Opinion
Index No. 53747/2021
08-13-2021
C.S., Sr., Plaintiff, v. E.S., Defendant.
Fenisha Ozella Williams, Esq. Proto, Sachs & Brown, LLP Attorney for the plaintiff Donna Marie Genovese Goldschmidt & Genovese, LLP Attorney for the defendant
Unpublished Opinion
Fenisha Ozella Williams, Esq.
Proto, Sachs & Brown, LLP
Attorney for the plaintiff
Donna Marie Genovese
Goldschmidt & Genovese, LLP
Attorney for the defendant
HON. ROBERT S. ONDROVIC, J.S.C.
The defendant moves by order to show cause to dismiss the amended complaint pursuant to CPLR 3211(a) on the grounds of lack of personal jurisdiction and subject matter jurisdiction, and failure to comply with the residency requirements of Domestic Relations Law § 230, and on the ground that New York is an inconvenient forum.
The following papers were considered in connection with the defendant's motion:
PAPERS NUMBERED
Order to show cause, affidavit, affirmation, memorandum of law, exhibits A-G 1-11
Affidavit in opposition, affirmation in opposition, memorandum of law, exhibits A-E 12-19
Reply affirmation, reply memorandum of law, exhibit H 20-22
Relevant Factual and Procedural Background
On March 29, 2021, the plaintiff commenced this action for divorce and ancillary relief. In an amended complaint, the plaintiff alleged that the parties were married on September 5, 2010, in North Carolina and are the parents of two unemancipated children, one born in February 2008 and the other born in April 2012. By order to show cause entered June 21, 2021, the defendant moved pursuant to CPLR 3211(a)(2), (7), and (8) to dismiss the amended complaint on the grounds of lack of personal jurisdiction and lack of subject matter jurisdiction, and failure to comply with the residency requirements of Domestic Relations Law (hereinafter DRL) § 230. The defendant also seeks dismissal on the ground that New York is an inconvenient forum.
In an affidavit, the defendant avers that the parties were married in North Carolina and lived there until 2011, when they moved to New York. The parties remained in New York from 2011 until 2015, at which time they moved back to North Carolina. On March 21, 2019, the parties entered into a separation agreement, pursuant to which the plaintiff agreed to permit the defendant to move with the children to Florida and the parties agreed that the defendant would have sole custody of the children. According to the defendant, she lived in Florida with the children from March 2019 until around September 2020, at which time they moved to Connecticut. The children attended school virtually in Florida between September 2020 and October 2020. In October 2020, the children were enrolled in public school in West Hartford, Connecticut.
The defendant asserts that on April 19, 2021, the plaintiff refused to return the children to their home in Connecticut following a visit. That same day, the defendant, acting pro se, filed a petition in the Superior Court of the State of Connecticut (hereinafter the Connecticut court), seeking residential custody of the children and joint legal custody. The defendant emphasizes that the children's pediatrician is located in Connecticut, that their "friends, after school activities and social lives are based in West Hartford, Connecticut," and that "several of [her] relatives [are] located in Connecticut" (Defendant's Affidavit at ¶ 18). She also asserts that she resides about a two-hour drive away from her court-appointed counsel in New York and that "[i]t is a hardship to meet with her" (id. at ¶ 19).
In an affidavit in opposition, the plaintiff avers that the parties resided in New York prior to their marriage in 2010, returned to New York in 2011, where they lived for a period of four years before moving back to North Carolina, and that the parties' children were born in New York. The plaintiff notes that the defendant "filed for child support in North Carolina" and that he was ordered to pay $450 per month through the Support Collection Unit (Plaintiff's Affidavit at ¶ 5). He states that he moved to New York in February 2020 and resides with his mother in Yonkers.
The plaintiff asserts that the children stayed with him in New York from May 2020 until October 2020, and that the children attended school virtually in Florida between September 2020 and October 2020. He contends that after the children moved to Connecticut, he "had liberal access to them" and that they occasionally stayed with him "for several weeks" (id. at ¶ 8). The plaintiff states that in March 2021, the defendant informed him that she wanted to move back to Florida with the children, but he refused to consent.
The plaintiff states that he picked the children up from their home in Connecticut on April 13, 2021, after receiving a text message from the eldest child, and that the children have been residing with him since that date. The plaintiff states that the defendant is from Brooklyn and has family in New York, that New York was the matrimonial domicile of the parties for 4 years, that the defendant worked in New York during the marriage, and that she "received disability from an injury she sustained from the retirement home she worked at in New York" (id. at ¶ 24).
In a reply affidavit, the defendant insists that the children do not have "a significant connection to [New York]," that their "education, medical care, significant contacts and relationships lie in Connecticut," that she has "no connections to New York State and [has] not lived [t]here for many years," and that the marital domicile was North Carolina (Defendant's Reply Affidavit at ¶¶ 4-5, 7).
Analysis
Personal jurisdiction
"[A] New York court may not exercise jurisdiction over a non-domiciliary unless two requirements are satisfied: the action is permissible under the long-arm statute (CPLR 302) and the exercise of jurisdiction comports with due process" (Williams v Beemiller, Inc., 33 N.Y.3d 523, 528 [2019]). Due process requires that a nondomiciliary have "certain minimum contacts with [the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice" (International Shoe Co. v Washington, 326 U.S. 310, 316 [1945] [internal quotation marks and citations omitted]). "Whether the minimum contacts requirement is satisfied depends upon whether the quality and nature of the defendant's activities in New York are such that it is reasonable and fair to require him or her to defend an action in this State" (Babu v Babu, 229 A.D.2d 758, 758-759 [3d Dept. 1996]).
CPLR 302(b) provides that "[a] court in any matrimonial action 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 this state if the party seeking support is a resident of or domiciled in this state at the time such demand is made, provided this state was the matrimonial domicile of the parties before their separation, or the defendant abandoned the plaintiff in this state, or the claim for support, alimony, maintenance, distributive awards or special relief in matrimonial actions accrued under the laws of this state or under an agreement executed in this state" (emphasis added).
In this case, the defendant argues, among other things, that the plaintiff failed to demonstrate that this Court could exercise personal jurisdiction over her under CPLR 302(b) because North Carolina, and not New York, was the matrimonial domicile of the parties prior to their separation. The plaintiff argues that New York was the matrimonial domicile of the parties between 2011 and 2015, and that the Legislature declined to impose any temporal limitation on the phrase "before their separation" under CPLR 302(b). The parties disagree about whether the defendant has sufficient minimum contacts with New York to satisfy due process.
The Second Department, beginning with the case Lieb v Lieb, (53 A.D.2d 67, 72 [2d Dept. 1976]), has interpreted the phrase "before their separation" (CPLR 302[b]), as meaning "that the separation of the parties must have taken place in this State at least within the recent past or that New York must have been the place of the last substantial matrimonial domicile before the separation" (Staron v Staron, 215 A.D.2d 646, 646-647 [2d Dept. 1995] [internal quotation marks and citations omitted]; see Klette v Klette, 167 A.D.2d 197, 198 [1st Dept. 1990]; Richardson v Richardson, 58 A.D.2d 861, 861 [2d Dept. 1977]). "Domicile requires bodily presence in a place with an intent to make it a fixed permanent home" (Senhart v Senhart, 18 A.D.3d 642, 643 [2d Dept. 2005]).
In Lieb v Lieb, (supra), the parties were married in New York in 1943, resided in this state until 1957, and then moved to Virginia, where they resided until 1969. The plaintiff subsequently moved to New York and resided in this state for two years before commencing a divorce action. The defendant was a resident of France. The Second Department held that the Court lacked personal jurisdiction over the defendant since the parties had not resided in New York for 12 years prior to their separation.
In Senhart v Senhart, (18 A.D.3d 642 [2d Dept. 2005]), the parties were married in Florida in 1976, and moved from Rhode Island to Florida in 1979. The parties rented an apartment in New York in 1981, which they purchased in 1982, and the defendant maintained a home in Florida. Between 1981 and 1990, the defendant spent 12 - 25% of his time in New York. The parties' joint tax returns listed an address in Florida as their residence. The Second Department held that "[t]he evidence in the record was insufficient to show that the matrimonial domicile was ever in New York" and "the evidence showed that the defendant did not have sufficient minimum contacts with New York" (id. at 643). Similarly, in Julien v Julien, (78 A.D.3d 584 [1st Dept. 2010]), the First Department held that although the parties resided together in New York between 2001 and 2002, from 2002 until 2007, "the matrimonial domicile was Florida, where the parties jointly rented an apartment into which they moved their possessions and pets, and which was listed as their residence on federal and New York State tax returns" (id. at 584-585).
In Klette v Klette, (167 A.D.2d 197 [1st Dept. 1990]), the parties were married in New York in 1967 and resided in this state with their children until 1973, when they moved to Connecticut. In 1981, the parties entered into a written separation agreement and were divorced in Connecticut. The First Department, relying upon the Second Department's decision in Lieb, held that "[a]lthough the parties maintained a matrimonial residence here for six years, they subsequently lived in Connecticut for eight years" and "[t]he fact that defendant may have consented to and assisted in his family's move to New York is inconsequential" (id. at 198). The First Department further held that "[n]or do defendant's visits to his children, their school and therapists in this State or his occasional presence at business meetings here establish sufficient contacts with the State to justify extending in personam jurisdiction over him" (id.).
The Third Department and the Fourth Department have taken a somewhat different approach. In Levy v Levy, (185 A.D.2d 15 [3d Dept. 1993]), the Third Department observed that the First Department and Second Department have "placed a narrow interpretation of the phrase 'before their separation'," finding that "[a]s the Legislature declined to fix a specific time limit within which the parties must have been domiciled in New York before separation despite the opportunity to do so, it would be inappropriate for the judiciary to fix such a limit" (id. at 17-18). In that case, the parties were married in New York in 1970, moved to Massachusetts in 1974, and then to Texas in 1976. The parties moved back to New York in 1979, but then moved to California in 1981. The plaintiff moved back to New York with the parties' children in 1982. The defendant moved to New York in 1987, but then moved to New Jersey in 1988. In 1989, the defendant moved to Washington, where he remained. The Third Department held that the plaintiff adequately demonstrated that the defendant had sufficient contacts with New York such that "it is not unfair to require that defendant litigate this marital claim in New York" (id. at 18). The Third Department also found that "defendant, by his conduct and activities in New York including his return and his visits to his family at the family home, purposely availed himself of New York's laws, protection and benefits" (id.).
In Babu v Babu, (229 A.D.2d 758 [3d Dept. 1996]), the parties were divorced in New York in 1985, at which time the defendant left New York. The plaintiff contended that the parties resumed their status as a married couple in 1987 under the common law of Georgia. The parties resided in Kentucky and then Illinois, where the defendant remained. The plaintiff eventually returned to New York and commenced a second divorce action in December 1990. The Third Department held that "it would offend due process to subject defendant to jurisdiction since his contacts with New York with respect to the alleged marriage are so attenuated" (id. at 759).
In Paparella v Paparella, (74 A.D.2d 106 [4th Dept. 1980]), the parties were married in Philadelphia in 1949 and moved to New York that same year, where they resided until September 1975. The parties then moved to their apartment in Florida, but in November 1975, the plaintiff returned to New York. The defendant came to New York in December 1975, but stayed for only two months before returning to Florida. The parties resided in Florida from April 1976 until June 1977, during which they sold their home in New York. The parties then moved to New Jersey, however, in October 1977, the defendant returned to Florida. The plaintiff commenced a divorce action in November 1978. The Fourth Department held that "[t]here is inadequate evidence that the parties maintained an absolute and fixed intention of abandoning New York as their domicile or of making Florida their new one" (id. at 109). The Fourth Department, after noting that the parties' matrimonial domicile had been in New York for 25 years, found that "[u]nder the circumstances of this case, it would be proper to subject defendant to the personal jurisdiction of the courts of New York even had this State not been the last matrimonial domicile of the parties prior to their separation" (id. at 110). The Fourth Department interpreted CPLR 302(b) "as permitting New York to take personal jurisdiction when the parties have made their matrimonial domicile in this State at some time before their separation providing the plaintiff is a resident of New York at the time of the action, subject to constitutional due process limitations" (id. at 111).
The particular facts of the instant case are dissimilar from each of the aforementioned cases. Here, the defendant was born in New York and has relatives who reside in this state, with whom she allegedly visits. The parties resided together in New York from around 2007 until September 2010, at which time they moved to North Carolina and got married. The parties returned to New York in 2011, where they remained until 2015. The parties' two children were born in New York in 2008 and 2012. The parties moved back to North Carolina in 2015 and entered into a separation agreement in March 2019, at which time the defendant relocated with the children to Florida. The defendant avers that she has been residing in Connecticut since September 2020.
Under these circumstances, the Court finds that questions of fact exist as to whether New York can be considered the matrimonial domicile of the parties before their separation within the meaning of CPLR 302(b), and whether the defendant has sufficient minimum contacts with New York such that the assertion of jurisdiction over her will not offend traditional notions of fair play and substantial justice. Accordingly, that branch of the defendant's motion which was pursuant to CPLR 3211(a)(8) to dismiss the amended complaint on the ground of lack of personal jurisdiction is referred for a hearing.
Subject matter jurisdiction
DRL § 76 provides:
"1. Except as otherwise provided in section seventy-six-c of this title, a court of this state has jurisdiction to make an initial child custody determination only if:
(a) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
(b) a court of another state does not have jurisdiction under paragraph (a) of this subdivision, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under section seventy-six-f or seventy-six-g of this title, and:
(i) the child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
(ii) substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships;
(c) all courts having jurisdiction under paragraph (a) or (b) of this subdivision have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under section seventy-six-f or seventy-six-g of this title; or
(d) no court of any other state would have jurisdiction under the criteria specified in paragraph (a), (b) or (c) of this subdivision.
2. Subdivision one of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
3. Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination."
Home state" is defined as "the state in which a child lived with a parent for at least six consecutive months immediately before the commencement of a child custody proceeding" (DRL § 75-a[7]).
The defendant argues that this Court lacks subject matter jurisdiction because Connecticut is the home state of the children and has jurisdiction. She states that she has been residing with the children in Connecticut since September 2020, and that the children continued to attend school in Connecticut virtually after the plaintiff removed them from their home in April 2021. The defendant emphasizes that the child custody proceeding in Connecticut remains pending, that the Connecticut court did not decline jurisdiction, and that the plaintiff has not asserted lack of jurisdiction as a defense in that action.
The plaintiff argues that the children did not have a home state at the time of the commencement of this proceeding. He asserts that the children had been residing in Connecticut for less than six months when he commenced this action, that the children resided with him in New York between May 2020 and October 2020, and have been living with him since April 2021, and that the children "have family and many friends since they were young in New York" (Plaintiff's Affidavit at ¶ 11).
This Court finds that disputed issues of fact exist as to whether Connecticut may be considered the children's home state. It is not entirely clear, based on the parties' submissions, when the children began residing with the defendant in Connecticut. Although the defendant avers that the children have been residing in Connecticut since September 2020, according to the plaintiff, the children did not begin residing with the defendant in that state until October 2020, which was less than six months before the plaintiff commenced this action on March 29, 2021 (see Matter of Intriago v Diaz-Garcia, 147 A.D.3d 1054, 1055 [2d Dept. 2017]; Matter of Destiny EE. [Karen FF.], 90 A.D.3d 1437, 1440 [3d Dept. 2011]). In addition, although there is no indication that the Connecticut court has declined to exercise jurisdiction over the child custody proceeding commenced by the defendant in April 2021, the parties' counsel advised the Court during oral argument that the Connecticut court is awaiting a determination from this Court before moving forward with that proceeding.
The Court also finds that questions of fact exist as to whether the children "have a significant connection with this state other than mere physical presence" and whether "substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships" (DRL § 76[1][b][i], [ii]). "Such a connection exists only when the forum in which the litigation is to proceed has optimum access to relevant evidence" (Matter of Mark B. v Tameka D., 183 A.D.3d 1038, 1039 [3d Dept. 2020]).
Here, both children were born in New York; they resided in this state for a significant period of time during the parties' marriage; they resided with the plaintiff between May 2020 and October 2020; and, according to the plaintiff, had liberal visitation with him thereafter and have a strong support network of family and friends. Nevertheless, the children attended school virtually in Florida between September 2020 and October 2020, while they were residing in New York; the children have been attending school in Connecticut since October 2020; and, according to the defendant, the children's medical providers are in Connecticut, they have family in Connecticut, and their "friends, after school activities and social lives are based in West Hartford, Connecticut" (Defendant's Affidavit at ¶ 18).
Under these circumstances, further proceedings are necessary to determine whether this Court has jurisdiction to make an initial custody determination under DRL § 76(1)(b).
Although not raised by the parties, it should be noted that although the children resided in Florida with the defendant for more than a year, and continued to attend school in Florida virtually until October 2020, Florida cannot be considered the children's home state under DRL § 76(1)(a) when this action was commenced because no parent continued residing in that state (see Matter of Destiny EE. [Karen FF.], 90 A.D.3d at 1440]). Finally, although the plaintiff asserts that an order of child support was issued in North Carolina in 2019, the Court has not been provided with a copy of that order. Nevertheless, it is undisputed that neither party nor the children reside in North Carolina (see DRL § 76-b).
Inconvenient forum
DRL § 76-f(1) provides that, "[a] court of this state which has jurisdiction under this article to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum." "Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction" (DRL § 76-f[2]). "A court of this state may decline to exercise its jurisdiction under this article if a child custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding" (DRL § 76-f[4]).
Inasmuch as this Court has not yet determined whether it has jurisdiction to make an initial custody determination, that branch of the defendant's motion which was to dismiss the amended complaint on the ground that New York is an inconvenient forum is also referred to a hearing, at which the parties may submit any additional information regarding the factors set forth in DRL § 76-f(2)(a)-(h).
DRL § 230
"The durational residency requirements of [DRL] § 230 go to the substance of a cause of action for divorce, which a plaintiff must allege and prove, rather than to the court's subject matter jurisdiction" (Black v Black, 108 A.D.3d 842, 843 [3d Dept. 2013]; see Lacks v Lacks, 41 N.Y.2d 71, 73 [1976]; Casey v Casey, 39 A.D.3d 579, 580 [2d Dept. 2007]). In this action, the plaintiff seeks a no-fault divorce pursuant to DRL § 170(7). In the amended complaint, the plaintiff alleged, inter alia, that the marital relationship had irretrievably broken down for a continuous period of more than six months. The plaintiff also alleged that the cause occurred in New York and that the plaintiff has been a resident of this state for a continuous period of at least one year immediately prior to commencing the action.
Even assuming that the alleged ground for divorce, to wit, DRL § 170(7), does not "constitute a 'cause' sufficient to satisfy the durational residency requirement in [DRL] § 230(3)" (Stancil v Stancil, 47 Misc.3d 873, 882 [Sup Ct NY County 2015]) - especially under the circumstances of this case, where the parties were separated in 2019 in North Carolina and have not lived together since that time - the Court finds that the parties' submissions adequately demonstrated that they resided in New York as husband and wife, and that the plaintiff has resided in New York for a continuous period of one year prior to commencing this action (see DRL § 230[2]; see generally Dubon v Drexel, - A.D.3d -, 2021 NY Slip Op 04119, *2 [2d Dept. 2021] ["(i)n opposition to [] a motion [pursuant to CPLR 3211(a)(7)], a plaintiff may submit affidavits to remedy defects in the complaint and preserve inartfully pleaded, but meritorious claims"] [internal quotation marks omitted]). Thus, this Court finds that dismissal of this action on the ground that the plaintiff failed to satisfy the residency requirements set forth in DRL § 230 is not warranted.
Accordingly, it is, ORDERED that those branches of the defendant's motion which were to dismiss the amended complaint pursuant to CPLR 3211(a)(2) and (8) on the grounds of lack of personal jurisdiction and subject matter jurisdiction, and on the ground that New York is an inconvenient forum are referred for a hearing to be held in Courtroom 1003 on August 24, 2021, at 10:00 a.m.; and it is further, ORDERED that the branch of the defendant's motion which to dismiss the amended complaint pursuant to CPLR 3211(a)(7) on the ground that the plaintiff failed to comply with the residency requirements of Domestic Relations Law § 230 is denied; and it is further, ORDERED that all other relief requested and not decided herein is denied.