Opinion
May 11, 1999
Appeal from the Supreme Court, New York County (Eileen Bransten, J.).
Defendant failed to rebut the presumption of plaintiff's continuing domicile in France ( see, Unanue v. Unanue, 141 A.D.2d 31, 38-39). There is no dispute that the parties' prenuptial agreement was executed by them in France in 1981. The prenuptial agreement, by its terms, is to be governed by the French "regime" and controlled by French law. France was the matrimonial domicile of the parties from 1981 to 1983. The children have dual citizenship, and by defendant wife's admission, the parties maintained a second residence in France which defendant frequented for substantial periods of time each year until one month prior to her commencement of the New York divorce action in 1994. The motion court's finding of defendant's dual residency has ample evidentiary support, and there is nothing in the record to raise a triable issue of fact on the matter. Defendant was personally served and fully apprised of all continuing aspects of the ongoing French proceedings. Moreover, the fact that defendant had the resources and ability to defend in France, as evidenced :by her retention of French counsel and her appearance to request an adjournment of the predivorce conciliation proceedings, reinforces the conclusion that New York public policy would not be offended by recognizing the French court's exercise of personal jurisdiction over defendant in this case, notwithstanding her calculated determination not to appear with respect to the balance of those proceedings ( see, Gould v. Gould, 235 N.Y. 14; Levy v. Levy, 185 A.D.2d 15, appeal dismissed 82 N.Y.2d 707).
Concur — Rosenberger, J. P., Nardelli, Lerner, Saxe and Friedman, JJ.