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A recent win by Anne Peyton Bryant, Esq.: Issues you may face when your spouse is residing in a foreign country and you want to file for divorce?

SM v AM

[*1] SM v AM 2011 NY Slip Op 51681(U) Decided on September 14, 2011 Supreme Court, New York County Kaplan, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 14, 2011
Supreme Court, New York County

SM, Plaintiff,

against

AM, Defendant.

305927/2011

Anne Peyton Bryant, Esq. for the plaintiff

Rhonda Ores, Esq., Fox Rothschild LLP, for the defendant

Deborah A. Kaplan, J.

Recitation as required by CPLR 2219(a), of the papers considered in review of this Order to Show Cause:

PapersNumbered

Defendant’s Order to Show Cause and exhibits1, 2 EXHS A-M

Plaintiff’s Opposition and exhibits1,2EXHS A-S

Defendant’s Reply and exhibits1-3EXHS N-S

The defendant-wife (hereinafter “wife”) moves pursuant to CPLR §3211(a)(4), for an order dismissing and/or staying this action for divorce and custody based upon another divorce and custody action pending in France; pursuant to CPLR §3211(a)(2), for an order dismissing this divorce and custody action on the grounds that this court lacks subject matter jurisdiction over the custody of the parties’ child because the child’s home state is France; and for dismissal [*2]of the divorce action on the grounds that the plaintiff-husband (hereinafter “husband”) has not met the residency requirements for jurisdiction in New York. The husband opposes the motion.

Background

The parties were married in Paris, France on September 18, 2007. Both are British residents and were residents of France at the time of the marriage. Prior to marrying, they entered into a prenuptial agreement in France on September 10, 2007. In September 2008, the parties moved from Paris to New York, after the husband was offered the position of art director at Vogue Magazine. The wife, who had been working as a manager of communications for a fashion company in Paris, resigned that position in order to go to New York with the husband. Shortly after moving to New York, the wife obtained a job at Prada as Vice President of Public Relations. The husband lost his job at Vogue in October 2009.

The wife’s daughter from a previous relationship, now age 9, lived with the parties during their marriage. There is one child of this marriage, a boy, born on May 26, 2010. On June 25, 2010, the wife moved from New York to Paris with the parties’ child and her older daughter.

The wife filed a divorce action in France on March 22, 2011; that case is scheduled to be heard on September 13, 2011. On May 19, 2011, the husband served the wife with a summons and verified complaint in this action for divorce, which had been filed on April 26, 2011. In the instant action, the husband seeks custody of the parties’ child, child support and equitable distribution of all marital property and declaring the rights of the parties to their separate property.

Parties’ Contentions

It is the wife’s contention that the husband has never expressed an interest in their child from the time she announced that she was pregnant. She claims the husband abandoned her in New York, moving into another apartment while she was pregnant. She notes further that while the husband saw the child in July 2010 in France, he has made no effort to see or visit him since. She states that she has no objection to the husband having contact with his son, but given his behavior since she told him she was pregnant, and his voluntary absence from the child’s life thus far, his introduction to the child is a delicate matter and needs to be addressed in France where the child lives.

The husband contends that the wife fraudulently obtained a passport for the parties’ child by asking him to sign some paperwork and then having his signature notarized outside of his presence. He claims that she then took the child to live in France without his knowledge or consent. Further, the husband asserts that since the wife withdrew all of the money in their joint account, amounting to $106,308.07, he did not have the financial means to pursue her when she left New York. The husband denies that he did not want to be a father to his son and asserts that he has made efforts to see and visit the child.

Regarding the divorce action in France, the husband states that he did not acquiesce to the jurisdiction of the French court; he never agreed to proceed with the divorce in France; and, to date, he has not been properly served pursuant to the Hague Convention. He acknowledges that the parties were married in France and that they entered into a prenuptial agreement there, but he notes that the parties were not represented by counsel and the agreement was not negotiated over time. Further, he points out that neither he nor the wife is a French citizen and he does not speak French. [*3]

The wife denies that she obtained the child’s passport by fraudulent means or that she relocated to Paris without the husband’s knowledge or consent. With respect to the husband’s allegations regarding the child’s passport, the wife points out that the husband acknowledges that he signed paperwork in connection with the child at the wife’s request. As to moving to France, the wife refers to the husband’s own affidavit wherein he says that the wife told him that she was planning to move back to France, but that he didn’t believe her. She argues further that the husband’s allegations are belied also by the emails he sent to the wife on the day she left New York and upon her arrival in Paris. Regarding the husband’s claim that he has not been properly served in the French divorce action, the wife annexes to her papers an affirmation from her attorney in France stating that the husband was properly served. In addition, she notes that the husband has not asserted any objection to France’s jurisdiction in the French court.

Turning to the funds in the parties’ joint bank account. The wife states that she did not withdraw those funds and that the bank account had a zero balance by the time she closed it in January, 2010. She notes, in addition, that the only source of the funds in the account were her earnings and that she paid all of the parties’ expenses after the husband lost his job. Finally, she argues that even if the husband believes he is entitled to some portion of the earnings, he ignores the fact that he has not paid any child support to her since the child’s birth.

Discussion

Preliminarily, the court notes that while the wife moves for orders either staying or dismissing of this action pursuant to CPLR §3211(a)(4), that section permits a dismissal or a stay of an action only when the other action is pending in a New York state court, a sister-state court or any federal court. It does not allow for a dismissal in favor of a foreign country court. Rather, when a foreign country court is involved, the court must look to CPLR §220l to determine if a stay is appropriate. Pursuant to CPLR §2201, “[e]xcept where otherwise prescribed by law, the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just.” Granting a stay of an action rests with in the court’s discretion, (see, Britt v International Bus Servs, 255 AD2d 143, 144 [1st Dept 1998]) and generally, “only where the decision in one action will determine all the questions in the other action, and the judgment on one trial will dispose of the controversy in both, is a stay justified; this requires a complete identity of the parties, the causes of action and the judgment sought.” (952 Associates LLC v Palmer, 52 AD3d 236[1st Dept 2008]). While the question of which action was filed first must be taken into consideration by the court, the fact that an action was filed first in time will not necessarily entitle the movant to a stay. (see, e.g., ACE Fire Underwriters Ins Co v ITT Industries, Inc., 44 AD3d 404 [1st Dept 2007]; Matter of Propulsora Ixtapa Sur, S.A. DE C.V. v Omni Hotels Franchising Corp, 211 AD2d 546 [1st Dept 1995]; Centenaro v Poliero, 24 Misc 3d 1207(a) [Supreme Court, Queens County 2009]; Rosenberg v Slotchin, 181 AD 137 [3rd Dept 1917]). However, where full and adequate relief may be obtained in each of two pending actions, the action first commenced generally should be allowed to proceed to judgment and the later action stayed. (see, e.g., Mazzariello v Walsh, 66 NYS2d 476 [Sup 1946]; Lupoli v Lupoli, 205 AD2d 595 [2nd Dept 1994]).

Under the circumstances of this case, the court finds that a stay pending the resolution of the custody action in France is warranted. The French action will address all of the custody and related issues raised in both actions and the judgment in the French court will resolve the custody controversy in both actions. Significant also is the fact that witnesses that might be [*4]called in connection to the custody issue, e.g., the child’s pediatrician, nanny and members of the wife’s family, are in France.

Moreover, the court looks to Article 5-A of the Domestic Relations Law, also known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which states that New York courts have “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 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. . . ” A child’s “home state” is defined as the state where a child has lived with a parent for at least six consecutive months immediately before commencement of a child custody proceeding. (DRL § 75-a[5]). If a parent wrongfully removes a child from a state, however, the time following the removal is considered a temporary absence. (see, Felty v Felty 66 AD3d 64 [2nd Dept 2009]; Matter of Krymko v Krymko, 32 AD3d 941 [2nd Dept 2006]; Arnold v Harari, 4 AD3d 644 [3rd Dept 2004]); see also, GS v AS. 31 Misc 3d 1233(a) [Supreme Court New York County 2011]).

Here, the husband argues that the wife obtained a passport for the parties’ child in a fraudulent manner, and unilaterally and permanently removed him to a foreign jurisdiction. Such conduct, he asserts, should not be rewarded, and, accordingly, this court should adjudicate the custody issue.

While this court makes no finding with respect to the specifics of how the child’s passport was obtained, it is clear from the evidence proffered by both parties that the husband was aware of the fact that the wife was leaving New York and going to France with the child. First, the husband acknowledges that the wife requested that he sign some papers in connection to the child and that he did so. Further support for the conclusion that the husband was aware of the wife’s plan to move to France with the child is the fact that he avers that the wife frequently “threatened me with her plans’ to leave New York even before [the child’s] birth.” While he claims not to have taken the wife’s statements seriously, he offers no credible explanation as to why he did not believe her stated intentions to be true, especially since France is the country where the parties had been married and resided and where the wife had been gainfully employed. That the husband knew that the wife intended to go to France with the child is evidenced also by the emails he sent to her, first asking her what time her flight was scheduled and telling her they would “speak later when you’re settled,” and then later, upon their arrival in France, emailing her to ask “How was [the child’s] flight?” Notable, too, is the fact that, although the wife left with the child in June 2010 and has been living with him in France since that time, the husband did not file a divorce action in New York until April 26, 2011, after the wife had filed an action in France. Although the husband attributes the delay in filing to the fact that he could not afford an attorney because he is unemployed and the wife took all of the parties’ savings, since he remains unemployed, it is unclear what has changed and why he now was able to file this action.

Accordingly, the court finds that it does not have jurisdiction over custody of the parties’ son pursuant to the UCCJEA.

Based on the foregoing the court grants the wife’s application to stay the custody proceedings in this court pending the resolution of the French action.

However, the court declines to grant a stay of the husband’s action for a judgment of divorce and for equitable distribution. [*5]

Contrary to the wife’s assertions, the court finds that the husband has met the durational residency requirements set forth in DRL §230. Those requirements were enacted to discourage the use of this state’s courts by spouses with no substantial ties to 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. . . .” ( Unanue v Unanue, 141 AD2d 31, 40 [2nd Dept 1988]; see also, BD v AD, 26 Misc 3d 1215(a) [Supreme Court, New York County 2009]; Kramer v Paronen, 13 Misc 3d 1235(a) [Supreme Court, New York County 2006]). Whether a plaintiff satisfies the residency requirement of DRL §230 is a substantive element of the cause of action that must be alleged and proven by the plaintiff. (Lacks v Lacks, 41 NY2d 71 [1976]). In order to establish residency for purposes of DRL §230, there must be proof that a person dwelled in New York continuously for the statutory period immediately prior to the commencement of an action for divorce or proof that a person was continuously domiciled in New York for that period. (Esser v Esser, 277 AD2d 926 [4th Dept 2000]; Bourbon v Bourbon, 259 AD2d 720 [2nd Dept 1999]; Unanue v Unanue, supra; Capdevilla v Capdevilla, 149 AD2d 312 [1st Dept 1989]; Wittich v Wittich, 210 AD2d138 [1st Dept 1994]).

A determination of whether a party has established residency — as opposed to domicile — depends upon “whether [the party] has a significant connection with some locality in the State as the result of living there for some length of time during the course of a year” (Wittich v Wittich supra at 139, citing Antone v General Motors Corp., 64 NY2d 20, 30 [1984]). In other words, if a party establishes that he or she has lived in New York with a “substantial degree of continuity and permanence,” the residency branch of the test is met. Wittich, supra. The fact that a person has more than one residence does not compel a different result; if there is proof that the party maintained a residence in New York and returned to that residence with regularity, the durational residency requirement will be satisfied. (Davis v Davis, 144 AD2d 621 [2nd Dept 1988]; see also, Jindal v Jindal, 54 AD3d 605 [1st Dept 2008] ).

Domicile, on the other hand, is defined as the place where the parties lived together as husband and wife with the intention of making it their fixed and permanent home,( see, Esser v Esser, supra; Cocron v. Cocron, 84 Misc 2d 335 [Supreme Court, Kings County 1975]) and is controlled by the subjective intent of the party claiming domicile. Guedes v Guedes, 45 AD3d 533 [2nd Dept 2007]; Unanue, supra). Once domicile is established in New York, it is not lost by a party’s temporary absences from the state, but is presumed to continue. Therefore, where the evidence establishes the existence of a New York domicile, the burden of proving a change of domicile is on the party alleging that such a change has occurred. Unanue, supra.

In order to satisfy DRL Section 230 on a domicile basis, evidence of the following circumstances is relevant: “a place of residence in the state of alleged domicile; length of time of residence, location of schools attended by the children; leasing, buying negotiating for or a building a home; declarations, oral or written, made at the 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.” Unanue, supra at 40.

Here, there can be no doubt that the parties – if they weren’t New York domiciliaries – certainly resided in New York as husband and wife. They moved to New York in 2008 so that the husband could accept a position as an art director and thereafter, they lived and worked here and sent the wife’s daughter to private school here. To date, the husband, notwithstanding his [*6]extended trips to Europe, resides in New York; he maintains a residence here and returns to it with frequency and regularity. Indeed, there is no evidence that he has any other residence.

Moreover, in denying the stay with respect to the husband’s application for a judgment of divorce and equitable distribution of marital property, the court notes that when the parties entered into a prenuptial agreement in France, neither was a French citizen. Nor does the husband, who does not speak French, currently reside in France. Notable also is the fact that the wife’s divorce petition does not appear to address the question of the distribution of marital assets, relief sought by the husband in his action. Specifically, the husband seeks the distribution of funds allegedly held jointly by the parties in a Chase Manhattan Bank account when they lived together in New York. Finally, that the wife’s action was filed prior to the husband’s, does not require that the application for a stay of the instant action be granted. The husband’s action was filed shortly after the wife’s, and, in any event, as discussed above, the question of who filed first is not dispositive when considering whether or not a stay is warranted.

Based on the foregoing, the court will retain jurisdiction over the judgment of divorce and the husband’s application for equitable distribution.

Therefore, upon the facts presented and the applicable law, it is hereby:

ORDERED, that the wife’s application for a stay of the New York divorce action is granted to the extent of staying the custody and custody related issues pending a resolution of the French action; and it is further

ORDERED, that the wife’s application for a stay of the New York divorce action is denied to the extent that this court will retain jurisdiction over the husband’s application for a judgment of divorce and for the equitable distribution of marital property; and it is further

ORDERED, that counsel for the wife is directed to serve the within order, with Notice of Entry, within ten (10) days of entry, upon counsel for the husband; and it is further

ORDERED, that the parties shall appear for a Preliminary Conference on November 16, 2011, in Part 20, New York State Supreme Court, 60 Centre Street, Room 540, New York, New York.

This constitutes the decision and order of the court. All further requested relief not specifically granted is denied.

ENTER

_________________________________

HON. DEBORAH A. KAPLAN

J.S.C.

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