant.
Armando R. Horta (The Horta Law Group, L.L.C.) argued the cause for appellant/cross-respondent. David I. Gonzalez, respondent/cross-appellant, argued the cause pro se (Lynne M. Machtemes, on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Whipple. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-292-13. Armando R. Horta (The Horta Law Group, L.L.C.) argued the cause for appellant/cross-respondent. David I. Gonzalez, respondent/cross-appellant, argued the cause pro se (Lynne M. Machtemes, on the briefs). PER CURIAM
Plaintiff appeals and defendant cross-appeals an August 22, 2014 order of the Family Part denying their respective motions for reconsideration. We dismiss the appeal as moot.
Plaintiff and defendant were married on February 26, 2011, and had one child who was born in February 2012. The parties divorced on May 3, 2013. The final judgment of divorce incorporated the parties' custody, support, and property settlement agreement (Agreement). The Agreement provided defendant with one weekend of parenting time with the child per month; defendant, however, was required to exercise that time in Arizona, where plaintiff and child relocated after the trial court issued the final judgment of divorce. The Agreement also provided defendant with once-per-month visits with the child via an internet video chat service, such as Skype. Defendant filed a notice of motion on May 19, 2014, seeking three Skype visits per week in light of plaintiff's alleged refusal to grant him more Skype time and his alleged inability to travel to Arizona for in-person visits pursuant to the Agreement.
In response, plaintiff filed a cross-motion seeking to dismiss defendant's motion for lack of subject matter jurisdiction and to relinquish jurisdiction to Arizona pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The court, relying on parens patriae jurisdiction and its equitable powers, concluded that defendant and his child should visit via Skype or a similar service twice per week, without prejudice. The trial judge also concluded that, because defendant has not provided substantial proof of New Jersey residency in light of plaintiff's allegations that he lives elsewhere, and because of the degree of contacts that the parties have to Arizona, New Jersey courts would share jurisdiction over the matter with Arizona courts. Both parties subsequently filed motions for reconsideration, which were denied. Both parties' appeals followed.
We note here that, at oral argument, both parties conceded that a trial has already occurred in Arizona state court and defendant had been granted additional relief. Because both parties consented to jurisdiction in Arizona, the parties waived their objections to Arizona's jurisdiction. Because the matters before this court have been resolved, we dismiss those issues as moot. See Comando v. Nugiel, 436 N.J. Super. 203, 219 (App. Div. 2014) (citing DeVesa v. Dorsey, 134 N.J. 420, 428 (1993) (Pollock, J., concurring)) (explaining that a case is moot when the issues presented for resolution have already been resolved).
It was also reported that plaintiff and the child had since relocated to California. --------
We also dismiss the parties' arguments as to defendant's Skype time with the child. This issue has also already been determined in Arizona state court. We note, however, that we agree that the trial judge's decision to grant additional Skype visits to defendant was an acceptable exercise of discretion. We note that the Family Part must always be guided by a consideration of the best interests of any child subject to its jurisdiction. This duty imposes upon the Family Part an obligation "to intervene where it is necessary to prevent harm to a child." Segal v. Lynch, 413 N.J. Super. 171, 181 (App. Div.) (citing Fawzy v. Fawzy, 199 N.J. 456, 474-75 (2009)), certif. denied, 203 N.J. 96 (2010). The parens patriae doctrine authorizes the Family Part to modify even freely-negotiated agreements concerning child custody and parenting time. Fawzy, supra, 199 N.J. at 477-78. See also Wagner v. Wagner, 165 N.J. Super. 553, 556 (App. Div. 1979) ("since visitation is primarily for the benefit of the children of a marriage, defendant's obligation to support the children is independent of his visitation rights"), certif. denied, 85 N.J. 93 (1980).
Dismissed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION