As to spousal support, the bigger issue may be NY & NJ UIFSA. Check this out:
(f) A tribunal of this state issuing a support order consistent with the law of this state has continuing, exclusive jurisdiction over a spousal support order throughout the existence of the support obligation. A tribunal of this state may not modify a spousal support order issued by a tribunal of another state having continuing, exclusive jurisdiction over that order under the law of that state.
N.Y. Fam. Ct. Act § 580-205 (McKinney)
NJ has the same provision. I scanned decisions and case law interprets this as the spousal support order (as opposed to child support) stays in the state originally issuing it. So the question of whether the NY appellate court wrests jurisdiction out of the NY and NJ trial courts really isn't the main issue.
As to child support, the result may be different. Under UIFSA, if everyone has moved to NJ, it would appear NY no longer has exclusive continuing jurisdiction and the NY appellate court may not have subject matter jurisdiction to decide the appeal.
(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
N.Y. Fam. Ct. Act § 580-205 (McKinney)
NJ is the same.
This is just a quick look up, others may have practical experience with the issues.
Clara S. Licata
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Law Office of
Clara S. Licata, Esq.
55 Harristown Rd.
Suite 302
Glen Rock, NJ 07452
201-612-1170
Fax 201-612-1179
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Original Message:
Sent: 10-15-2014 20:18
From: Steven Cytryn
Subject: Modification of Judgment on Appeal
Here's the situation - Client was divorced in NY following a full trial that determined all issues, including custody, alimony and child support. Client is appealing NY judgment with a NY firm. Appeal is pending.
Client and ex-spouse moved to NJ. We domesticated the judgment here and are enforcing the parenting time provisions (which ex-spouse has been frustrating). So far so good. Client is now asking us to move to modify his child support and alimony as a result of changed circumstances.
My gut reaction is that the NJ court does not have jurisdiction to modify the judgment that is on appeal in NY unless we obtain leave to do so from the NY appellate court. Stepping back for a second - if this were only a NJ case, Rule 2:9-1 would require us to seek leave before asking the trial court to modify a judgment on appeal.
But here, it's a little more complicated, because the judgment is on appeal in NY, and we have subsequently domesticated the NY judgment here in NJ. I cannot imagine that domesticating a judgment on appeal in another state suddenly allows a party to modify that judgment in the new state, but I cannot find any source or authority on the topic.
I would obviously hate to make a motion to modify, only to get shot down because the judgment is on appeal in NY. Would we need to obtain leave from the NY appellate division, is there some other procedure I'm missing here? Any thoughts would be very much appreciated, but please point me to the supporting authorities!
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Steven Matthew Cytryn
116 Magnolia Street
Highland Park, NJ 08904
201.803.8874