Summary
In Venizelos v. Venizelos, 216 A.D.2d 206, 629 N.Y.S.2d 218 (1st Dept. 1995), the trial court dismissed a divorce action for failure to meet the residency requirements of the Domestic Relations Law but retained jurisdiction and properly converted the action into a support proceeding under Article 4 of the Family Court Act.
Summary of this case from Dean v. DeanOpinion
June 27, 1995
Appeal from the Supreme Court, New York County (Lewis Friedman, J.).
While the court properly dismissed the divorce action for plaintiff's failure to meet the one year residency requirement pursuant to Domestic Relations Law § 230, it retained jurisdiction to determine incidental questions of support ( see, Reeves v. Reeves, 57 A.D.2d 661, 662, lv dismissed 42 N.Y.2d 802), maintenance and other expenses, and accordingly, it was not an abuse of discretion for the court to convert the action into a support proceeding under article 4 of the Family Court Act ( see, Goldman v. Goldman, 132 Misc.2d 870, affd 124 A.D.2d 1079; cf., Parker v. Mack, 61 N.Y.2d 114). The complaint and order to show cause thereafter served on defendant's attorneys described the specific nature of the relief sought, including support, maintenance, custody, fees, necessaries and injunctive relief. As defendant was thus apprised of the claims and afforded an opportunity to be heard, his due process rights were satisfied ( see, Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306).
While the award of custody pursuant to Domestic Relations Law § 75-d (1) (b) was proper, as was the award of counsel fees pursuant to Family Court Act § 438 ( see, Polite v. Polite, 127 A.D.2d 465, 467), the divorce action had been dismissed and consequently, it was error for the court to have awarded accountant and appraisal fees. Likewise the court was also divested of its authority to grant matrimonial relief in the nature of an injunction for the purposes of preserving marital assets for equitable distribution, since a support action being essentially for money only, there was no showing of immediate and irreparable injury not compensable by monetary damages ( see, Krause v. Krause, 112 A.D.2d 862, 864).
Concur — Sullivan, J.P., Rosenberger, Kupferman, Ross and Williams, JJ.