Opinion
350063/2019
03-02-2020
Maxwell FEDERBUSH, Plaintiff, v. Nishita SHAH, Defendant.
Counsel for Plaintiff: BERNARD E. CLAIR, Esq., BENJAMIN MOORE, Esq., Cohen Clair Lans Greifer Thorpe & Rottenstreich LLP, New York Counsel for Defendant: MARILYN B. CHINITZ, Esq., JENNIFER LOMBARDO, Esq., ORY APELBOIM, Esq., Blank Rome, LLP, New York Counsel for the Child: NICOLE RIORDAN, Esq.
Counsel for Plaintiff: BERNARD E. CLAIR, Esq., BENJAMIN MOORE, Esq., Cohen Clair Lans Greifer Thorpe & Rottenstreich LLP, New York
Counsel for Defendant: MARILYN B. CHINITZ, Esq., JENNIFER LOMBARDO, Esq., ORY APELBOIM, Esq., Blank Rome, LLP, New York
Counsel for the Child: NICOLE RIORDAN, Esq.
Douglas E. Hoffman, J.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 11, 13, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46 were read on this motion to/for DISM ACTION/INCONVENIENT FORUM.
This matrimonial action comes before the court upon motion by defendant-wife Nishita Shah ("Wife" or "Defendant") for an order dismissing the instant matrimonial action except for the custody and child support causes of action based upon a prior pending action or, alternatively, on forum non conveniens grounds. The parties have commenced at least three lawsuits in 2019: Wife filed a Hague petition in the United States District Court for the Southern District of New York in May 2019, seeking a declaration that the parties' son [redacted * * *] (DOB [redacted * * *] ) is habitually resident in Thailand, where he spent the first five of his then six and a half years, that the defendant, Maxwell Federbush ("Husband" or "Plaintiff" herein), improperly retained [the child] in New York in contravention of Wife's custodial rights, and an order directing the child's immediate return to Thailand. In August 2019, at the conclusion of the Hague trial, but prior to the federal court issuing its decision, Wife filed for custody and divorce in Thailand. On October 9, 2019, the United States District Court issued its decision and order in the Hague case, dismissing Wife's action, finding instead that the child is habitually resident in New York, and that Husband did not illegally interfere with Wife's custodial rights. [NYSCEF doc. 26]. On or about October 11, 2019, Husband filed this action, seeking a divorce pursuant to DRL § 170(7) (irretrievable breakdown in the relationship) and ancillary relief, including custody, child support, and equitable distribution (together with a request for a declaration that the parties' alleged March 19, 2012 prenuptial agreement is "unenforceable"). [NYSCEF doc. 23, Summons with Verified Complaint]. Prior to the parties' first scheduled appearance, both parents filed emergency motions on December 23, 2019 regarding, in part, parental access during the following week's school vacation. Wife acknowledged that the courts of this state are the appropriate forum to decide issues of parenting time and custody.
Husband filed a cross-motion on an emergency basis on February 5, 2020, seeking an order of this court enjoining Wife from proceeding with the action in Thailand and, in particular, from "providing any ‘evidence’ relative to a Prenuptial Agreement dated March 19, 2012. [NYSCEF doc. 31, Husband's Notice of Cross Motion]. All counsel and Husband appeared on the emergency return date, Monday, February 10, 2020, at which appearance the court declined to grant Husband's request to restrain and enjoin Wife from proceeding in the Thai litigation, [2/10/2020 transcript], with the instant written Decision and Order, including determination of Wife's requested relief, to follow.
Background:
The parties married in Thailand on March 19, 2012, at a time when the parties were already living together in Thailand and Wife was approximately seven months pregnant. They allegedly signed a prenuptial agreement on that same date, March 19, 2012. The uploaded copy of the prenuptial agreement provided to this court includes alternating paragraphs in English and apparently in the Thai language. [NYSCEF doc. 24, 27]. Although Husband asserts that he is not fluent in the Thai language, the prenuptial agreement, assuming its authenticity, states that if there is a conflict, the English language version will control. [Id. at D.] The prenuptial agreement states that it is subject to Thai law. The prenuptial agreement provides, in relevant part, that the parties intend to keep their property and debts separate, with each maintaining his or her own property. It appears to have been signed by the parties and witnesses.
As noted, the parties married on the same day, in Thailand. The parties decided that their child would be born in Canada, and their son [redacted * * *] was born * * * in Canada. Husband is a United States citizen, Wife is a citizen of Thailand and Canada, as well as an "overseas citizen of India." [Wife aff., NYSCEF doc. 11]. The parties' child is a citizen of all the countries that his parents are citizens. [Id. ] Soon after [redacted * * *] birth, the family returned to Thailand, where they lived for five years, until August 2017.
In August 2017, Husband, Wife, and son came to New York. Wife is not a citizen or permanent resident of the United States. "One new point of contention that arose after the move was that Ms. Shah could spend only a limited number of days in the United States under the terms of her visitor's visa and before being subject to U.S. taxes—a number the couple closely tracked." [NYSCEF doc. 26, Hague decision at 4-5]. The parties physically separated during their summer 2018 vacation in Thailand. [Id. ] Thereafter, they returned to New York, and each side retained New York-based matrimonial counsel.
The family's relocation to New York became the subject of Wife's Hague petition, filed in the Unites States District Court for the Southern District of New York, in May 2019. The Hague trial was held in August 2019, and a decision was issued October 9, 2019, finding that the "parties both intended that [the Child] would reside in New York. The parties moved there together. And the parties established a locus of family life, schooling, friends, possessions, and expectations in New York. New York, by all indications—including the parties' last shared intent—is where the Child usually and customarily lives. In short, Petitioner has failed to satisfy her burden of proving, by a preponderance of the evidence, that Thailand is [the child's] habitual residence" [NYSCEF doc. 26 at 19, Hague decision]. In the instant action, Wife now concedes that this court has jurisdiction over questions of custody, parenting time, and child support.
On August 22, 2019, after the Hague testimony concluded, but before the Hague decision was issued, Wife filed for divorce in Thailand. That petition was focused on the custody aspects, and included a section entitled "No Marital Property," citing and apparently attaching the prenuptial agreement. The petition did not, however, explicitly state that Wife is seeking to enforce the prenuptial agreement. Husband does not submit any affidavit of Thai counsel, including one that could, if appropriate, explain that such an affirmative request or notice to enforce the prenuptial agreement would be required in addition to the statements regarding "no marital property" citing to the prenuptial agreement and attaching it. The Thai petition does not appear to specifically seek any affirmative financial relief, other than for Husband to pay "costs" of the court proceeding (the August 2019 Thai petition does affirmatively seek custody of the child and a divorce).
The Thai petition also included a notice in English (and perhaps in Thai, according to the translation stamp) addressed to Defendant-Husband in that action: "Therefore, you are required to submit an Answer to the Complaint to the Court within 15 days from the date you receive, or are deemed to have received, this Writ of Summons. The Court hereby fixes the date of settlement of issues, the date to plan a direction to proceed with the case or to examine the Plaintiff's witness(es), to be on December 3, 2019, at 9.00 hrs." [NYSCEF doc. 11 at 73].
The Thai petition was apparently served on Husband by overnight mail sent via the Thai courts on September 24, 2019. Wife's Thai counsel filed an affirmation on this motion, explaining the relevant Thai service provisions, and attaching the apparently relevant statutes in both Thai and certified English translations, stating that service was sufficient on September 24, 2019. [NYSCEF doc. 34]. The Thai petition was also personally served on Husband on October 25, 2019.
Husband filed the instant New York action on October 11, 2019, and Wife's counsel accepted service on Wife's behalf on December 19, 2019. By their affirmations, both sides seem to agree that Husband has not appeared in the Thai action (at least not on or before the February 10, 2020 return of this motion), either personally or by counsel, has not filed an answer, and did not participate in the December 3, 2019 appearance. In addition, it also appears that Husband has not filed any papers in the Thai action, including any limited appearances regarding jurisdiction or for an extension of time to answer or otherwise, if such actions are permitted under Thai law.
Both parents filed emergency Orders to Show Cause in this court on December 23, 2019, and appeared before a different Justice of the Supreme Court on that date, focusing mostly upon the child's then-upcoming winter-holiday school vacation, and both parties' parenting access during that vacation. Wife has stated in this court that due to United States visa and immigration issues, she travels back and forth between New York and Thailand, although everybody is apparently trying to work out a parenting solution. Continued parenting time and legal decision-making has been and will continue to be addressed by this court, and is not the subject of this emergency application.
Wife filed an amended complaint in the Thai action on or about January 23, 2020, a copy of which was provided to counsel in this action on January 28, 2020 with a certified English translation. In that amended complaint, Wife purports to withdraw her custody claims (as the court and all parties previously discussed on the record in this action), and apparently expands on the "no marital property" section of the August 2019 Thai complaint to explicitly request enforcement of a prenuptial agreement.
In his cross-motion papers, Husband alleges that:
1. He did not have prior notice until the January 2020 amended Thai complaint that the Thai proceeding would include wife's prenuptial claim, rather than just custody and divorce.
2. He does not remember signing the alleged prenuptial agreement, although he may have, in the "stack" of papers he was asked to sign on their Thai wedding day in 2012, which took place one day before the last day that Wife, who was approximately seven months pregnant, could fly to Canada.
3. He is concerned that the alleged prenuptial agreement is not authentic, and that his New York counsel has not been provided with an original of the prenuptial agreement for evaluation, despite numerous requests.
4. Husband is also concerned because Wife's father "carries enormous influence in Thai society" and "[Husband's] chances of receiving a just hearing on the claims set forth in the Thai Action are minimal as compared to proceeding before this Court." [H aff., NYSCEF doc. 19]. For this last part, Husband cites only his own belief as the basis for this proposition.
Wife submits an affirmation of Thai counsel, attaching potentially relevant statutes in the Thai and English languages.
Analysis
Standard to Enjoin a Litigant from Proceeding in a Foreign Court
In Arpels v. Arpels (8 NY2d 330 [1960] ), the Court of Appeals denied a wife's application to enjoin her husband from suing her for divorce in France, stating:
The use of the injunctive power to prohibit a person from resorting to a foreign court is a power rarely and sparingly employed, for its exercise represents a challenge, albeit an indirect one, to the dignity and authority of that tribunal. Accordingly, an injunction will be granted only if there is danger of fraud or gross wrong being perpetrated on the foreign court. Furthermore, where a foreign divorce is sought, our courts will intrude, even if a serious impropriety would be involved in its procurement, only when the ensuing decree would be entitled to full faith and credit in this State. Id. at 341-342.
As another Justice of this court held, in not enjoining a matrimonial action in Moscow, Russia, the Arpels "court went on to explain that, because a French divorce judgment is not entitled to full faith and credit, an injunction did not lie," and applied the same result in that case. MK v. NK , 24 Misc. 3d 1213(A), 899 N.Y.S.2d 61 (Sup. Ct., NY County, 2009).
Similarly, in 2011, in denying to enjoin a Singapore divorce (or even just the maintenance-seeking provisions thereof), even in the face of a New York-signed prenuptial with a New York-choice of law provision, which waived maintenance, citing Arpels , the court added that "an injunction will be granted only if there is danger of fraud or gross wrong being perpetrated on the foreign court. Furthermore, where a foreign divorce is sought, our courts will intrude, even if a serious impropriety would be involved in its procurement, only when the ensuing decree would be entitled to full faith and credit in this State. There is no evidence that a fraud is being committed on the Singapore court. The divorce action lies in Singapore, not in New York. Moreover, Singapore has been made aware of the Antenuptial Agreement and is in a position to rule on the validity of that agreement. Thus, the court finds no bad faith in the Wife having filed a divorce action in Singapore. The question remains whether the Wife sought to evade New York law by seeking maintenance in the Singapore divorce action. In the absence of evidence that a foreign action was brought in bad faith, for the purpose of evading New York law, or motivated by fraud or an intent to harass, injunctive relief limiting the authority of the foreign court is not warranted." Meng v. Allen , 31 Misc. 3d 1211(A), 927 N.Y.S.2d 817 (Sup. Ct., NY County, 2011).
The same high Arpels standard is cited in non-divorce cases before issuing an injunction against proceeding in a foreign litigation:
The rule of comity forbids the granting of an injunction to stay proceedings which have been commenced in a foreign court of competent jurisdiction unless it is clearly shown that the suit sought to be restrained was brought in bad faith, or motivated by fraud or an intent to harass the party seeking the injunction, or if its purpose was to evade the law of the domicile of the parties. There has been no such clear showing in the instant case. Sarepa, S.A. v. Pepsico, Inc. , 225 AD2d 604, 604, 639 N.Y.S.2d 128, 129 (1st Dept. 1996) (overturning Westchester County trial court's injunction against a Spanish court).
In 2011, the Appellate Division, First Department upheld the denial of an injunction against proceeding in a British court (even though the underlying contract had a New York choice of law and choice of forum provision):
On its motion for preliminary injunctive relief, plaintiff claimed that the London action was brought solely to deprive it of a right to a jury trial, prevent it from taking depositions, and avoid punitive damages, all assertedly unavailable in the English courts. These conclusory allegations failed to establish that the London action was brought in bad faith, for the purpose of evading New York law, or motivated by fraud or an intent to harass. Sebastian Holdings, Inc. v. Deutsche Bank AG , 78 AD3d 446, 446—47, 912 N.Y.S.2d 13, 14—15 (1st Dept. 2010) (citing Sarepa, S.A. v. Pepsico, Inc. , 225 AD2d 604, 639 N.Y.S.2d 128 (1st Dept. 1996) ), lv denied 91 NY2d 801, 666 N.Y.S.2d 563, 689 N.E.2d 533 (1997).
One of the few divorce cases where such an injunction was granted is Hon v. Hon , 164 Misc 2d 806, 807, 624 N.Y.S.2d 553, 554 (Sup. Ct., Queens County 1995), where husband brought the New York action, and then, three years later, without seeking to withdraw that action, same husband also filed an action in Connecticut, "What is being challenged here, therefore, is not the dignity and authority of the Connecticut court, but of this court." Id.
The ultimate issue in this case may come down to one of comity. Assuming that Husband does appear in Thailand, if there are "extrinsically" fraudulent acts in the procurement of the judgment, he may have remedies here, see Altman v. Altman , 150 AD2d 304, 306—07, 542 N.Y.S.2d 7, 9 (1st Dept. 1989) (upholding bilateral Dominican Republic divorce where there was no "extrinsic fraud"):
Under the doctrine of comity, full faith and credit will be accorded to a judgment of a foreign country unless it is established that the judgment is violative of a strong public policy or has been procured by extrinsic, as opposed to intrinsic, fraud. The distinction between extrinsic and intrinsic fraud is defined as follows:
Intrinsic fraud is fraud which goes to the existence of a cause of action, and is held to be no defense. The American courts hold that a foreign judgment cannot be attacked on the ground that it was procured by false testimony. The fraud which will be available to a [party] in his attack upon a foreign judgment, in the main, is fraud which has deprived him of the opportunity to make a full and fair defense. There are many varieties of such fraud. Thus, where the defendant failed to present his case because the plaintiff agreed to drop the suit or to compromise the case or notify the defendant that the proceeding had been dismissed, or by any other agreement or promise lulled the defendant into a false security, the judgment may be attacked by the defendant. Thus, extrinsic fraud "must be in some matter other than the issue in controversy in the action".
In the case at bar, plaintiff has offered no proof of extrinsic fraud. Rather, her claims are of fraud in the negotiation of the separation agreement, and therefore involve "the issue in controversy," and not a deprivation of the opportunity to make a full and fair defense. [The] "alleged misrepresentations of ... financial status are ‘in essence no different from any other type of perjury committed in the course of litigation’, and thus constitute intrinsic fraud [citation omitted]". For these reasons, we conclude that plaintiff's claim of alleged fraud in the negotiation of the separation agreement is a legally insufficient basis, irrespective of its merit or lack thereof, to set aside, or deny comity to, the Dominican judgment of divorce. Altman v. Altman , 150 AD2d 304, 306—07, 542 N.Y.S.2d 7, 9 (1st Dept. 1989) (citations omitted).
The Appellate Division, Second Department explained the standard for recognizing foreign divorces under the principles of comity, in upholding a divorce obtained in Abu Dhabi when the parties resided there, based in part on an Islamic mahr agreement signed in New York:
Although not required to do so, the courts of this State generally will accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of our sister States. Comity should be extended to uphold the validity of a foreign divorce decree absent a showing of fraud in its procurement or that recognition of the judgment would do violence to a strong public policy of New York. Moreover, in extending comity to uphold the validity of a foreign divorce decree, New York courts will generally recognize all the provisions of such decrees, including any agreement which may have been incorporated therein, unless modification is required by reason of some compelling public policy.
Here, the mahr agreement, although not acknowledged in accordance with Domestic Relations Law § 236(B)(3), was signed by the parties and two witnesses, as well as the Imam of the Islamic Cultural Center of New York. Under the circumstances presented, the Supreme Court properly recognized so much of the foreign judgment of divorce as incorporated the mahr agreement under the principles of comity, as no strong public policy of New York was violated thereby. Accordingly, the court properly granted that branch of the plaintiff's motion which was to enforce so much of the judgment of divorce as awarded the plaintiff the sum of $250,000 pursuant to the mahr agreement. Badawi v. Wael Mounir Alesawy , 135 AD3d 792, 793, 24 N.Y.S.3d 683, 684—85 (2d Dept. 2016).
In a non-divorce context, Husband's counsel cites Citigroup Glob. Markets, Inc. v. Fiorilla , 151 AD3d 665, 54 N.Y.S.3d 586 (1st Dept. 2017), which did not grant comity to a decision from France, where the New York court previously vacated a New York judgment enforcing an arbitral award; nevertheless, the other side moved in France to enforce the award, even after the New York vacatur and without notifying the French court that the New York award was vacated, to enforce that already-vacated award:
"The [New York] court properly enjoined respondent from enforcing the vacated award, including in France, in the interests of protecting the New York judgment on the merits. The record demonstrates that respondent commenced the French proceeding in bad faith. The court properly declined to apply the doctrine of comity to the French court's recognition of the vacated award." Id., citing Sebastian Holdings, Inc. v. Deutsche Bank AG. , 78 AD3d 446, 446-447 (1st Dept. 2010).
Husband also alleges that he did not have notice that Wife's Thai lawsuit would include enforcement of the alleged prenuptial agreement (as opposed to "only" a divorce and the since-withdrawn custody issues). The August 22, 2019 Thai complaint does mention the prenuptial agreement in several places in the recited facts section, including that the parties had a previously scheduled 2010 Istanbul, Turkey wedding ceremony, before which Ms. Shah's father apparently required a prenuptial agreement, which Mr. Federbush refused to sign at that time. The August Thai complaint also stated that Ms. Shah's father apparently required a prenuptial agreement in 2012, at which time both parties did sign it, specifying that the personal property of each would be separate and no marital property would be acquired. The August 22, 2019 Thai complaint also includes a section titled "5. Marital property" :
The Plaintiff and the Defendant have not acquired any marital property, under the Prenuptial Agreement dated March 19, 2012 in which the Plaintiff and the Defendant entered into at Wattana District Office. Pursuant to the Agreement, both parties agreed that during their marriage, all the property and debts acquired by either party shall be the personal property of each party. The details are evidenced by a copy of the Prenuptial Agreement, Attachment No. 8 attached to the Complaint. [NYSCEF doc. 11 at 60].
The complaint provided notice dates regarding an answer and the December 3, 2019 scheduled Thai court appearance, discussed previously.
The August Thai complaint sought "Divorce and custody," and the second complaint seeks "divorce." The January 2020 amended complaint also adds a specific and clear request - "The [Thai] Court is respectfully requested to grant Judgment ordering that there is no marital property between the Plaintiff and the Defendant due to the Prenuptial Agreement." [NYSCEF doc. 22]. Nevertheless, these allegations that there is no marital property pursuant to the prenuptial agreement were made in the August 2019 complaint.
Husband does not submit any affirmation of Thai counsel or by an expert in Thai law that the August 2019 complaint, which cited, discussed, and attached the prenuptial agreement, would not be sufficient to grant the financial relief presently sought in Thailand. Wife, on the other hand, presents an affidavit of a Thai legal expert, who states that the August complaint was sufficient under Thai law, since it states that there is no marital property under the prenuptial agreement:
As the parties' Prenuptial Agreement, which was properly registered, is presumed to be valid and enforceable under Thai law, the enforcement of that agreement was not something that Ms. Shah, as the plaintiff, was required to request as a form of relief or a claim from the court under Thai law. The valid and enforceable Prenuptial Agreement is already in effect. The resulting divorce, because there is a registered prenuptial agreement, automatically includes enforcement of such agreement (unless the defendant challenges same, which Mr. Federbush was free to do but chose not to). [NYSCEF 34, SASIRUSM B. CHUNHAKASIKARN Affirmation of at 7]
With respect to proving foreign law, CPLR § 4511(b) permits the court to take judicial notice of a law of a foreign country under certain circumstances, but courts "shall" take such notice under CPLR § 4511(b) only if "a party requests it, furnishes the court sufficient information to enable it to comply with the request, and has given each adverse party notice of his intention to request it." Wife's expert discusses, cites, and attaches substantive underlying law, both in Thai and English translation. See e.g., HSBC Guyerzeller Bank AG v. Chascona N.V. , 42 AD3d 381, 841 N.Y.S. 2d 11 (1st Dept. 2007) (upholding trial court's application of British substantive law where the parties "made substantial submissions interpreting a foreign law"); Zuckerman v. Metro. Museum of Art , 307 F. Supp. 3d 304 (S.D.NY 2018) (discussing detailed Italian law expert reports submitted by both parties, and applying New York choice-of-law test to determine whether there is a conflict between substantive Italian law as opined by the experts and New York law), affirmed without discussion of foreign law , 928 F.3d 186, 193 (2d Cir. 2019) ; see also J.B. v. M.G. , 65 Misc. 3d 1205(A) (NY Sup. Ct., NY County 2019).
In his cross-motion papers, Husband questions the validity and authenticity of the purported prenuptial agreement: "I first saw the document that has been represented to be a ‘prenuptial agreement’ after two differing copies of same were provided to my lawyers by opposing counsel on January 15, 2019 and March 15, 2019, respectfully... I have no recollection of signing what is represented in those copies, and if I did, I was never given the opportunity to review it because it was part of the two large stacks of papers that were quickly being flipped as I was told to sign or initial." [NYSCEF doc. 19, H. aff.]. Both sides submit affidavits and affirmations regarding this issue. Husband states that he does not specifically remember signing a prenuptial agreement in 2012. The wife counters by submitting a portion of Husband's August 2019 testimony in the Hague case, where he spoke about rejecting the 2010 prenuptial and acknowledged signing the 2012 prenuptial:
Q. Where did your marriage take place?
A. The original wedding was Istanbul in June 2010 . That was supposed to be the wedding, but we weren't actually legally married until March 2012.
Q. Why is that?
A. Well, we got married in turkey, which neither of us are Turkish. It wasn't—we couldn't actually be legally married there, and there were some other contretemps ahead of it.
Q. Contretemps?
A. Yes.
Q. Sorry.
A. Oui. There was a—Nish and I—there was— there was a last-minute demand to sign an unnegotiated prenuptial agreement ahead of it .
THE COURT: I take it was a demand on you, and not a demand on Nish.
THE WITNESS: A demand on me, which I refused . So we were faced with a choice. We had invited 450 people to a destination wedding. I said, you know what, that's fine. We don't have to get legally married. It doesn't matter to me. But for us it was, you know, this was the wedding. And when we finally got legally married in March 2012, it was because we were—it was the day before we were moving—it was the day before the last day Nish could fly, since we were going to Vancouver. I was very concerned that, you know, all the paperwork that was required to do—[redacted * * *] would have U.S. citizenship by birth, but you still have to register it. It's a lot of work, and I was concerned that, you know, with, if the parents were unmarried it would just make it a lot more cumbersome. Also, at the time Nish couldn't come to America, which was a big problem, and I thought that would make things more difficult too. But just ahead of that we got married. And, of course, they forced a last-minute prenup. At that point I said, you know what, I don't really care. Let's just sign it and do it.
Q. How far in advance of [redacted * * *] birth did that official—not official, but the legal marriage that you just described take place?
A. About a month and a half.
Q. And you said it was the last day she could fly I believe. Why is that?
A. I mean, the doctors won't really let you fly more than, you ...
[NYSCEF doc. 36, Hague transcript 8/8/2019 Tr. 454:7-455:22]
Husband cited the prenuptial agreement in his October 2019 Verified Complaint in this action, as part of his request for a declaration that the parties' alleged March 19, 2012 prenuptial agreement is "unenforceable." [NYSCEF doc. 23, Summons with Verified Complaint]. Husband also states that he is concerned that the alleged prenuptial agreement is not authentic, and his New York counsel has not been presented with an original of the prenuptial agreement, despite numerous requests. He also submits an affirmation of a forensic document examiner, who explains his concerns with the purported prenuptial agreement, of which he only had pdf copies, and explains the nondestructive evaluation process that he would use to examine the original.
The authenticity or any other issues related to the Thai prenuptial agreement can be litigated in Thailand, and Husband has not presented any competent evidence that the court in Thailand could not do so, if properly presented by Husband if he participated in the Thai action.
Husband's counsel states "As noted in plaintiff's previous submission to the court (Motion sequence No. 1), defendant's family is among the wealthiest in Thailand; defendant's father, in particular, carries enormous influence in Thai society. It is respectfully submitted that plaintiff's chances of receiving a just hearing on the claims set forth in the Thai Action are minimal as compared to proceeding before this Court.]" [NYSCEF doc. 18, H. atty. affir.] Husband states "defendant's father is one of the richest men in Thailand and wields immense power within Bangkok society and the Thai government." [Id. ]
Wife's counsel responds to this allegation: "Aside from lacking any scintilla of evidence, this claim is beyond repugnant, as it presupposes an inherent corruption in the Thai legal system and likewise maligns Defendant and her family, all of whom are well-regarded members of society in Thailand." .... "Plaintiff is asking this to Court conclude, without a shred of evidence, that the Thai judicial system is corrupt! That is no different than a party claiming that this Court would be biased in favor of a wealthy American litigant in a case against a foreigner." ... [Husband] "alleges that he is suddenly ‘concerned for his personal safety’ should he be required to return to Thailand (Id. ). This claim is along the same lines as Plaintiff's specious allegation that the Thai Courts are corrupt. Plaintiff fails to mention that the parties vacationed in Thailand as recently as the summer of 2018, and that his company, Dynasty Investments, is based in Vietnam and focuses on investing in ‘Vietnam and South-East Asian countries’, not to mention another company in which he is involved, Mani Mani, located in Thailand." [NYSCEF doc. 32, W. atty. reply affir.].
Without specific evidence of fraud or prejudice, this court cannot summarily decide that a foreign court cannot proceed with a "just" hearing. Again, this is an issue that may be considered if there is ultimately an issue as to whether or not this court should give full faith and credit to any order or judgment emanating from the Thai court.
As this court stated at the February 10, 2020 return date on the emergency cross-motion, there is not a sufficient basis for this court to grant the Husband's cross motion seeking an order enjoining Wife from proceeding with the Thai divorce action and in particular providing any evidence concerning the purported March 19, 2012 prenuptial agreement.
Forum Non Conveniens and Prior Filed Action
Wife's motion sought, as relevant here, by branches 1 and 2, dismissal of Husband's New York divorce action, due to the already-pending Thai action, as well as forum non conveniens, in all respects other than for issues of custody and child support:
Branch 1. Pursuant to CPLR § 327(a), dismissing, or, in the alternative, staying the instant action entitled Maxwell W. Federbush v. Nishita Shah, Index No. 350063/19 to the extent it seeks: (i) a judgment of absolute divorce against the Defendant; (ii) a declaration of the nature and extent of marital property and separate property; (iii) equitable distribution or a distributive award; (iv) an award of counsel, accounting, consulting, expert fees and any other professional fees; and (v) to set aside the parties' March 19, 2012 Prenuptial Agreement, on the grounds of Forum Non Conveniens and the pending action commenced by Defendant in the country of Thailand, to wit: Ms. Nishita Shah v. Mr. Maxwell William Federbush II, Case No. Black Yorchor Por 1450/2562, Central Juvenile and Family Court was commenced on August 22, 2019, by personal service upon the Plaintiff and service in compliance with Thailand Court Rules
Branch 2. Declaring that the jurisdiction of the Supreme Court, New York County, in this matrimonial action is limited to determination of custody and child support as to the parties' son, [redacted * * *], born [redacted * * *] (the "Child"); [NYSCEF doc. 11, Wife's Order to Show Cause].
Wife concedes that child custody is to be determined by this court, and accordingly, DRL § 76-f concerning a child custody proceeding is not relevant here. There can be a custody proceeding in one jurisdiction and a divorce action in another jurisdiction. Kilcullen v. Bubanj , 116 AD2d 470, 471 (1st Dept. 1986). The remaining forum non conveniens argument is pursuant to CPLR § 327.
Here, the parties were married in Thailand on March 19, 2012, at a time when the parties were already living together in Thailand. The parties allegedly signed a prenuptial agreement on that same date, March 19, 2012, in Thailand, which states that it is subject to Thai law. [NYSCEF doc. 24, 27]. The prenuptial agreement provides, in relevant part, that the parties intend to keep their property and debts separate, with each maintaining his or her own property. It appears to have been signed by the parties and witnesses. The parties lived the first five years of their marriage in Thailand. Husband is a United States citizen, Wife is a citizen of Thailand and Canada, as well as an "overseas citizen of India." [Wife aff., NYSCEF doc. 11]. The parties' child is a citizen of all the countries that his parents are citizens. [Id. ] Soon after the child's birth in Canada, the family returned to Thailand, where they lived for five years, until 2017. Although in August 2017, Husband, Wife, and son came to New York, Wife is not a citizen or permanent resident of the United States, and apparently, continued to go back and forth between the United States and Thailand, as she apparently does to this day. Prior to their physical separation (during their summer 2018 vacation in Thailand), the parties and child vacationed in Thailand. [Id. ].
For financial-litigation purposes, it appears that Wife (whether directly, indirectly, as a beneficiary, designee, or in some other capacity) may have substantial financial assets. Husband alleges that her family is one of the wealthiest families in Thailand. Wife asserts that she has no assets in New York. The assets are located primarily in Thailand, where, if they are to be valued at all, would need to be valued there, pursuant to Thai rules and regulations, and presumably, on the basis of Thai documents and Thai witnesses. Neither side has submitted a Statement of Net Worth in this action, and although Husband may have less worldwide assets than Wife, he has not asserted that he could not afford to hire Thai counsel, much as he has been able to hire New York counsel. Neither side has raised any New York-based assets that could be distributed by this court—both parties rent apartments in New York, and there is no alleged real, business, or other property here. To the extent that any child support may be awarded here, the parties may be able to stipulate to an income for child support purposes of at least several times the current $154,000 combined income cap under the Child Support Standards Act (revised per Administrative order AO/54/20, effective March l, 2020, from $148,000 to $154,000), DRL § 236(B)(6)(b)(4) and DRL § 240(l-b)(b)(6), precluding the need for full financial discovery in New York if the only financial issues in this court are regarding child support.
"When the court finds that in the interest of substantial justice the action should be heard in another forum, the court ... may stay or dismiss the action in whole or in part .... The domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action" ( CPLR § 327 (a) ). See Islamic Republic of Iran v. Pahlavi , 62 NY2d 474, 478-89 (1984), cert den. 469 U.S. 1108 (1985). The court has the discretion to consider whether "in the interest of substantial justice the action should be heard in another forum" ( Fekah v. Baker Hughes Inc. , 176 AD3d 527, 528-29 (1st Dept. 2019) ) (internal quotation marks and citation omitted). If the court weighs the pertinent factors and its determination is "provident," the appellate court upholds the trial court's ruling (see, e.g., Karella v. Karella , 159 AD2d 414, 414 (1st Dept. 1990) (affirming dismissal where defendant showed that Greece was the most appropriate forum)). See also Fernie v. Wincrest Capital, Ltd. , 177 AD3d 531 (1st Dept. 2019) ("[A]lthough there are some witnesses and evidence in New York, and one defendant is a New York resident, the court properly determined that New York is an inconvenient forum for this action.").
Pursuant to CPLR § 327(a), the relevant factors in the forum non conveniens analysis include: (1) the burden on the New York court; (2) the potential hardship to the defendant; (3) the unavailability of an alternative forum in which plaintiff may file suit; (4) whether both parties are nonresidents; and (5) whether the transaction from which the cause of action arose occurred primarily in a foreign jurisdiction. Fekah, 176 AD3d at 528, citing Islamic Republic of Iran , 62 NY2d at 479. "The court may also consider the location of potential witnesses and documents and potential applicability of foreign law." Fekah , 176 AD3d at 528, citing Shin-Etsu Chem. Co., Ltd. v. ICICI Bank Ltd., 9 AD3d 171 (1st Dept. 2004).
New York law does not, however, require that an alternative forum be available. Primus Pac. Partners 1, LP v. Goldman Sachs Group, Inc. , 175 AD3d 401 (1st Dept. 2019) (citations omitted; emphasis added).
As discussed above, the financial assets, documents, and witnesses are not located in New York, and are likely located primarily in Thailand. The alleged prenuptial agreement was entered into in Thailand, under Thai law, by the couple who were then residing in Thailand, were married in Thailand, and remained in Thailand for years, covering assets or businesses that may be concentrated in Thailand (and, apparently, none of which are in New York). For this court to decide whether the prenuptial agreement is valid under Thai law, would require, at a minimum, for both sides to hire Thai legal experts to testify about applicable statutory and other relevant Thai law in this court, and to present certified relevant translations of either Thai statutes or caselaw (see CPLR § 4511(b) ; HSBC Guyerzeller Bank AG v. Chascona N.V. , 42 AD3d 381, 841 N.Y.S. 2d 11 (1st Dept. 2007) ; Zuckerman v. Metro. Museum of Art , 307 F. Supp. 3d 304 (S.D.NY 2018) ). The original prenuptial agreement is apparently also located in Thailand, and if it is to be tested, it would need to either be tested close to where it is currently located or somehow brought to New York for testing, in a manner that provides both sides with sufficient comfort that the prenuptial agreement was not damaged or lost during travel or testing. There does not appear to be a meaningful connection to New York on the financial issues, except for custody-related child support issues, which are before this court. The bulk of the relevant documentary financial evidence is located outside of New York, in Thailand, and most witnesses are located outside New York and beyond New York's subpoena power, again, likely in Thailand. Thai substantive law may govern, at least concerning issues related to the prenuptial agreement. There is an alternative forum available (the Thai action has already been filed, served, and started), with greater connection to the subject matter. See Al Rushaid Parker Drilling Ltd. v. Byrne Modular Buildings L.L.C. , 2020 NY Slip Op. 01277, 2020 WL 890097 (1st Dept. Feb. 25, 2020) (citing CPLR § 327(a) and Islamic Republic of Iran v. Pahlavi , 62 NY2d 474 ).
Under all of the circumstances herein, the Thai court would be more suitable to adjudicate the financial claims herein. This court will not, however, dismiss the New York action or financial claims therein, but instead, will stay those portions of the action, to allow the Thai court to adjudicate the claims, and for the parties, if need be, to seek comity and recognition, if appropriate, in this court.
The parties raise a number of issues that are not relevant to the motion to dismiss, including questions about validity and authenticity of the prenuptial agreement. The court does not address these issues, which are more appropriately reserved for the action itself. The court has considered all relevant arguments even if not expressly addressed herein, as consideration of those arguments would not have changed the ultimate determination.
The court also notes that the August 2019 Thai petition included a notice in English (and perhaps in Thai, according to the translation stamp) addressed to Defendant-Husband in that action: "Therefore, you are required to submit an Answer to the Complaint to the Court within 15 days from the date you receive, or are deemed to have received, this Writ of Summons. The Court hereby fixes the date of settlement of issues, the date to plan a direction to proceed with the case or to examine the Plaintiff's witness(es), to be on December 3, 2019, at 9.00 hrs." [NYSCEF doc. 11 at 73]. As noted, supra, the Thai petition was apparently served on Husband by overnight mail sent via the Thai courts on September 24, 2019. This court does not need to decide whether the Thai action was served first, or filed first, or whether Thai courts or New York courts would look at first-filed or first-served jurisdiction as taking precedence, however, due to the forum non conveniens holding.
Accordingly, it is hereby,
ORDERED that Branches (1) and (2) of Wife's motion are granted based on forum non conveniens, the court declines to exercise jurisdiction over Husband's causes of action except for those relating to custody and child support, and any determination in this action of Husband's other causes of action herein are stayed pending conclusion or settlement of the Thai divorce action; and it is further
ORDERED that Husband's cross-motion is denied.
This constitutes the Order of the court; any relief not granted is denied.