Opinion
52430/09.
Decided April 8, 2010.
Attorney for the plaintiff, Deirdre Connolly: Eleanor B. Newirth, Esq., New York, NY.
Attorney for the defendant; Richard Cook: Leigh Baseheart Kahn, Esq. Mayerson, Stutman, Abramowitz, Esq., New York, NY.
Upon the foregoing papers, defendant Richard Cook (Husband) moves for an order granting the following relief: (1) dismissing the instant divorce action pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction on the ground that the jurisdictional requisites of CPLR 302(b) do not obtain in this matter; or alternatively (2) dismissing the action pursuant to CPLR 3211 (a) (7) for failure to state a cause of action on the grounds that the residency requirements of DRL § 230 have not been adequately pled by plaintiff Deirdre Connolly (Wife); or (3) dismissing the action pursuant to CPLR 327 on the ground that New York is an inconvenient forum for litigating same. Wife opposes the instant motion and cross-moves for an order granting the following relief: (1) issuing an order of protection to her as against Husband; (2) awarding her exclusive use and occupancy of the alleged marital residence located in Brooklyn, New York; (3) awarding her interim custody of the parties' infant child with whom she currently resides in Brooklyn; (4) directing Husband to pay interim child and spousal support to Wife in the amount of $8,710.00 per month and requiring him to maintain all insurance for and on behalf of Wife and the infant child, to pay all unreimbursed health expenses for Wife and the parties' child and to provide all payments for the child's private school, summer expenses and any and all other costs related to the child's care; (5) directing Husband to pay interim counsel fees of $25,000.00 to Wife; and (6) restraining Husband from making any and all transfers of assets during the pendency of this action.
In support of his motion for dismissal of the action, Husband submits an affidavit wherein he details the geographical history of the parties' marital relationship. He avers that the parties met in New York in 1996 while he was on vacation from his employment as a diplomat with the United Nations. At that time, he was the Deputy Director of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) in the Gaza Strip. By 1996, he had been working with UNRWA for approximately 11 years. During eight of those years (from 1985 to 1993) he was based in Vienna, Austria, while traveling extensively in Israel, the Gaza Strip, Jordan and Syria. At the time he met Wife, she was newly admitted to the New York bar and employed as an attorney with a law firm in Manhattan.
In 1997, Husband transferred to Jerusalem as Director of UNRWA operations for the West Bank. He states that for about a year he and Wife maintained a long-distance relationship until she terminated her New York employment and joined Husband in Jerusalem. Shortly after she arrived in Jerusalem, Wife obtained a post as a Lecturer and Program Supervisor at Birzeit University in the West Bank. After living together for over a year, the parties were married at the British Consulate in Jerusalem in October 30, 1998.
Husband states that he and Wife remained in Jerusalem until 2003. Husband was transferred to Lebanon on November 1, 2003. Since 1999, Wife had been a Project Officer with the United Nations Development program in Jerusalem and she continued in that position for a few months more prior to joining Husband in Beirut, Lebanon in February 2004. The parties' child was born in Beirut in December 2005.
In September 2008, Husband transferred to a new position as Country Director in Jordan. He avers that such transfer was the culmination of discussions between himself and Wife pursuant to which they jointly decided that Jordan would be a less stressful location than Lebanon in which to pursue a more positive and balanced family life. He asserts that prior to the parties' move to Jordan, Wife traveled there to look for a suitable residence for their family. However, six weeks prior to Husband's transfer, Wife informed him that she had been offered a short-term job by the United Nations in Lebanon which would be helpful to her career development.
From September 2008 to the end of December 2008, Husband visited Wife in Lebanon every two weeks. During the early part of 2009, Wife allegedly informed Husband that she was not sure if she wanted the marriage to continue. However, she also allegedly told Husband that she would stay in Lebanon until he retired in September 2009, and would continue to look for work in Vienna, Austria, a location Husband claims that the parties' considered as a potential residence post-Husband's retirement.
In mid-April 2009, Wife allegedly informed Husband that she wanted a divorce and would be moving to New York with the parties' child to establish residency, after which time she would return to Beirut where she had applied for a permanent position with the United Nations. Shortly thereafter, Husband, Wife and their child traveled to the United Kingdom to visit with Husband's adult children from his previous marriage. During this trip, on June 4, 2009, Husband was served with the summons in this action. Three days later, Wife and the parties' child left for New York and Husband returned to his position in Jordan.
Husband avers that he and Wife jointly purchased an apartment in Brooklyn, New York in August 2002 and that Wife and the parties' child currently reside there. He maintains, however, that the parties never resided there together during the marriage and intended that said property would be used for investment purposes and not as the parties' residence. Rather, Husband contends that the parties used the property as a place to stay during extended visits to Wife's family in the United States. Husband states that the property has been rented out to tenants for the majority of the time that the parties have owned same.
Husband calculates that the parties visited New York together on seven different occasions during their marriage: June 1999, December 2000, December 2001, July 2002, June 2003, December 2004 and November 2007. Three of these visits took place subsequent to the parties' purchase of the apartment in Brooklyn with one occurring after the birth of the parties' child. Each visit was approximately 2-3 weeks in duration with the most recent visit lasting approximately four weeks. Accordingly, Husband estimates that he and Wife spent from 16-20 weeks out of approximately 547 weeks of marriage (3% of total marital "time") in New York. He alleges that during his discussions with Wife pertaining to his retirement and the site of their residence thereafter, the parties did not contemplate a move to New York, but rather considered Vienna as a potential re-location site and, at one point, looked for a suitable apartment in that location due to favorable tax benefits available to Husband within said jurisdiction.
With respect to Wife's contacts with New York, Jerusalem and Lebanon, Husband states the following:
[T]he Brooklyn apartment aside, [Wife] and I had minimal contacts with New York during our marriage. In addition to the apartment, the only other asset we owned in New York is a joint account with the United Nations Federal Credit union, and a small amount of furniture. While [Wife] has voted in United States elections and filed United States tax returns throughout the marriage she has done so as a non-resident, listing our then-current addresses in Jerusalem and Beirut, respectively, as her residence (and, indeed, she has residency documents for Beirut); and she did not, to the best of my recollection, file New York State income tax returns. Further, while I know that [Wife] had a New York driver's license when we met, and during our marriage, I believe it expired some time ago; if it is now current, it is because [Wife] has only recently reinstated it. In addition, to the best of my recollection, [Wife] — an attorney admitted to the New York bar in 1996 — permitted her attorney registration to lapse years ago. Finally, we had no affiliation with any church or religious organization or membership in any social or community organization in New York.
By contrast, our day-to-day connections were all in Jerusalem until 2003, and then in Beirut from 2003 to the present. For example:
We were members of the local country club on an annual basis.
We paid municipal taxes on the residence that we rented.
[Our child] was registered in the local pre-school (in Beirut).
We had local bank accounts.
We had health care providers; [Wife] maintained no relationship with health care providers that she had previously used in New York.
We owned a car, presently located in Beirut, and we both had Lebanese license[s] permitting us to drive.
Husband also identifies the following alleged facts as militating against the litigation of the instant action in New York:
I am not a resident of New York, but a citizen of the United Kingdom, employed by a United Nations agency in Amman, Jordan, where I am posted, with limited leave, until September 2010. Thereafter, my residence will be either in the Middle East, or, most likely, Austria, but not in New York. The burden on me to litigate in New York (in terms of time, effort, and cost), including court appearances, production of documents, appearance for depositions, etc., would be substantial.
[Wife], while currently physically present in New York, has not continuously resided, or been domiciled, in New York since 1997. While we own property together in New York, that property was acquired for investment purposes and has been rented out for nearly all of the seven years for which we have owned it.
[Wife] and I were married in Jerusalem, Israel, and resided together, throughout our married life, in Jerusalem and Beirut, Lebanon. Our time spent in New York during the marriage was solely when on holiday and to visit [Wife's] relatives, and constitutes a small fraction of our married life.
None of the allegations set forth in the Verified Complaint as constituting plaintiff's cause of action for divorce (the veracity of which I vigorously dispute) is claimed to have occurred in New York; given the location of our residences during our marriage and the limited time spent in New York, it must therefore be presumed that all of the events alleged, assuming they actually occurred, took place more than half-way around the world.
With the possible exception of family members of [Wife] (who, given the lack of frequency with which they saw us, have limited, if any, information to offer) any witnesses who can attest to our respective contributions to the marriage, and/or to our respective relationships with [our child] and/or her care, education and general well-being (for more than just the past several months) would be located in Jerusalem and/or Beirut.
But for the apartment, one bank account, and a handful of stored furniture, the assets subject (or potentially subject) to equitable distribution are located outside of New York State.
Husband also avers that Wife has demonstrated that she does not intend to make Brooklyn, New York, her permanent home since she has informed him that she has applied to two positions in Lebanon and, apparently, has not applied to any positions located in New York.
In support of her cross motion, Wife submits an affidavit wherein she contends that New York is her domicile. She avers that she was born, raised and educated in New York, including her attendance at law school. She spent her early adult years in New York as well, was admitted to the New York bar and worked in New York during her initial employment as an attorney. She has voted in New York, filed New York state and federal tax returns, continually maintained two bank accounts in New York, maintained her New York State driver's license and purchased in Brooklyn, New York — with Husband — the only residence she has ever owned. She lists the Brooklyn home as her "permanent address" as part of her United Nations profile.
She avers that she resided with Husband subsequent to the parties' marriage at numerous temporary residences in Israel and Lebanon while he was posted at various duty stations located therein. Her residency documents for Lebanon permitted her to stay in Lebanon as long as same was Husband's assigned United Nations "duty station." Wife states that the parties never bought real property, established residency, voted in local elections or filed local tax returns while residing in the various locations in the Middle East where Husband was stationed during the marriage. She maintains that she took no steps to change her New York domicile to any other jurisdiction during the eleven years of the parties' marriage and traveled home to visit family and friends in New York "as often as was feasible."
Wife states that after Husband was transferred to Jordan, she and the parties' child, also a U.S. citizen, were given complimentary 3-year non-extendable extensions to stay in Lebanon, at the sole discretion of the Lebanese government because of the former diplomatic status of Husband in Lebanon, a courtesy extended to all foreign diplomats serving within that country.
With respect to the Brooklyn property, Wife states that in 2002, she and Husband determined that Brooklyn, New York was the "right place" to purchase a home for their family and stayed there for several weeks in order to view as many properties as possible before making said purchase. She avers that the parties "specifically decided that we wanted our family marital home and long term residence to be in Brooklyn, New York." She notes that Husband chose the real estate company and they viewed many properties with said realtor before choosing the Brooklyn residence. During their property search, they resided in New York where Husband's grown daughter from his prior marriage visited them. Husband lists the Brooklyn address as his "Permanent Residence" on his United Nations personal history form.
Wife explains that from 2002-2006 the parties stayed at the Brooklyn residence while traveling to New York. The residence was fully furnished for that purpose. In addition to furniture, other furnishings and decorations, Wife claims that the parties left clothing there in preparation for their trips to New York. In 2007, the parties decided to rent the residence with a 1 year lease from 2007-2008. Although the Brooklyn residence was rented during this time, the parties nonetheless traveled to New York for a one month visit. The parties' furniture and other personal possessions from the apartment were placed in a Brooklyn storage facility in anticipation of the parties' permanent relocation to the Brooklyn residence. The parties paid a monthly check to said storage company from 2006-2009, at which time Wife moved into the Brooklyn apartment with the parties' daughter.
Concerning Husband's other alleged contacts with New York, Wife describes New York City as "the locus of [Husband's] employment, banking relationships, real estate broker, tax payments, insurance company and pension retirement accounts." She notes that his employer is the United Nations, which has its headquarters located in New York City and, as a result, he has regularly received salary, engaged in ongoing communications with his employer, attended business meetings and conducted work related activities in New York. He maintains a checking account at UNFCU and the parties received a mortgage from this financial institution in order to purchase the Brooklyn property.
In addition, Wife avers the following:
Soon after [Husband] and I bought the [Brooklyn] Marital Residence in August of 2002, [Husband] submitted a formal application to his agency to change his "home country" as defined in United Nations Staff Rule 3.18 (iii) from the United Kingdom to the State of New York.
* * *
Under [said rule], UN staff members who are serving in duty stations outside their "home country" are given periodic (yearly/bi-yearly, depending on the duty stations), paid visits back to their home country, called "home leave." Our family, regularly, whenever possible under the rules, substituted New York for the United Kingdom for our "home leave." When it was not possible under the rules, the family would "stop off" in the UK on the way to New York on home leave.
* * *
[During] our marriage we regularly discussed that upon [Husband's] retirement we would return to New York to our Marital Residence. New York was an obvious choice, as New York is my home; my family and friends, with whom I have very close ties are in New York; and the United Nations Headquarters are in New York. New York is the place where either of us could pursue employment upon [Husband's] retirement. That was indeed our reason for purchasing the Marital Residence [in Brooklyn]: so that we would have a place to live in New York while we were posted abroad on temporary assignments to different countries. We discussed retirement to Vienna, mainly for tax reasons. We chose New York over Vienna, which led us to purchase our Marital Residence in Brooklyn on August 6, 2002. After our [child] was born in 2005, our resolve to retire to our home in New York became stronger, as it was important to both of us that [our child] be able to develop a close relationship with . . . aunts, uncles and cousins in New York, and grow up with the sense of security that a child living abroad lacks. Moreover, [Husband] applied for several jobs in 2005 in United Nations Headquarters in New York. . . .
Since Wife's return to New York with the parties' child, they have been residing in the Brooklyn residence. They were accompanied to Brooklyn by a child care worker employed by the parties. All of the furniture, furnishings and personal possessions which were formerly in storage are now located in said residence. The parties' child is attending pre-school near the Brooklyn residence and is set to attend kindergarten in September 2010.
With respect to that portion of her cross motion seeking various items of pendente lite relief, Wife avers that she is entitled to an interim order of protection, custody of the parties' child and exclusive occupancy of the Brooklyn residence based upon alleged longstanding verbal and physical spousal abuse by Husband. She also seeks $8,710.00 each month in child and non taxable spousal support plus the payment by Husband of all health, life, homeowner's and auto insurance and all unreimbursed medical expenses for Wife and the parties' child, private school, as well as all after school and summer activities for the child and $25,000 in interim counsel fees. Specifically, Wife represents that she currently incurs the following monthly expenses for the support of herself and the parties' child:
Housing (mortgage and amortization, real estate taxes and condominium charges): $2,260
Utilities (fuel oil, gas, electricity and telephone): $ 370
Food (groceries, school lunches, dining out (with child), liquor/alcohol and homeentertainment: $ 1,250
Clothing: Wife-$ 350
Child — $ 250
Laundry/Dry cleaning: $ 25
Unreimbursed Medical (optical and pharmaceutical co-pays): $ 206
Household Maintenance (repairs, furniture, furnishings, housewares, cleaning supplies, appliance maintenance and painting): $ 596
Household help (babysitter/domestic): $ 900
Automobile (payments, gas and oil, repairs, car wash, registration and license, parking and tolls): $ 570
Educational (nursery and pre-school for the parties' child; CLE classes for Wife to be determined): $ 583
Recreational (summer camp, vacations, movies, theater, ballet etc., video rentals, tapes, CDs, etc., cable television, health club, sporting goods, hobbies, sports lessons, birthday parties, toys): $ 1025
Income Taxes: To be determined.
Miscellaneous (beauty parlor, beauty aids, cosmetics, drug items, books, magazines, newspapers, gifts, commutation and transport): $325.
Total Monthly Expenses: $8,710.
Wife states that currently she receives only $ 3,500.00 per month from Husband. She avers that the expenses for the Brooklyn residence alone cost almost $2,700. She further asserts that Husband spent $15,000 to retain his attorney in New York. Wife is currently unemployed and has been unemployed since April 2009. Her previous salary was $60,000 annually. She has one bank account in her own name; all other financial accounts are held jointly by Husband and Wife or solely by Husband. She avers that Husband receives $14,909 in tax free salary each month. To date, Wife has paid a $5,000 retainer for her attorney and an additional $5,000 to date. She currently owes $5,293 in outstanding legal fees. Husband's net worth statement indicates that he earns $12,925.20 monthly and incurs monthly expenses in the amount of $17,661 (calculated by including the expenses of both his current residence in Amman, Wife's former residence in Beirut and some expenses for the Brooklyn residence). Said statement also reveals that Husband has substantial assets in a number of bank, brokerage and other financial accounts held both jointly between the parties and accounts solely in his name consisting of either alleged marital assets, premarital assets or a combination of both, plus pension accounts.
In opposition to that portion of Wife's motion seeking pendente lite spousal and child support, Husband avers that wife initially only requested $3,500 in child support and maintenance pending her retention of employment. He represents that he will continue to pay the sum of $5,260 per month to Wife (representing $1,760 per month for the mortgage on the Brooklyn residence and $3,500 for spousal and child support). He also states that he will continue to maintain health insurance for Wife and the parties' child during the pendency of the action. He further asserts that he has already paid the following expenses for Wife and the parties' child: $2,375 for pre-school fees; $1,200 for psychiatrist bills; $75 for kindergarten application fees; $585 for school activities; $180 for Wife's gynecologist; $350 for bar association fees for Wife and $250 for legal education costs for Wife.
In addition, he claims that because his salary is $11,255 per month after various deductions, he will be left with only $2,545 per month to pay his own expenses if ordered by the court to provide $8,710 in monthly support to Wife as she requests.
With respect to Wife's application for a temporary restraining order whereby she seeks to enjoin Husband from selling, transferring, assigning, conveying, hypothecating or otherwise disposing of assets except in the ordinary course of business and for ordinary and routine living expenses, such request is based upon her allegation that Husband improperly transferred at least $60,000.00 from marital accounts since January 2009.
As an initial matter, the court denies Husband's motion to dismiss the complaint upon the grounds asserted by him; namely, lack of personal jurisdiction, failure to state a cause of action for divorce and forum non conveniens. In considering the extensive record before it, the court finds that New York is properly construed as the parties' marital domicile, thereby authorizing the imposition of personal jurisdiction over Husband pursuant to CPLR 302 and similarly fulfilling Wife's residency pleading requirement under DRL § 230. In so determining, the court focuses on the salient issue of the parties' intent concerning their choice of permanent residence.
CPLR 302 (b) provides, in relevant part, the following concerning the imposition of personal jurisdiction in matrimonial actions:
A court in any matrimonial action or family court proceeding involving a demand for support, alimony, maintenance, distributive awards or special relief in matrimonial actions may exercise personal jurisdiction over the respondent or defendant notwithstanding the fact that he or she no longer is a resident or domiciliary of the state . . . if the party seeking support is a resident of or domiciled in this state at the time such demand is made, provided that this state was the matrimonial domicile of the parties before their separation. . . . The relevant residency requirement of DRL § 230 (5) provides that an action for divorce may be maintained in New York where "[e]ither party has been a resident of the state for a continuous period of two years immediately preceding the commencement of [said] action."
Withe respect to jurisdiction pursuant to CPLR 302(b), it has been held that a court may exercise jurisdiction where New York has sufficient interest in the outcome of the action and the defendant possesses adequate minimum contacts with the state to avoid any due process violation ( see Paparella v Paparella, 74 AD2d 106, 107). In addition, it must be demonstrated that New York was the last substantial matrimonial domicile before the parties' separation ( see Richardson v Richardson, 58 AD2d 861, 862); see also Staron v Staron, 215 AD2d 646). "Domicile" has been defined as the location where a person has voluntarily fixed his or her abode with the present intention of making same his or her permanent home ( see Davis v Davis, 138 Misc 2d 970, 979-980). Accordingly, once a domicile is acquired in New York, it is not lost merely due to temporary absences from the state and a person can change residences numerous times while retaining his or her original domicile ( Unanue v Unanue, 141 AD2d 31, 40). Stated differently, "[d]omicile, once established, unlike mere physical residency, is presumed to continue and is controlled by the subjective intent of the party claiming domicile" ( Guedes v Guedes , 45 AD3d 533 , 534). Indeed, there is a strong presumption that a person living in a foreign country intends to retain his or her United States domicile ( see Kramer v Paronen, 13 Misc 3d 1235, *3 [A][2006]). Although a change of domicile may be established through clear and convincing evidence ( see Matter of Minsky v Tully, 78 AD2d 955, 956), the burden of proving said change is upon the party asserting same ( Wilke v Wilke, 73 AD2d 915, 916).
In the instant case, the determination as to whether New York is properly construed as the parties' marital domicile for purposes of CPLR 302 (b) jurisdiction is a difficult one. As noted by Husband, although the parties owned the Brooklyn residence since 2002, they only utilized same during temporary, albeit regularly scheduled, trips to New York to visit Wife's friends and family. Moreover, the parties lived an international lifestyle during their marriage, largely determined by Husband's status as a senior diplomat stationed in the Middle East on various assignments for the United Nations, pursuant to which they — together and apart — lived variously in Israel, Lebanon and Jordan. In looking at the crucial elements of "intent" and "permanence" associated with the issue of domicile, however, the court finds that New York was the intentionally chosen marital domicile of the parties. New York is the only jurisdiction in which the parties bought real property together and regularly returned to, regardless of where Husband was stationed at the time. The importance of such trips to New York was such that Husband ultimately listed the United States as his "home state" for purposes of United Nations travel benefits. Although Husband maintains that said property was purchased solely for investment purposes, the parties did not rent out the property until several years after its purchase, resided there whenever they traveled to New York prior to its rental and did not enter into a rental agreement in excess of one year when they finally did lease the property to tenants. For several years, furniture, clothes and other personal belongings were kept at the premises. When such belongings were put into storage, they were kept in a facility located in Brooklyn.
To this court, the purchase of the Brooklyn property is key. The parties never purchased real property in the Middle East. There is no indication that any of their residences in the Middle East were other than transitory; when Husband was given a new assignment by the United Nations, the parties relocated to that area. There is no evidence that any indicia of permanency remained in any of their prior residences after the parties moved from Israel to Lebanon or when Husband moved from Lebanon to Jordan. Indeed, Husband asserts that he took the assignment in Jordan as Lebanon had proven to be a stressful location and was not conducive to a stable family life, hardly an indication that Lebanon was considered in any way by the parties to be their permanent home. Moreover, once Husband moved to Jordan, Wife was given a "grace period" during which she could remain in Lebanon, but there is no evidence that such grace period would have or could have been extended. There is also no evidence whatsoever that either Israel or Jordan were at any time either the domicile of Husband or Wife separately or could be construed as the parties' marital domicile. Husband states that the parties considered both the Middle East and Austria as potential domiciles for their permanent relocation subsequent to his retirement, but the court notes that New York is the only jurisdiction where the parties actually bought property.
It is well settled that in construing domicile, the court must weigh objective evidence in order to identify subjective intent and often the accumulation of informal, as opposed to formal, "declarations" concerning the parties' intention to make a specific locale their permanent home, are the most persuasive ( see Manasseri v Manasseri, 121 AD2d 697, 698; Wilke, 73 AD2d at 916-917). In weighing the accumulated factors here — Wife's longstanding connection to New York, the jurisdiction where she was born, raised, schooled, first became a professional and maintains close connections to friends and family, the location in New York City of the United Nations headquarters, Husband's long-time employer, the purchase together by the parties of the Brooklyn residence and their retention and personal use of same for several years, the parties' regular trips to New York and the transient, largely employment-focused nature of the parties' residences in the Middle East — lead this court to find that New York was the only permanent, mutual home the parties shared, in other words, their marital domicile, prior to their separation. Moreover, the location of Husband's employer, various financial accounts and the Brooklyn residence in New York, establish the requisite minimum contacts to allow for the exercise of jurisdiction by this court over him without offending any related due process requirements.
An easier question presents itself with respect to Wife's status as a New York domiciliary for purposes of the residency requirements mandated by DRL § 230. It is well settled that "[p]hysical residency is not the sole test for determining compliance with Domestic Relations Law 230, but is an alternative to domicile" ( Guedes, 45 AD3d at 418). Therefore, once his or her domicile is established in New York, a plaintiff can be deemed in compliance with the residency requirements of DRL § 230 ( see Capdevilla v Capdevilla, 149 AD2d 312, 313[recognizing that "[p]roof of either domicile or residency will suffice to show compliance with Domestic Relations Law § 230"). As stated cogently by the Appellate Divison, Second Department in the Unamue case: When undertaking to determine an issue of domicile, evidence of the following circumstances is relevant: a place of residence in the State of the alleged domicile; length of time of residence, location of schools attended by children; leasing, buying, negotiating for or building a home; declarations, oral or written, made at time of, or in connection with, a move which shows intent that a residence shall be permanent; place of worship and club memberships; place of performance of civic duties, such as voting, jury duty, payment of personal income taxes; place of bank account; jurisdiction where automobile is registered and the State of issuance of a driver's license. ( 141 AD2d at 40). In addition, the court must be mindful that an existing domicile is presumed to continue absent sufficient evidence that an intentional change to same has been made ( id.).
Here, Wife was born, raised and educated in New York, including her attendance at law school. She spent her early adult years in New York as well, was admitted to the New York bar and worked in New York during her initial employment as an attorney. She has voted in New York, filed New York state and federal tax returns, continually maintained two bank accounts in New York, maintained her New York State driver's license and purchased in Brooklyn, New York — with Husband — the only residence she has ever owned. She lists the Brooklyn home as her "permanent address" as part of her United Nations profile. Although she resided in various locations in Israel and Lebanon during the parties' marriage and was employed with some regularity while living in Lebanon, there is no evidence that Wife intended to make any of these jurisdictions her new domicile or intentionally ceased to consider New York to be her permanent home. Rather, such residences were primarily chosen as temporary homes for the parties based upon geographic necessity while Husband continued his well-established diplomatic career in the Middle East. "Keeping in mind that the durational residency requirements were enacted to preclude the use of our courts in matrimonial proceedings by spouses with no real ties with New York, who would flock here for the sole purpose of obtaining matrimonial relief unavailable in States that had substantial interests in the marital relationship, it is clear that [Wife] does not fall within this class of spouses" ( Unamue, 141 AD2d at 41). Accordingly, the court finds that sufficient evidence exists to support Wife's compliance with the residency requirement of DRL § 230 (5) and, therefore, her complaint is not subject to dismissal based upon her alleged failure to do so.
Finally, the action is not subject to dismissal pursuant to the doctrine of forum non conveniens. "On a motion pursuant to CPLR 327 to dismiss on the ground of forum non conveniens, the burden is on the movant to demonstrate the relevant private or public factors which militate against accepting the litigation [in the New York jurisdiction]" ( Kefalas v Kontogiannis , 44 AD3d 624 , 625). Dismissal on this ground is addressed to the sound discretion of the court ( see Karella v Karella, 159 AD2d 414, 414). In determining whether dismissal on forum non conveniens grounds is appropriate, the court should consider such factors as the potential hardship on defendant, whether an alternative forum is available or not and the residency of both parties ( see Islamic Republic v Pahlavi, 62 NY2d 474, 479, cert denied 469 U.S. 1108), as well as the situs of the actionable events, hardship to potential witnesses and the burden which will be imposed on New York courts, with no one factor controlling ( see Stravalle v Land Cargo, Inc. , 39 AD3d 735 -736 [2007]). However, unless these factors weigh heavily in the defendant's favor, the plaintiff's choice of forum will not be rejected and the action will not be dismissed under this doctrine" ( Markov v Markov, 274 AD2d 870, 871).
In the court's discretion, it determines that dismissal of the instant action is not warranted on forum non conveniens grounds. Husband has traveled to New York many times and has the means and ability to do so, particularly given that he will be retiring in approximately six months time. The parties own both financial assets and real property — the Brooklyn residence — in New York. Wife and the parties' child are currently residing at the Brooklyn residence. Potential witnesses such as Husband's grown daughter and the parties' child care worker have already proffered affidavit evidence and there is no indication that either would be inconvenienced by the retention of jurisdiction by a New York court (the child care worker apparently currently resides in New York). Husband has not specifically identified any other witnesses who allegedly would face hardship if the action remains in New York ( see Wittich v Wittich, 210 AD2d 138, 139). Moreover, given the transient nature of the parties' residences throughout the Middle East, Husband has failed to demonstrate that a viable alternative forum exists other than New York, the jurisdiction which the court already has determined is properly construed as the most permanent of the parties' marital residences, thereby rendering it the "marital domicile" for CPLR 302(b) purposes, as well as the longstanding domicile of Wife. As a result, the court declines to dismiss the instant action on forum non conveniens grounds.
With respect to the pendente lite relief sought by Wife, the court finds that she is entitled to spousal support in the amount of $5,000 and child support in the amount of $2,000 per month for a combined pendente lite support award of $7,000. "The purpose of a pendente lite award is to provide a needy spouse with funds for his or her support and reasonable needs" ( Shanon v Patterson, 294 AD2d 485, 485; accord Shapiro v Shapiro, 163 AD2d 294, 296[["Pendente lite awards are designed to insure that a needy spouse is provided with funds for his or her support and reasonable needs and those of the children in his or her custody"]; see also McLeod v McLeod , 50 AD3d 979 , 979; Swickle v Swickle , 47 AD3d 704 , 704; Iannone v Iannone , 31 AD3d 713 , 714; Cooper v Cooper , 7 AD3d 746 , 747; Jordan v Jordan , 2 AD3d 687 , 688; Cohen v Cohen, 129 AD2d 550, 550). Such awards "are to be determined with due regard for the preseparation standard of living" ( Viola v Viola, 294 AD2d 493, 493-494; see also Mbanefo v Mbanefo , 60 AD3d 648, 649; Silver v Silver , 46 AD3d 667 , 668; Miller v Miller , 24 AD3d 521 , 551-522; Byer v Byer, 199 AD2d 298, 298) and in light of the respective financial conditions of the parties ( see Ferdinand v Ferdinand, 215 AD2d 350, 350). Given the interim nature of pendente lite relief, its purpose, as previously stated is, in essence, to "tide over" the more needy party during the pendency of the divorce action and not to determine the correct ultimate distribution of marital assets ( see Iannone, 31 AD3d at 714; Wolf v Wolf, 291 AD2d 491, 491; Albanese v Albanese, 234 AD2d 489, 489; Cavanagh v Cavanagh, 227 AD2d 365, 365; Fried v Fried, 225 AD2d 584, 584). In addition, "[w]hile considerations underlying the [pendente lite support] determination must be articulated, the court is not compelled to consider each factor enumerated in Domestic Relations Law § 236 (B) (6)" ( Sedlack v Sedlack, 298 AD2d 691, 692; accord Charnock v Charnock, 197 AD2d 759, 759[noting that, in issuing a pendente lite order, "(t)he court is required to set forth the factors it considered and the reasoning underlying its determination"]).
"Typically, pendente lite awards are not modified unless the payments are so prohibitive that the nonmoving spouse is prevented from meeting his or her own financial obligations" ( Viola, 294 AD2d at 494; see also Fruchter v Fruchter ,29 AD3d 942, 944; Goldstein v Goldstein, 303 AD2d 550, 550; Ryder v Ryder, 267 AD2d 447, 447; Piali v Piali, 247 AD2d 455, 456). Stated somewhat differently, the only instance where modification of a pendente lite order is appropriate is "[w]hen the support payments directed by the court are so prohibitive as to strip the payor spouse of the income and ability to meet his or her allowable expenses, [and] relief may be granted in the interest of justice" ( Fruchter, 29 AD3d at 944; accord Sedlack, 298 AD2d at 691; Ryder v Ryder, 267 AD2d 447, 447; Fascaldi v Fascaldi, 186 AD2d 532, 532; Capolino v Capolino, 174 AD2d 825, 825-826). This rationale for modification comports with the general rule that "[i]n determining the ability of the husband to provide support, the court should consider not only his income from his employment, but his actual reasonable living expenses, as well as his current debts, and whether such obligations were reasonably incurred" ( Hirschman v Hirschman, 156 AD2d 644, 645). In so doing, "[t]he husband's need to have money to live on after the payments are made must be taken into account" by the court ( id.). Absent such circumstances, however, "any perceived inequities in a pendente lite award are best remedied by a speedy trial where the financial circumstances of the parties can be fully explored" ( Valente v Valente, 269 AD2d 389, 390).
Upon review of the net worth statements of the parties, related documentation and affidavit evidence, the court determines that Wife is entitled to pendente lite spousal and child support from Husband in the aggregate amount of $7,000 monthly. It is unrefuted that Husband has a longstanding, well established career as a foreign diplomat and is remunerated for his current senior diplomatic position by an annual salary of approximately $178,917. While deductions for health and life insurance and pension contributions are taken from this income, the income is not subject to income taxes or FICA taxes. Wife, although regularly employed throughout the marriage, has nonetheless experienced gaps in said employment, particularly related to her care of the parties' young child, and her most recent salary, $60,000, was considerably less than the income currently earned by Husband. Moreover, Wife has remained unemployed during her relocation to New York and has not practiced law, the profession for which she was educated, in approximately 10 years. Most importantly, she has not worked as an attorney in the United States, generally, or the New York metropolitan area, specifically, during the parties' marriage. Accordingly, the court finds that Husband is demonstrably the monied spouse in the parties' marriage and the support amount arrived at by the court will serve the salutary purpose of maintaining the financial status quo between the parties pending resolution of the action. Although Wife's considerable education and varied work experience will, perforce, impact this court's ultimate determination at trial as to whether she is entitled to an award of spousal and child support as part of the judgment of divorce, the current financial circumstances of the parties, including Wife's consistently lesser earnings and current unemployment, as well as their pre-separation lifestyle, militate in favor of the pendente lite spousal and child support amount arrived at by the court. Such amount also takes into account that Husband is currently supporting two households, his own and that of the Wife and the parties' child, is doing so without the benefit of financial contributions of the Wife, as was the case when the parties' maintained separate households in Amman and Beirut previously, and is apparently due to retire in approximately six months at which time his salary of approximately $178,917 will be reduced to an annual pension amount of approximately $105,000. Although the parties appear to have substantial financial assets in various accounts, it is well settled that pendente lite support payments should not be made from marital property ( Azizo v Azizo , 51 AD3d 438 , 440; McInnis v McInnis , 23 AD3d 241, 242; Elkaim v Elkaim, 176 AD2d 116, 118, lv dismissed 78 NY2d 1072). Accordingly, the court has based its determination on the reasonable needs of the parties, giving due weight to their preseparation standard of living, and the ability to meet such needs for both parties' and their child from Husband's current income. Based upon similar considerations, the court also orders Husband to pay the following additional items requested by Wife: all health, life, homeowner's and auto insurance, all unreimbursed medical expenses for the parties' child, the child's private school tuition, as well as all after school and summer activities for the child.
The court declines, however, to grant Wife's application for a temporary restraining order enjoining Husband from selling, transferring, assigning, conveying, hypothecating or otherwise disposing of assets except in the ordinary course of business and for ordinary and routine living expenses. It is well settled that the court, in matrimonial actions, has the power to issue preliminary injunctions aimed at the preservation of marital assets pending equitable distribution even where irreparable harm and a likelihood of success on the merits are not demonstrated by the party seeking such relief ( see Monroe v Monroe, 108 AD2d 793, 794). However, the moving party must establish that the party to be enjoined has committed, or threatened to commit, an act which would prejudice the movant's equitable distribution claim, for instance by significantly depleting an asset or otherwise diminishing its value ( see Barasch v Barasch, 166 AD2d 399, 400; Cohen v Cohen, 142 AD2d 543, 543). Although there is some evidence of withdrawals by Husband from the parties' accounts and/or changes in amounts routinely deposited in same, the court is not persuaded that such funds are being secreted or otherwise wasted or devalued. Accordingly, the court, on the record before it, finds that such injunctive relief is not appropriate.
On the issue of attorney fees, the court finds, in its discretion, that the significant income disparity between the parties supports the payment by Husband of Wife's interim counsel fees ( see O'Shea v O'Shea, 93 NY2d 187, 193-194). DRL § 237 authorizes the Court to direct either spouse to pay counsel fees in order to enable the other spouse to carry on or defend the action as, in the Court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties. ( See DeCabrera v. Cabrera-Rosete, 70 NY2d 879). "An award of counsel fees pursuant to DRL § 237(a) is a matter within the sound discretion of the trial court, and the issue is controlled by the equities and circumstance of each particular case." ( Prichep v Prichep, 858 NYS2d 667 {52 AD3d 61}).
The court has considered the circumstances of the present case, and it is unrefuted that the Husband is the more monied spouse. As such, the Husband is ordered to pay to the Wife's lawyer $20,000 in counsel fees without prejudice to further application should circumstances warrant.
The court also finds that Wife is entitled to a temporary order of protection and exclusive occupancy of the Brooklyn residence during the pendency of this action. It is well settled that, pursuant to Domestic Relations Law § 234, "[c]ourts are statutorily empowered in a matrimonial action to award temporary exclusive possession of the marital residence to one of the parties" ( Delli Venneri v Delli Venneri, 120 AD2d 238, 240). Ordinarily, however, absent "a showing that such a directive is necessary to protect the safety of persons and property" courts should not award exclusive possession to one party, pendente lite. ( Scampoli v. Scampoli, 37 AD2d 614; see, Hite v. Hite, 89 AD2d 577; Rauch v. Rauch, 83 AD2d 847 Broadhurst v. Broadhurst, 50 AD2d 569; Heller v. Heller, 38 AD2d 526; see also, In re Cattell, 146 Ohio St 112, 64 NE2d 416; Ann.,164 ALR 321, 338.) While that is undoubtedly the general rule, the standard for granting such relief should not be so inflexible as to exclude consideration of any other circumstances which would otherwise warrant judicial intervention. The presence of domestic strife is a recognized standard for an award of temporary exclusive possession. (See, Wolfe v. Wolfe, 111 AD2d 809; see also, Yecies v. Yecies, 108 AD2d 813; Binet v. Binet, 53 AD2d 836.) Violent threats and conduct on the part of the spouse against whom such relief is sought have been deemed sufficient to warrant the award of exclusive occupancy to the moving spouse ( see Harrilal v Harrilal, 128 AD2d 502, 503).
The court possesses similar authority, pursuant to Domestic Relations Law § 252, to issue temporary orders of protection during a matrimonial action. Such orders are appropriate and may be issued without a hearing where the moving party's allegations are corroborated by the affidavits of third persons ( see Peters v Peters, 100 AD2d 900, 901) or the admissions of the allegedly offending party ( see Sherman v Sherman, 135 AD2d 806, 807).
The court recognizes that the parties present differing views and accounts with respect to Husband's alleged abusive conduct toward Wife. However, it is unrefuted that during a confrontation between the parties Husband bit Wife, causing her to sustain substantial injury necessitating medical care. Moreover, both Husband's adult daughter from his prior marriage and the parties' child care worker have submitted affidavits stating that they witnessed Husband verbally abuse Wife as well as threaten her with physical harm. There is also some evidence in the record, contained in correspondence e-mailed from Husband to his treating psychiatrist and forwarded by Husband to Wife, wherein Husband admits to "bouts of temper . . . shouting and, sometimes, more threatening behavior" towards Wife and concedes that the biting incident was "more serious," although he claims he did not intend to hurt Wife during said incident. Accordingly, the court finds sufficient corroboration to impose a temporary order of protection in this case.
With respect to temporary custody of the parties' child, a hearing is necessary to determine the appropriate arrangement pending a final custody/visitation determination. Currently, Mother has residential custody of the parties' child in Brooklyn and it is unclear to the court whether any visitation has been scheduled with respect to Husband's access to the child. "As in custody matters, the standard to be applied in visitation disputes is the best interests of the children" ( Tait v Tait , 44 AD3d 1142 , 1142-43). It is well established that "the best interests of children generally lie with a meaningful relationship with both parents" ( id. at1143). Accordingly, it is axiomatic that "a noncustodial parent should have reasonable rights of visitation, and the denial of those rights to a natural parent is a drastic remedy which should only be invoked when there is substantial evidence that visitation would be detrimental to the child" ( Matter of Thompson v Yu-Thompson , 41 AD3d 487 , 488[internal brackets, quotation marks and citation omitted]; accord Vanjak v Pesa , 26 AD3d 512 , 513; Brown v White , 3 AD3d 743 , 744; Kresnicka v Kresnicka, 42 AD2d 607, 607). Stated somewhat differently, "[i]n the absence of a pressing concern and proof that visitation is inimical to the welfare of the children, the parent to whom custody is not awarded must be granted reasonable visitation privileges" ( Katz v Katz, 97 AD2d 398, 398[internal quotation marks and citation omitted]; see also Murek v Murek, 292 AD2d 839, 840[compelling reasons and substantial evidence that visitation would be detrimental to the subject child must be present in order to deny visitation to a noncustodial parent]).
Here, Wife has presented some evidence that the child has witnessed domestic violence by Husband and has been physically brought into disputes between the parties either by being grabbed by Husband or brought into inaccessible rooms by Husband during arguments between the parties. Husband denies such allegations. Currently, Husband is separated geographically from the child and no visitation schedule is in place. It is well settled that "it is error as a matter of law to make an order respecting custody [or visitation], even in a pendente lite context, based on controverted allegations without having had the benefit of a full hearing" ( Carlin v Carlin , 52 AD3d 559 , 559). Moreover, where, as here, allegations of domestic abuse are present, such claims must be evaluated in custody/visitation determinations ( see DRL 240(1); see also Matter of Wissink v Wissink, 301 AD2d 36, 40). Accordingly, a hearing is necessary in order to establish a pendente lite custody/visitation schedule and any related relief.
As a result, the respective motion and cross motion of the parties are resolved as follows:
Husband's motion to dismiss the complaint upon the grounds of lack of personal jurisdiction, failure to state a cause of action and forum non conveniens is denied in its entirety.
Wife's cross motion for various pendente lite relief is granted, in part, as follows:
It is hereby ORDERED that Husband shall be responsible for the following expenses/payments, pendente lite:
(1) monthly non taxable spousal and child support payments to Wife, to be made on or before the 1st of each month, retroactive to the date of her application for same, giving credit for any payments voluntarily paid by Husband to Wife, in the aggregate amount of $7,000 ($5,000 spousal support, $2,000 child support);
(2) all health, life, homeowner's and automobile insurance;
(3) all unreimbursed medical expenses for the parties' child; and
(4) the child's private school tuition and expenses for after school and summer activities for the child.
(5) counsel fees payable to the wife's lawyer in the amount of $20,000 without prejudice to further application should circumstances warrant. If the counsel fees are not paid within 30 days, the clerk is directed to enter a money judgment in favor of counsel upon written affirmation. No further notice is required.
It is further ORDERED that Wife shall have exclusive possession and occupancy of the Brooklyn residence during the pendency of this action; and
It is further ORDERED that a separate appropriate temporary order of protection shall issue from this court.
It is further ORDERED that the portion of Wife's motion seeking to restrain Husband from making any and all transfers of assets during the pendency of the action is denied in its entirety.
It is further ORDERED that the parties shall appear in Part 5T on Wednesday, April 21, 2010 at 9:30A.M. to complete the Preliminary Conference, schedule a hearing on the issue of custody and parental access of the minor child, and for issuance of the order of protection.
The foregoing constitutes the decision and order of the court.