Opinion
Docket Nos. V-00566-22/22A V-00566-22/22B
10-31-2022
In the Matter of a Custody and Visitation Proceeding Under Article 6 of the Family Court Act, K.S., Petitioner/Respondent, v. E.A., Respondent/Petitioner.
Sarah Smith, Esq. for Petitioner. Jessica Evelyn Stoker, Esq. for Respondent. Erin Giangola, Esq. - Attorney for the Child.
Unpublished Opinion
Sarah Smith, Esq. for Petitioner.
Jessica Evelyn Stoker, Esq. for Respondent.
Erin Giangola, Esq. - Attorney for the Child.
Hasa A. Kingo, J.
Hon. Hasa A. Kingo, J.F.C.
The following papers numbered 1 to 22 were read on this motion to suspend visitation:
Papers: No(s). Exhibits
Amended Notice of Motion 1
Affirmation of Jessica Evelyn Stoker, Esq. in Support 2-5 A-D
Affidavit of Respondent E.A. in Support 6
Affidavit of Petitioner K. S. in Opposition 7-13 A-E
Affirmation of Sarah Smith, Esq. in Opposition 14-18 A-D
Affirmation of Attorney for the Child Erin Giangola, Esq. in Opposition 19
Affirmation of Jessica Evelyn Stoker, Esq. in Reply 20
Affidavit of Respondent E.A. in Reply 21-22 E
In this custody and visitation proceeding brought under Article 6 of the Family Court Act, respondent E. A. ("Respondent") moves pursuant to CPLR § 510 to change the venue of this action from this court to Suffolk County Supreme Court, for an order directing the Clerk of the Court to transfer the file accordingly, and for such other and further relief as the court may deem just and proper. Petitioner K. S. ("Petitioner") and the Attorney for the Child ("AFC") oppose the motion. After review of the motion papers and exhibits cited above, procedural history, and court-maintained audio recordings of the proceedings, the motion is granted.
Background
Petitioner and Respondent are the parents of one child, born June 7, 2012 (the "child"). Pursuant to a Judgement of Divorce entered in Suffolk County Supreme Court (Index no. 7301/2014) on December 15, 2016 (the "Custody Order"), Petitioner has residential custody of the child and the parties share joint legal custody. On January 25, 2022, Petitioner filed a petition in this court to modify the Custody Order (Docket No. V-00566-22/22A). In the petition, Petitioner seeks an award of sole legal custody and the right to relocate with the child to Thailand, where Petitioner's husband works six months per year. Petitioner alleges, inter alia, that there has been a significant change in circumstances because Respondent failed to abide by the terms of the Custody Agreement by refusing to participate in the child's educational and medical care and refuses to cooperate in obtaining a passport for the child. With leave of the court, Petitioner filed an amended petition on October 13, 2022 wherein she lists a new home address located in North Carolina and seeks leave to relocate with the child to North Carolina rather than Thailand.
The first appearance was held in this court before the undersigned on April 28, 2022. Petitioner and counsel for both parties attended and the attorney for the child was appointed on the record. During the appearance, counsel to Respondent made an oral application to dismiss the petition or change the venue to Suffolk County Supreme Court. Brief oral arguments were heard and the court directed Respondent's counsel to file a written motion for the requested relief. At this appearance, the court also issued an order for the Administration for Children's Services ("ACS") to conduct a court ordered investigation and the case was referred to the court's mediation program. Thereafter, the parties participated in mediation, which ended without an agreement.
The court attorney to the undersigned held conferences with the parties and their counsel on June 9, 2022, August 15, 2022, and October 14, 2022. At the June 9, 2022 conference, the court attorney advised counsel to Petitioner that any motion to change venue should be filed expeditiously and by order to show cause. On August 12, 2022, Respondent also filed a petition to modify the Custody Order in New York County (Docket No. V-00566-22/22B). At the August 15, 2022 conference, the motion to dismiss was marked returnable on October 14, 2022 and the hearing dates were scheduled for December 5, 2022 and December 6, 2022. The instant motion was filed on August 17, 2022, amended on August 31, 2022, and marked fully submitted on October 14, 2022, following a conference with the court attorney.
On March 22, 2022, during the pendency of this proceeding, Respondent filed a motion, brought by order to show cause, in the Suffolk County Supreme Court action to modify the Custody Order by granting sole legal and residential custody of the child to Respondent. The motion also sought leave to enroll the child in school on Long Island pending a hearing on the issue, an order restraining Petitioner from relocating her and the child's primary residence from a distance of greater than ten miles from Sayville, New York, and an order restraining and enjoining Petitioner from traveling outside of or leaving New York with the child pending a hearing (Stoker affidavit, Exhibit A). The order to show cause was signed on March 21, 2022 and granted the interim relief of restraining and enjoining Petitioner from traveling outside or leaving New York with the child pending a hearing. On April 8, 2022, Petitioner filed a motion to dismiss the Suffolk County action.
On June 13, 2022, the Suffolk County Supreme Court entered a decision on both motions pending before that court. The court's decision notes the following regarding jurisdiction:
Although the Plaintiff mother claims that this Court does not have jurisdiction to hear this matter, that assertion is clearly not true. In that that Court is the jurisdiction where the parties' judgment of divorce was granted, this Court would have jurisdiction over any modification. See Fallis v. Fallis 54 A.D.2d 683 1976. In view of the fact that the judgment of divorce was obtained in the Supreme Court, New York County, and that this is an application to modify that judgment..the application should be addressed to the court which made the original judgment and not to the Supreme Court in another county.(Stoker affirmation, Exhibits C). The order further directs, in relevant part, "[b]ased upon the conflicting affidavits regarding the requests for modification of the custodial and parenting time provisions of the parties' stipulation of settlement dated March 8, 2016, and incorporated into the parties' Judgment of Divorce, dated December 15, 2016, the motion is granted to the extent that the issue is referred to a conference" (Stoker affirmation, Exhibits C).
On August 29, 2022, an order was granted in Suffolk County Supreme Court granting Respondent temporary residential custody for the purpose of enrolling the child in school in the Huntington Union Free School District in Suffolk County. The parties thereafter participated in several court conferences and have participated in mediation in the Suffolk County Supreme Court. Another mediation conference is scheduled in Suffolk County Supreme Court on November 21, 2022.
Positions of the Parties
By this motion, Respondent moves pursuant to CPLR § 510 to change the venue of this action from New York County Family Court to the Suffolk County Supreme Court. Respondent argues that the change of venue is warranted because neither of the parties nor the child currently live in New York County, and that the convenience of witnesses and the ends of justice will be promoted by the change because the "child's school records, the people with whom the child resides and all the parties reside in Suffolk County" (Stoker moving affirmation ¶ 10).
Petitioner opposes the motion and asserts that the choice of venue was proper because she resided in New York City when the petition was filed. She also opposes the proposed change of venue because the attorney for the child has "developed a good rapport and relationship" with the child and because hearing dates are already scheduled in New York County. Petitioner attests that the child has a diagnosis of autism which will make it challenging to bond with another attorney for the child. Finally, Petitioner notes that Respondent is "extremely close friends" with a jurist who presides over a matrimonial part in Suffolk County Supreme Court and that individual was listed as a resource in the court ordered investigation and interviewed by ACS. Petitioner states that, although this individual is not the jurist assigned to the parties' Suffolk County action, she is "terrified that Respondent will attempt to use his relationship with [the jurist] to influence the [] decision in Suffolk County Supreme Court" (K.S. opp aff ¶ 18).
The attorney for the child also opposes the motion. She asserts that Respondent has availed himself of this court both by delaying filing this motion and by filing his own modification petition in this court. She affirms that she and a social worker from her office have met with and formed a bond with the child, and that a change in the attorney for the child is not in the child's best interest because an attorney for the child has not been appointed in Suffolk County.
On reply, Respondent maintains that venue in Suffolk County is correct because neither of the parties nor the child currently resides in New York County. Respondent attests that Petitioner relocated with the child to Sayville, New York in March 2022, then to North Carolina in August 2022, and the child has resided exclusively with him since July 2022. Respondent further attests that New York County is not a convenient forum because any in-person court appearances or meetings with the attorney for the child in New York County will require burdensome travel that will cause he and the child to miss work and school, respectively. He asserts that the child's diagnosis of autism requires "consistency especially when it comes to her education and structure" and that any witnesses needed to testify would be from the child's current school in Suffolk County.
Discussion
The Family Court is a court of limited jurisdiction, and "cannot exercise powers beyond those granted to it by statute" (Matter of Royster v Murray, 157 A.D.3d 701, 702 [2018]). Absent a limiting provision in the original order, the Family Court may determine an application to modify a Supreme Court order or judgment awarding custody or visitation upon a showing that there has been a subsequent change of circumstances and modification is required (FCA § 652[b]). Whereas the FCA does not specifically designate venue for an action brought pursuant to FCA § 652[b] (compare FCA § 171), the relevant provisions of the CPLR apply (FCA § 165). In a civil proceeding commenced under the CPLR, "the place of trial shall be in the county in which one of the parties resided when it was commenced; the county in which a substantial part of the events or omissions giving rise to the claim occurred; or, if none of the parties then resided in the state, in any county designated by the plaintiff. A party resident in more than one county shall be deemed a resident of each such county" (CPLR § 503[a]).
If the action is commenced in an improper venue, CPLR § 511 (a) sets forth a procedure whereby a defendant may seek a change of venue to the proper county "as of right." Where a defendant fails to timely move for a change of venue as of right, the court may nonetheless consider whether to grant the motion to change venue on a discretionary basis where "there is reason to believe that an impartial trial cannot be had in the proper county" or "the convenience of material witnesses and the ends of justice will be promoted by the change" (CPLR § 510 [2], [3]; Kurfis v Shore Towers Condominium, 48 A.D.3d 300, 300 [1st Dept 2008]). The best interests of the child being of paramount importance in custody proceedings, the Family Court may also consider any factors that impact the best interests of the child (see Carter v. Van Zile, 162 A.D.3d 1127, 1128 [3d Dept 2018]; Arcuri v. Osuna, 41 A.D.3d 841, 841 [2d Dept 2007]; see also Henry v Skratt, 11 A.D.3d 691, 692 [2d Dept 2004]["as the... petitions for modification were partially based on allegations that the father interfered with pick-ups for visitation, the mother's access to the child's public school records, and restricted telephone access to the child, all of which allegedly occurred in Richmond County, their determination will require the testimony of witnesses who live and/or work in that county"]; N.B. v T.S., 34 Misc.3d 891, 892 [Fam. Ct. Albany County 2011][CPLR § 510 (3) is "for all practical purposes, identical in meaning to Family Court Act § 174, which requires that a change of venue by supported by good cause"]).
Petitioner opposes the motion to change the venue of this proceeding primarily on the grounds that New York County is the proper venue because she resided in the county on the date that the petition was filed. Nevertheless, on a motion for a discretionary change of venue pursuant to CPLR § 510 (2) and (3), whether the proceeding was commenced in a proper county is not dispositive. Respondent attests that Petitioner relocated with the child to Sayville, New York in March 2022 (E.A. aff in support ¶ 9), then relocated to North Carolina during the summer of 2022, leaving the child in his care since this time (E.A. reply aff ¶ 5). Petitioner attests that she lived in New York County on the date that the petition was filed but did not contest Respondent's allegations regarding her relocation and her amended petition indicates her residence is now in North Carolina. Therefore, while it does appear that Petitioner was a resident of New York County at the time the petition was filed, it is evident that neither party nor the child currently reside in New York County.
Petitioner also argues that New York County is a more convenient forum because all proceedings to date have been held remotely. However, hearings in New York County are now being held in person. Whereas Petitioner has relocated out of state, New York and Suffolk County are equally inconvenient to her for the purpose of trial. Conversely, Respondent and the child currently reside in Suffolk County. Therefore, attendance at the hearing would require Respondent to travel to New York County, a drive of approximately 80 miles or between one and a half to three hours by car. The offices of the attorney for the child are located two blocks from this court, and, therefore, any in-person visits between the child and the attorney for the child would require similar travel. This travel would be borne entirely by Respondent due to the mother's absence from the state. As noted by Respondent, any witnesses seeking to testify regarding the child current school or medical treatment would similarly be required to travel to New York County (Arcuri v. Osuna, 41 A.D.3d at 841 ["Here, the convenience of the parties and the potential witnesses who can most knowledgeably speak to the children's best interests will best be served by transferring the proceeding to Otsego County"]). Any benefit to maintaining the attorney for the child who has been appointed in New York must be balanced by the need for the child to travel a long distance, possibly missing school, to facilitate any in person meetings between the two in advance of a hearing.
Furthermore, there is a risk of inconsistent rulings caused by maintaining the place of trial in New York County. Since March 2022, this case has simultaneously proceeded in two jurisdictions. The parties have participated in virtual courtroom appearances, case management conferences, and mediation in this court while also appearing for motion practice, conferences, and mediation in Suffolk County. On several occasions, the parties appeared in both jurisdictions only days apart. Additionally, the June 13, 2022 Suffolk County Supreme Court order and decision states clearly that it retained jurisdiction over the case, and that court issued substantive orders during the pendency of this proceeding, including enjoining Petitioner from removing the child from New York and granting Respondent emergency relief for leave to enroll the child in the Huntington Union Free School District in Suffolk County. Moreover, Petitioner filed a motion to dismiss the Suffolk County proceeding and that motion was denied to the extent that conferences and mediation have continued in Suffolk County and are still ongoing in that venue. This is an egregious misuse of judicial resources and creates a risk and contradictory rulings that cannot be permitted to continue.
Finally, this court acknowledges Petitioner's concerns regarding Respondent's connection to a Justice of the Suffolk County Supreme Court. Nevertheless, the report of the Justice's call with ACS is very brief and does not indicate extensive interaction with the family. This court is mindful of Petitioner's concerns, but the case in Suffolk County is not before the Justice in question and this court has every confidence that the Suffolk County Supreme Court will maintain the proper propriety and ensure an impartial hearing in that court. Petitioner's fear that this relationship may influence the outcome of the court's decision is not sufficient to overcome the balance of factors in favor of transferring the venue of this case to Suffolk County (See Cohen v Bernstein, 9 A.D.3d 573, 574 [3d Dept 2004]["Notably, mere belief, suspicion or feeling are insufficient grounds to grant a motion to change venue under CPLR § 510(2)"]).
As set forth herein, Respondent has demonstrated good cause to transfer this case to Suffolk County Supreme Court and such transfer will convenience the material witnesses and the ends of justice. Therefore, the motion is granted.
According, it is hereby
ORDERED that the motion to change venue is granted and both petitions to for modification are hereby referred to Suffolk County Supreme Court for further adjudication; and it is further
ORDERED that upon presentation of a notice of entry of this order to the clerk of the New York County Family Court, the clerk shall transfer the petitions to Suffolk County Supreme Court.
This constitutes the order and decision of the court.