Opinion
313085/10.
Decided May 26, 2011.
Harold A. Mayerson, Esq. of Mayerson Stutman Abromowitz LLP, New York, New York for plaintiff.
Robert S. Cohen, Esq. of Cohen Clair Lans Greifer Thorpe LLP, New York, New York for defendant.
On motion sequence one, defendant A. S. (Wife) seeks an order: (1) pursuant to CPLR § 3211(a)(2) dismissing that portion of the complaint of plaintiff G. S. (Husband) that seeks a determination of custody of the parties' son, because their son has resided in France for a period in excess of six months; and (2) awarding the Wife $123,861 as interim counsel fees. The Husband opposes the Wife's motion. On motion sequence two, the Husband seeks an order: (1) declaring that this court has jurisdiction to determine custody; (2) appointing an attorney for the parties' son; and (3) directing that a Lincoln hearing take place. In the alternative, if the court finds that it does not have jurisdiction to determine custody, the Husband seeks an order directing that child support for the parties' son be determined in France. The Wife opposes the Husband's motion. This court consolidated motion sequences one and two for decision, deemed motion sequence two a cross-motion to motion sequence one, and heard argument on both on May 2, 2011.
FACTS
The parties were married on October 12, 1996 in New York. They have a son, G. V., born on March 12, 2002. In or about September 2009, when their son was seven years old, the family moved to Paris, France, where they had previously signed a six-year lease on an apartment at the Palais Royal (the Apartment), and arranged for other housing in Paris while they undertook renovations on the Apartment. The parties enrolled their son in first grade at a bilingual school in Paris.
The Husband filed this action for divorce on November 3, 2010. On February 21, 2011, the Wife commenced a proceeding in France in which she seeks custody of the parties' son, who is now nine years old.
In late 2010, the Husband returned to live in the United States, where his work is based. The Wife and the parties' son continue to live in Paris, where their son attends third grade. It is undisputed that the child's physician and dentist are in Paris. The Wife has a visitor's visa to remain in France. In connection with the Wife's visa renewal, the Husband signed a "Parental Authorisation" consenting to their son residing in France, which expires on August 30, 2011.
The Wife is 42. She has a masters degree in decorative arts from Cooper Hewitt National Design Museum, with a specialty in French furniture. She has not worked full time outside the home since the parties' son was born in 2002, and is not presently employed. Her Net Worth Statement lists checking and savings accounts in her sole name containing a total of $647,984. It also lists a joint checking account with the Husband containing $88,108. It lists an investment account in her sole name with a value of $551,775, and an IRA in her sole name with a value of $59,934. It lists her monthly expenses as $114,286. As of March 10, 2011, the Wife had incurred counsel fees to her U.S. attorneys totaling $18,282.50, and she owed her attorneys $6,352, not including the costs in connection with this motion and cross-motion. Her U.S. attorneys estimate that they will require an additional approximately 140 hours of attorney time through discovery, and an additional 50 hours for trial preparation and drafting of pre-trial submissions. Her attorneys bill at rates ranging from $350 per hour for associates to $825 per hour for senior attorneys.
Certain expenses listed on the Wife's Net Worth Statement also appear on the Husband's Net Worth Statement. For example, both parties list monthly rent as approximately $20,000, which the Husband's Net Worth Statement breaks down as $15,000 for the Apartment and $5,500 for the apartment in New York City where the Husband now resides. Both parties also list their son's tuition and other educational expenses on each of their Net Worth Statements. It is not clear who is currently paying for these expenses or from what funds, since the Wife also states that she has been living off of savings transferred from a joint account into an account in her sole name.
The Husband is 41 and has a Bachelors' degree from the Johns Hopkins University. He is the manager of a company that provides services to a hedge fund, both of which are based in New York and are related to a larger company. The parties' joint 2009 tax return lists the Husband's salary as $300,000, his K-1 income as $6,551,613, and net capital gains totaling $8,548,757. After deduction of business and other losses, the total taxable income reported on the joint 2009 return is $10,882,053. The Husband's Net Worth Statement states that his income in 2009 was unusually high, but that he earned between $1,932,751 in 2001 and $3,571,721 in 2008. It lists $416,669 in a joint checking account with the Wife and $234,849 in an account in the name of his business. It lists an investment account in his sole name with a value of $7,432,676, and a "CollegeBoundFund" securities account in his sole name containing $124,380. It lists an IRA in his sole name with a value of $332,486. It lists stock options with an undetermined value. It lists his monthly expenses as $64,625, not including income taxes.
ANALYSIS
Custody Jurisdiction
Article 5-A of the Domestic Relations Law, also known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), states that New York courts have jurisdiction to make a 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 of the proceeding. . . ." (DRL § 76[a]). 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).
It is undisputed that the parties' son had lived in Paris with one or both parents for over a year at the time the Husband commenced this divorce action in which the Husband seeks custody, and for nearly 17 months at the time that the Wife commenced child custody proceedings in France. Consequently, under the plain language of the UCCJEA, New York is not George's home state and does not have jurisdiction to make a determination as to his custody.
None of the cases cited by the Husband commands a different result, as each of them was either decided under the predecessor statute to the UCCJEA ( Koons v Koons, 161 Misc 2d 842 [Sup Ct NY Co 1994]; Stanley F. v Marlene F., 144 Misc 2d 235 [Fam Ct Westchester Co 1989]), and/or is factually distinguishable from this case ( Koons, supra [Under predecessor statute to UCCJEA, New York court had jurisdiction over custody of child who spent 11 weeks prior to commencement in Italy with mother]; Felty v Felty , 66 AD3d 64 [2d Dept 2009] [child's six-week vacation with mother in Kentucky did not deprive New York of custody jurisdiction]; Arnold v Harari , 4 AD3d 644 [3d Dept 2004]; [New York had custody jurisdiction where mother took child to Israel ostensibly for a one-month vacation after stipulating that New York had jurisdiction and promising to return, but failed to do so]). Indeed, Felty, cited by the Husband, actually supports the Wife's position that, even if the parties had discussed the possibility that the Wife and the parties' son would return to live in New York, it is the child's place of actual residence with a parent for over six months at the date of commencement that determines custody jurisdiction ( Felty, supra at 70). Despite the Husband's characterization of the parties' son's relocation to Paris as "temporary," the Husband does not cite to a single case in which the statute's exception for "temporary absence" applied to a period in excess of a year, as in this case. Furthermore, it is also undisputed that the child's school, after-school activities, physician, and dentist are all located in Paris. Under those circumstances, it can hardly be said that his presence there is in the nature of a visit or vacation. Accordingly, this court does not have jurisdiction over custody of the parties' son pursuant to the UCCJEA, and the Wife's motion to dismiss that portion of the Husband's complaint that seeks custody is granted.
Child Support Jurisdiction
The Husband argues that, if the issue of custody is to be determined by the French courts, that the issue of child support should also be determined in France, citing Anonymous v Anonymous ( 248 AD2d 322 [1st Dept 1998]), Cahen-Vorburger v Vorburger ( 284 AD2d 141 [1st Dept 2001]), Puri v Puri ( 213 AD2d 389 [2d Dept 1995]), and George A. v Ivett A. ( 14 Misc 3d 622 [Sup Ct Bronx Co 2006]) for the proposition that child support should always be decided by the court that is deciding custody. However, those cases do not support that claim. In Anonymous, supra, the Appellate Division in the First Department upheld the trial court's denial of an application that custody be determined in another state. The court did not consider an application, like the Husband's in this case, that New York decline to consider the issue of child support. Equally inapplicable is George A. v Ivett A. in which the divorce court determined that it was appropriate that it consolidate and hear a neglect proceeding pending in the Family Court in the same county.
In Cahen-Vorburger v Vorburger, the Appellate Division for the First Department upheld the trial court's denial of the husband's request for a stay of the New York divorce action based on a French court's issuance of a divorce decree that the wife had appealed and was thus not final and enforceable. In doing so, the Court noted that, under the circumstances of that case, New York would retain jurisdiction over custody and child support, even if the French divorce decree was upheld, because the children resided in New York and the parties had both appeared in the New York divorce action. Therefore, that case also does not assist the Husband. Nor does Puri, supra, in which the Appellate Division for the Second Department held that child support should be left for determination by the Indian courts, since the mother, who resided with the children in India, had not appeared in the New York divorce action and had made no request for child support, so that the New York court had no request before it and no information about the mother's finances or the children's needs.
Far more on point is Reish v Reish (10/28/05 NYLJ 25 at col 1 [Sup Ct NY Co]). In that case, Justice Drager recognized that Ohio, as the child's home state, had exclusive jurisdiction to determine custody. However, she retained jurisdiction of the financial issues, as the information about the parties' financial circumstances was more easily available in New York, and the Husband had failed to meet his burden to show that New York was an inconvenient forum for resolving the financial issuesin the divorce.
In the case at bar, the child support determination is most sensibly made by this court, since it is undisputed that the majority of the assets exist in New York, the Husband, who is clearly the more monied parent, resides and works in New York, and, unlike in Puri, supra, the Wife has appeared in the New York action and can provide the court with information about her finances and the parties' son's needs. Furthermore, the only request for child support of which this court is aware is the one before this court, and this court certainly cannot confer jurisdiction on a foreign court when no proceeding for the same relief has been commenced in that jurisdiction. Therefore, the Husband's request for an order that child support be determined by the French courts is denied.
Attorneys' Fees
Domestic Relations Law § 237 authorizes the court to direct either spouse to pay counsel fees in order to enable the other spouse to carry on or defend the action as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties( Johnson v Chapin , 12 NY3d 461 ; Dodson v Dodson , 46 AD3d 305 [1st Dept 2007]; DeCabrera v Cabrera-Rosete, 70 NY2d 879). Domestic Relations Law § 237(a), as amended in 2010, creates "a rebuttable presumption that counsel fees shall be awarded to the less monied spouse." Inasmuch as it appears that the Wife lacks sufficient funds of her own to compensate counsel without depleting her assets, the Wife is awarded interim counsel fees in the sum of $120,000, to be paid by the Husband directly to the Wife's attorney on or before June 1, 2011 ( Charpie v Charpie, 271 AD2d 169 [1st Dept 2000][awarding interim counsel fees to the wife whose funds, though considerable, were finite and could be depleted by the litigation, whereas the husband's assets continued to grow]). This award is made without prejudice to further applications for additional sums, as necessary at the time of trial or sooner ( Jorgensen v Jorgensen, 86 AD2d 861 [2nd Dept 1982]). If the counsel fees are not paid by June 1, 2011, the Clerk is directed to enter a money judgment in favor of counsel upon counsel's written affirmation. No further notice shall be required.
In accordance with this decision, it is
ORDERED that the Husband's request in his Complaint in this action for a determination of child custody is dismissed, since France is the home state of the parties' child pursuant to the UCCJEA; and it is further
ORDERED that the Husband shall pay directly to the Wife's attorneys the sum of $120,000 as interim counsel fees on or before June 1, 2011; and it is further
ORDERED that if the Husband fails to pay the Wife's attorneys $120,000 by June 1, 2011, the Wife's attorneys shall be entitled to a money judgment against the Husband upon the filing of an affirmation by counsel, with no further notice to the Husband required; and it is further
ORDERED that all relief requested but not granted above is denied.
This constitutes the decision and order of the court.