Opinion
1382703.
Decided June 24, 2005.
Upon the foregoing papers, defendant-husband Sam Haiman (the husband) moves for an order, pursuant to CPLR 3211 (a) (2), (a) (4), (a) (7) and (a) (8), dismissing the complaint of plaintiff-wife Miriam Haiman (the wife) in Action No. 1 and Action No. 2. The wife moves for an order in Action No. 2, pursuant to Domestic Relations Law § 236 (B), granting her pendente lite maintenance in the amount of $500 per week, retroactive to the date of her application. These two applications are consolidated for purposes of the disposition of the motions only.
In same order to show cause dated July 7, 2004, the wife also sought an award, pursuant to DRL § 237, of temporary attorneys' fees in the amount of $10,000. On November 1, 2004, when the husband's motion to vacate the default judgment entered against him was heard and a decision was entered on the record, as is more fully discussed herein, vacatur of the default was conditioned upon the husband paying the wife attorneys' fees in the amount of $8,500 so as to allow her to litigate the instant actions, and the continuation of bi-weekly temporary maintenance in the amount of $923.
The husband's motion to dismiss and the wife's order to show cause seeking temporary maintenance were submitted under the index number for Action No. 2; the wife's opposition papers and the husband's reply papers were submitted under Action No. 1. The court, however, considered all of the papers in rendering its decision.
Facts and Procedural Background
The parties were married in San Juan, Puerto Rico on August 27, 1968. After the marriage, they briefly established their residence in New York; thereafter, they moved to Puerto Rico. They resided in Puerto Rico from approximately 1978 to April 2000, when the wife returned to New York, where she presently resides. The husband argues that he has only minimal contacts with New York State and further asserts that the parties acquired community property and raised their three children, who now range in age from 29 to 34, in Puerto Rico.
The New York Proceedings
On April 14, 2003, the wife commenced Action No. 1 seeking a judgment declaring the nullity of a judgment of divorce entered in Puerto Rico on September 14, 2001 under civil index no. CDI 2000-1073 (Index No. 13827/03) (the Puerto Rican judgment of divorce). In the alternative, the wife seeks a judgment granting her ancillary relief pursuant to Domestic Relations Law (DRL) §§ 236 (B) and 237, including an award of equitable distribution, lifetime maintenance and counsel fees. The husband was personally served with a copy of the summons and complaint in Puerto Rico. Following attempts by the husband to file a motion to dismiss the action, which were rejected due to his failure to comply with the procedural mandates of this court and the statutory requirements of the Civil Practice Law and Rules section 2214. By request dated July 1, 2003, the wife sought a preliminary conference (see, Civil). The wife served a copy of her request and of the court order scheduling the conference for August 1, 2003 upon the husband and/or his attorney in Puerto Rico. When the husband failed to appear at the conference, by order dated August 1, 2003, this court found him to be in default and scheduled an inquest for September 22, 2003; the wife served the husband with a copy of this order by certified mail — return receipt requested, as directed by the court. During the inquest on September 22, 2003, the wife testified that the husband obtained the judgment of divorce in Puerto Rico by notifying her of the proceeding by publishing service of the summons. The wife further testified that the husband obtained permission to so serve her based upon a fraudulent affidavit in which he alleged that he did not know her whereabouts, although he had sent her correspondence and had spoken to her on the telephone. The wife also stated that the husband was employed by the United States Department of Transportation; that he maintained an office in White Plains, New York; that he is in this State on almost a monthly basis to transact business; and that every time he comes to New York for business, he sees the family. The court granted the wife a continuance to allow her to obtain certified copies of the documents issued by the Puerto Rican court upon which she relied, along with certified translations. When the inquest proceeded on October 30, 2003, the wife's application for an order declaring that the judgment of divorce issued by the courts of Puerto Rico on September 14, 2001 is null and void was granted.
After the wife served a copy of the proposed judgment upon the husband and/or his attorney in Puerto Rico, the husband contacted the court and sought to vacate the default by motion dated January 23, 2004. By letter dated February 4, 2004, this court rejected the motion because there was no notice of motion attached and further advised the husband that any application to vacate his default must be made properly. Accordingly, a judgment vacating the Puerto Rican judgment of divorce was finally signed on March 26, 2004 (the March 2004 Order); a copy of that order with notice of entry was served on the husband on April 15, 2004. The Court did not sign the Judgment until March 26, 2004 so as to afford the defendant an opportunity to cure the rejected motion pursuant to the February 4, 2004 letter.
On May 5, 2004, the wife filed Action No. 2, seeking a divorce. Therein, by order to show cause dated July 7, 2004, the wife moved for an order: (1) pursuant to DRL § 236 (b), directing the husband to pay her pendente lite maintenance in the amount of $500 per week, and (2) pursuant to DRL § 237, awarding her temporary counsel fees in the amount of $10,000.
By order to show cause dated September 28, 2004, the husband moved for an order, pursuant to CPLR 5015 (a) (3), vacating the March 26, 2004 Order. The wife cross-moved for an order, pursuant to DRL § 237 (c), for an award of counsel fees in the amount of $36,000.
During oral argument held on November 1, 2004, the court rendered a decision off the bench, in which it granted the husband's application to vacate the default judgment, on the conditions that he pay $8,500 in counsel fees and that he continue to pay pendente lite maintenance in the amount of $923, bi-weekly, without prejudice to an adjustment, dependent upon the determination of whether Action No. 2 is found to be viable. An order incorporating the transcript so providing was signed on June 2, 2005. The defendant argued that he ignored the prior proceeding on advice of counsel in Puerto Rico.
The Puerto Rico Proceedings
As can be gleaned from the various motions, transcripts and minutes submitted to this court, on September 19, 2000, the wife filed a "motion requesting order establishing provisional legal remedy," including an order prohibiting the husband from disposing of any marital assets, in civil case no. Q2000-172 in the Sub-Section District Court of Ciales; she commenced that proceeding using the name Miriam Haiman Gonzalez. On October 2, 2000, the husband filed a divorce complaint in civil case no. CDI 2000-1073 on the ground of "separation for over two years" in the Superior Court of Arecibo.
On November 2, 2000, the parties and their attorneys appeared in court before the Honorable Marie Ramos on the wife's motion. The transcript and minutes indicate that the wife was represented by Evelyn Fernandez-Santiago and the husband was represented by Desiree Alcantara Manana. After the parties and/or their attorneys met with Judge Ramos in chambers, they appeared in the courtroom. Judge Ramos asked the parties to stand side-by-side with their attorneys to listen to what was said while their agreements were placed on the record, as they indicated that they wished "to settle, prior to the divorce proceeding, covenants so that both parties, co-owners of a legal partnership of community property, feel satisfied with their economic assets" and that they wished "to work jointly to protect what jointly belongs to both . . . since this divorce is not yet final."
The minutes of the November 2, 2002 appearance state that:
"1. Tomorrow (November 3) the defendant [husband] shall give to the plaintiff [wife] the amount of $10,000.00, with credit to her participation in joint ownership in property.
"2. A bi-weekly pension is stipulated in the amount of $923.00, in favor of the plaintiff [wife], until the divorce is decreed.
"3. An appraisal shall be conducted on the property and the expenses involved in this appraisal shall be paid by the gains of the property."
The husband further alleges that during that appearance, the wife's attorney agreed to accept service of a divorce motion. This contention is supported in a sworn statement submitted by Manana and in a letter, dated January 27, 2003, from Fernandez-Santiago to Manana, in which the latter certified that she represented the wife in the "proceedings of temporary order which was heard on November 2, 2000." Fernandez-Santiago further stated, as is relevant herein, that:
Neither party cites any statutes or refers to any case law authority that establish what papers must be served and/or filed to commence a divorce proceeding in Puerto Rico. The parties explain, however, that under Puerto Rican law, an action for divorce must be pursued in three separate proceedings: a proceeding on grounds for a divorce, a proceeding on the equitable distribution of the property and a proceeding on alimony. Each is a distinct proceeding, which may be presided over by a different judge.
"I remember that in said hearing you presented a complaint for divorce and indicated that your client wished to continue with the proceedings for said divorce.
"According to attorney/client privileges which protects us in this situation, I cannot offer you additional information with respect to our mutual client."
The husband alleges that approximately two weeks after the November 2, 2000 court appearance, his attorney was advised that the wife had terminated the services of Fernandez-Santiago. When the wife thereafter failed to appear in the divorce action, in May 2001, the husband requested permission to serve her by publication and certified mail in accordance with Rule 4.5 of the Puerto Rico Rules of Civil Procedure; his application was granted. The Honorable Jaime R. Banuchi Hernandez singed the Puerto Rican judgment of divorce on September 14, 2001.
The husband also filed a petition for division of community property dated January 17, 2003, civil case no. 2003-1264 (404) and he sought an order fixing alimony. By "Special Appearance" dated August 15, 2003, Oscar Vega Arce, the wife's attorney, alleged that he was not submitting to the jurisdiction of the court, but was responding to a "motion requesting appointment of alimony" that had been presented to the court. Arce further alleged that the divorce action that is the basis of the application for alimony is "the subject of a Petition to Annul a Foreign Ruling brought before the Supreme Court of the State of New York." Arce accordingly requested a "suspension of the proceedings in this case while the controversy with regard to the validity or nullity of the Divorce Decree is resolved based on the allegations of lack of personal jurisdiction and disagreement regarding notification" in New York.
A copy of the petition seeking alimony has not been presented to the court, but appears to have been filed under the same caption and index number used in the initial divorce proceeding, CDI 2000-1073.
By opposition to this Special Appearance dated August 21, 2003, Manana alleged, on behalf of the husband, that the wife was duly summoned on July 3, 2003 through notice by publication and that a copy of the summons and complaint was served upon her by certified mail on July 19, 2003. Manana further asserted that the wife forbade her children and relatives from informing the husband of her last known address, thereby necessitating service by publication, and that the husband made a motion to dismiss the New York action.
At a hearing that ensued on October 30, 2003 before Judge Hernandez, the husband appeared in court, accompanied by Manana; Arce appeared on behalf of the wife. The abstract for that hearing indicates that Arce argued that the summons issued in the divorce complaint was incorrect, although he accepted that the address to which the summons was sent is correct, and that the summons was issued under the name of "Miriam Ortiz Gonzalez," although her surname in the United States is Haiman. Manana alleged that she had discussions with the wife's attorney in New York regarding alimony and community property, but the attorney withdrew from the case. She further claimed that although the wife had filed a claim in New York, jurisdiction resides in Puerto Rico. The court resolved that:
"After examining the judicial files, it is determined that the summons is correct.
"For the record, the plaintiff has indicated that he is paying the defendant alimony in the amount of $2,000.00 a month, and that is not Court appointed.
"The defendant issued a case in New York and this Court shall not interfere in those proceedings."
Although the court has before it numerous translations of several documents, including this one, that differ in minor respects, the variances in all are insignificant and will not be noted again.
On July 13, 2004, the wife filed a "motion requesting a relief of sentence in the Honorable Court" in Superior Court of Arecibo. In support of the motion, Arce alleged that the divorce sentence is void as obtained by fraud, since jurisdiction over the wife had not been obtained. More particularly, counsel argued that the court was given incorrect information with regard to the wife's name and address in the United States and that during the period when the husband represented that the whereabouts of his wife were unknown to him, he maintained contact with her.
By motion in opposition to the wife's application, Manana referred to the hearing conducted on October 30, 2003, during which the wife first raised her allegations of fraud, and the court's finding that the summons was correct and that the notification be amended; the notice provided to the wife of the proceeding by publication and by certified mail; her appearance in court on November 2, 2000; and the agreement that the parties entered into on that day. Counsel also clarified that the summons was not served at that appearance because the husband, being unaware of the whereabouts of his wife, had requested a summons under notice by publication; although they had filed a motion requesting a regular summons, it had not been issued prior to the November 2, 2000 court date. Counsel also alleged that the husband used the address for the wife which he believed to be correct and that she had used numerous names during the marriage.
By order dictated on July 23, 2004 and dated August 6, 2004, Judge Hernandez denied the wife's motion, finding "that the address for which for the serving of the summons was authorized under notice by publication and which was shown in said notice published in the newspaper is the correct address that your client admits is correct."
On September 23, 2004, the husband, his attorney, and the wife's attorney again appeared before Judge Hernandez. After discussing whether the wife was accepting the alimony payments being made by the husband, the wife's counsel represented that she is seeking to obtain alimony in the action that she had commenced in New York State.
By letter to the husband's attorney dated January 14, 2005, Judge Nazario stated, in pertinent part, in reference to civil action CAC2003-1264, that:
"[I]f New York is in the process of deciding whether the divorce obtained by Mr. Haiman was obtained by fraud or violation of strong public policy, I am not able to divide the marital property because you have to be divorced and if New York [decides] that there was fraud or violation of strong public policy, they will still be married. This is the reason why I am not able to continue with the case to divide marital property."
Having informed counsel of the intention to contact the magistrate handling the matter in Puerto Rico during the November 1, 2004 oral argument of the husband's motion to vacate the March 2004 Order, this court, with consent of both counsel, wrote to inquire as to the status of the proceedings in Puerto Rico. By letter dated April 5, 2002, Judge Hernandez advised that:
"In response to your questions there are no issues pending. The divorce by default was granted on September 14, 2001. The other issues presented to us was a petition by Mr. Haiman asking the Court to grant an alimony in favor of Ms. Haiman, Ortiz, Gonzalez.* Ms. Haiman, Ortiz, Gonzalez, appeared represented by counsel for this matter and informed the court that she was contesting the divorce in a New York court where she was also asking for alimony and that she was not interested in an alimony order from this court.
"In light of those arguments no alimony was granted [and] Mr. Haiman was informed of the proceeding in the New York court.
"* These are all the names that defendant Miriam Haiman [uses]."
In drafting his letter, Judge Hernandez referenced the New York index numbers. Counsel for both parties received copies of said correspondence.
The Parties' Contentions
The husband argues that in view of the above, it is clear that the court in Puerto Rico had jurisdiction over the wife and hence has jurisdiction over the parties' divorce dispute. In support of his position, the husband points to the wife's commencement of a preliminary proceeding in Puerto Rico seeking to enforce her rights at approximately the same time that he commenced his divorce proceeding. He further emphasizes that when the wife and her attorney appeared in court on November 2, 2000 on her application, her counsel represented that she would accept service of the husband's divorce motion. Moreover, during that appearance, as is made clear by both the transcript and the minutes, the wife agreed to accept a payment of $10,000 as an advance against her interest in the parties' community property, to accept biweekly alimony payments of $923 pending resolution of the divorce proceeding and to have the parties' community property appraised. When she thereafter discharged her attorney and refused to appear in the divorce action, the husband served her in accordance with the direction of the court. The husband also argues that the two separate applications that the wife made to the court in Puerto Rico in which she argued that service was improper were both rejected and the judgment of divorce was upheld. The husband accordingly concludes that there is no basis upon which to set aside the Puerto Rican judgment of divorce and that the wife must pursue her demands for alimony and equitable distribution in Puerto Rico, where proceedings are already pending. The husband also argues that the courts of this state do not have jurisdiction over him, since his contacts with New York are minimal, the parties have not resided in this state as husband and wife for over 20 years and they own no property here.
The husband therefore contends that the two actions commenced against him by the wife should be dismissed on the grounds that: (1) this court does not have jurisdiction of the subject matter of the cause of action; (2) there is another action pending between him and the wife for the same cause of action, i.e., there are proceedings pending in Puerto Rico for alimony and equitable distribution; (3) the wife should be equitably estopped from maintaining the action in New York State because she accepted the benefits of the stipulation entered in the Puerto Rico divorce action; (4) the doctrine of res judicata bars the wife from maintaining the New York actions because the Puerto Rican judgment of divorce is valid and binding; (5) the wife fails to state a cause of action, because the court cannot make an award of equitable distribution in an action to declare the nullity of a foreign divorce decree; and/or (6) this court does not have jurisdiction over him because of improper service and because this court does not have jurisdiction over the marital res.
This assertion has been rendered moot by the wife's commencement of Action No. 2, in which she seeks a judgment of divorce and ancillary relief.
In opposition, the wife argues that the Puerto Rican judgment of divorce should not be afforded full faith and credit because the husband fraudulently procured it. More specifically, the wife alleges that although she moved to New York in April 2000, she was in the former marital residence in Puerto Rico from July 19 to August 11, 2000, to attend her son's wedding, and she and her husband appeared together in court in Puerto Rico on November 2, 2000. Further, she and her husband were together in New York on numerous occasions, including meetings during January 2001, February 2001, February 2002, May 2002 and August 2002; they spoke on the telephone in May and June 2001; and he sent mail to her in June and July 2001, addressed to Miriam Haiman. In addition, the husband knew that she would be in Puerto Rico for Christmas in 2001 and the two went to lunch together on December 26, 2001. Nonetheless, the husband swore in an affidavit that he submitted to the court in Puerto Rico that he did not know her whereabouts and asked to serve the summons for divorce upon her by publication. Further, notice was published under the name of Miriam Ortiz Gonzalez, a name that she was not known by in New York.
The wife further contends that although she appeared in court on November 2, 2000, the appearance was not for a divorce action nor for a division of property, but was for a provisional remedy because she felt that she did not know enough about the parties' bank accounts. Since she was residing in New York at the time, she claims that she had no intention of proceeding with the divorce in Puerto Rico.
In the alternative, the wife contends that if the Puerto Rican judgment of divorce is permitted to stand, the issues of alimony, maintenance, equitable distribution and counsel fees should be heard by this court. In this regard, the wife contends that this court has acquired jurisdiction over the husband because he was personally served with process in Puerto Rico in both Action No. 1 and Action No. 2 and he maintains significant contacts with this state.
The Puerto Rican Judgment of Divorce
The Law
In addressing the effect that will be afforded to a judgment issued by a court in Puerto Rico, it has been held that:
"The Puerto Rican judgments must be given full faith and credit in the courts of New York ( American of Puerto Rico v. Kaplus, 368 F2d 431, 437, cert den 386 US 943) unless the Puerto Rican courts failed to acquire personal jurisdiction over defendants ( Durfee v. Duke, 375 US 106, 109). Although a judgment may be collaterally attacked because jurisdiction was not proper under the statutes of the forum State ( Hunt v. Dawson County, Montana, 623 F2d 621), in this case, the Puerto Rican judgments are valid so long as due process is satisfied because Puerto Rico extends its jurisdiction (Laws of Puerto Rico Ann, tit 32, Appendix II, Rules of Civ Pro, rule 4.7) to the fullest extent permitted by the due process clause ( Intergrated Inds. v. Continental Milling Co., 385 F Supp 883; Ramon Vela, Inc. v. Sagner, Inc., 382 F Supp 478)."
( Rios v. Altamont Farms, 100 AD2d 405, 408-409, revd on other grounds 64 NY2d 792, cert denied 473 US 905; see also Americana of Puerto Rico v. Kaplus, 368 F 2d 431 [the decision of a Puerto Rican court was properly given full faith and credit pursuant to 28 USC § 1738]; El San Juan Hotel v. Koenig, 66 Misc2d 715, 716 [there is no question that a Puerto Rico judgment is entitled to full faith and credit pursuant to 28 USC § 1738]).
Further, as a general principle, "[t]he full faith and credit doctrine 'requires recognition of [a] foreign judgment as proof of the prior-out-of-State litigation and gives it res judicata effect, thus avoiding relitigation of issues in one State which have already been decided in another' (citations omitted) ( Matter of Farmland Dairies v. Barber, 65 NY2d 51, 55; see also, US Const, art IV, § 1)" ( Ionescu v. Brancoveanu, 246 AD2d 414, 416.
"Under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter. The rule applies not only to claims actually litigated but also to claims that could have been raised in the prior litigation. The rationale underlying this principle is that a party who has been given a full and fair opportunity to litigate a claim should not be allowed to do so again ( see O'Connell v. Corcoran, 1 NY3d 179, 184-185 [2003]; Gramatan Home Invs. Corp. v. Lopez, 46 NY2d 481, 485 [1979])."
( In re Hunter, 4 NY3d 260).
Hence, it is beyond dispute that "[t]he constitutional requirement of full faith and credit precludes any inquiry into the merits of the judgment, the logic or consistency of the decision underlying it or the validity of the legal principles on which it is based" ( Cadle Co. v. Tri-Angle Assocs., ___ AD3d ___, 2005 NY App Div LEXIS 4291 [2005]). In other words, "inquiry into the merits of the underlying dispute is foreclosed; the facts have bearing only in the limited context of our jurisdictional review" ( Fiore v. Oakwood Plaza Shopping Ctr., 78 NY2d 572, 577, cert denied 506 US 823, citing Parker v. Hoofer, 2 NY2d 612, 616-617, cert denied 355 US 833; accord Mortgage Money Unlimited v. Schaffer, 1 AD3d 773, 774 [as a matter of full faith and credit, the court's review of the foreign judgment at issue was limited to whether the rendering court had jurisdiction]; JDC Fin. Co. I v. Patton, 284 AD2d 164, 166 [although a collateral attack on the merits of a judgment rendered by a court of a sister state was precluded, a party aggrieved by the judgment could challenge the basis of the judgment court's personal jurisdiction]; All Terrain Props. v. Hoy, 265 AD2d 87, 91 [a judgment rendered by a court of a sister state is accorded the same credit, validity, and effect in every other court in the United States which it had in the state where it was pronounced, so that while inquiry into the underlying merits is precluded, the court will ascertain whether the foreign court had jurisdiction to enter the judgment]).
As is also relevant herein, it is equally well settled that full faith and credit applies to judgments obtained on default:
"Because there is a full faith and credit clause, defendant may not a second time challenge the validity of plaintiff's right which has ripened into a judgment ( Magnolia Petroleum Co. v. Hunt, 320 US 430), which is to say that a judgment of a court having jurisdiction of the parties and of the subject matter operates as res judicata in the absence of fraud or collusion, even if obtained upon default ( Riehle v. Margolies, 279 US 218, 225)."
( Parker, 2 NY2d at 616; see also Riehle v. Margolies, 279 US 218, 225 [a judgment of a court having jurisdiction of the parties and of the subject matter operates as res judicata in the absence of fraud or collusion, even if obtained upon default]; see generally Cook v. Cook, 260 AD2d 160, 160-161 [in an action by a former husband against a former wife seeking equitable distribution with respect to the alleged former marital residence, the court properly granted the wife's motion to dismiss the action on the ground of res judicata based on a prior default judgment of divorce and denied the former husband's motion pursuant to CPLR 5015 (a) (1) to vacate the default]).
It must also be recognized that the preclusive effect of a judgment is determined by the law of the jurisdiction which rendered it ( Ionescu, 246 AD2d at 417; see generally Goldsmith v. Goldsmith, 25 AD2d 515, 516, affd 9 NY2d 710, remittitur amended 19 NY2d 939, cert denied 389 US 831 [where a judgment is not subject to collateral attack in the rendering State, the decree is entitled to full faith and credit in the courts of this state and it may not be attacked here]; Elrick v. Elrick, 20 AD2d 879 [the court correctly recognized the rule that the prior divorce decree was not subject to collateral attack in the instant action if the law of the rendering jurisdiction, the Virgin Islands, did not permit such collateral attack]). In this regard, the burden of proof is "upon defendant to show that the collateral attack which he seeks to make here on the foreign judgment, which on general principles is entitled to full faith and credit, is admissible by the law of [the jurisdiction issuing the subject judgment]" ( Klarish v. Klarish, 19 AD2d 170, 172, affd 14 NY2d 662; accord De Luca v. De Luca, 284 App Div 987, 987-988 [although a party may seek to impeach the judgment of a sister state by evidence sufficient to establish that the granting court had no jurisdiction because of respondent's lack of domicile, the burden is upon the party seeking to challenge the judgment]).
Discussion
Herein, the court finds that the Puerto Rican judgment of divorce is entitled to full faith and credit. In so holding, it is first noted that there can be no question that the parties resided in Puerto Rico prior to the issuance of the Puerto Rican judgment of divorce, since they both allege that they maintained their marital residence there for at least 20 years, until the wife abandoned the husband in 2000, shortly before he commenced the divorce proceeding.
Further, the court finds that service upon the wife, in compliance with Rule 4.5 of the Puerto Rico Rules of Civil Procedure, was sufficient for the court in Puerto Rico to have acquired jurisdiction over her ( see generally Dalton v. Dalton, 270 App Div 269 [service of a summons in a suit for divorce may be made by publication if brought in a competent court in the state of domicile and such service satisfies the requirement of due process if it is permissible by local law and where it is reasonably calculated to give the defendant notice of the proceedings and an opportunity to be heard; if the defendant is a nonresident, service by publication or other constructive notice as is required by the law of the state is sufficient]; Foote v. Foote, 192 Misc 270 [service of a summons by publication, if permissible by local law, satisfies the requirement of due process where it is reasonably calculated to give a defendant notice of the proceedings and an opportunity to be heard; if the defendant is a nonresident, service by publication or other constructive notice as is required by the law of the state is sufficient]).
Rule 4.5 of the Puerto Rico Rules of Civil Procedure provides, in relevant part, that: "(a) The court shall issue an order providing for a summons by publication when the person to be served is outside of Puerto Rico or if in Puerto Rico, cannot be located although pertinent attempts have been made to locate him/her. "The order shall provide that the summons shall be published only once in a daily newspaper of general circulation in Puerto Rico. The order shall also provide that, within ten (10) days following the publication of the summons, the defendant shall be sent a copy of the summons and of the complaint filed, by certified mail, with acknowledgment of receipt, or through any other mail delivery service with acknowledgment of receipt, to his/her last known address."
In this regard, it is noted that although the husband may have been aware that the wife would be attending various family functions in Puerto Rico and/or New York, such as the wedding of their son, this court would not suggest that service should have been made at those functions. Further, the wife does not deny the husband's claim that during the period of time when he was endeavoring to serve her, she told family members that she did not want her husband to know where she was residing. Similarly, the court declines to hold that once the husband determined that he wished to commence a divorce proceeding against the wife, he was obligated to wait until he fortuitously learned of her whereabouts so that he could effect personal service upon her, as the wife seems to infer by arguing that she saw the husband during various family gatherings after he commenced the divorce proceeding.
Further, the wife cannot convincingly argue that the Puerto Rico court did not acquire jurisdiction over her under the circumstances of this case. In the first instance, the wife commenced a preliminary proceeding in the same court against the husband; during an appearance on her motion, she was given personal notice of the pendency of the divorce proceeding.
In addition, the fact that Judge Ortiz placed the parties' agreement on the record, in the presence of the parties and their respective attorneys, compels the conclusion that the wife did, in fact, consent to the jurisdiction of the Puerto Rico court over the divorce proceeding that the husband had already filed; if the wife had raised the issue of jurisdiction, it is not reasonable to believe that Judge Ortiz would have place such a stipulation on the record. Also significant in this regard is the husband's assertion that his wife's attorney agreed to accept service of the summons in his divorce action, which assertion is further supported by an affidavit from his attorney. Additional support for this claim is found in the wife's failure to specifically deny this agreement and in the letter from the wife's attorney, wherein counsel alleges that the attorney-client privilege precludes her from commenting on the agreement.
Moreover, as this litigation has progressed it has become clear that the courts in Puerto Rico specifically considered and rejected the precise issues argued by wife herein in seeking to establish that the husband fraudulently obtained the Puerto Rico judgment of divorce, i.e., that he improperly represented that he was unaware of her whereabouts, so that service by publication was appropriate; that he mailed the copy of the summons to the incorrect address; and that he used an improper name. In this regard, the court in Puerto Rico found that it had acquired jurisdiction over the wife on no less than less than three separate occasions: when the Puerto Rico judgment of divorce was issued; during the October 30, 2003 hearing, when Judge Hernandez denied the wife's "motion requesting relief of a sentence;" and again in his order of August 6, 2004. Further, in his letter to this court, Judge Hernandez refers to the wife as "Ms. Haiman, Ortiz, Gonzalez," which lends credence to the husband's assertion that she used several names during the marriage.
Thus, having been afforded a full and fair opportunity to raise her arguments of fraud in the courts of Puerto Rico, this court will not permit the wife to again raise the same issues here that have already been decided against her on multiple occasions in the courts of Puerto Rico ( see generally Sherrer v. Sherrer, 334 US 343 [the participation of the defendant in the Florida divorce proceedings by a general appearance and by pleading, with full opportunity to contest the jurisdiction, was held to foreclose a later attack in Massachusetts addressed to the jurisdiction of the Florida court to enter judgment]; Mortgage Money Unlimited, 1 AD3d at 774 [defendants were not permitted to relitigate the issue of jurisdiction here where they appeared and contested the issue in the New Jersey action and that issue was decided against them]; Diamond R. Fertilizer Co. v. Scheinthal, 251 AD2d 445, 446 [where the defendants appeared in the underlying Florida action and contested personal jurisdiction and that issue was decided against them, its relitigation is foreclosed in the New York courts]; Ionescu, 246 AD2d at 416 [the record demonstrated that the New Jersey judgment was not infirm due to an absence of jurisdiction or to the denial of notice and an opportunity to challenge the validity of the underlying confessed judgment where there was no question that plaintiff, who was seeking to set aside the New Jersey judgment, submitted to the jurisdiction of the New Jersey court when he appeared with counsel, contested the enforcement action and raised the defenses that the confessed judgment had been obtained by fraud and misrepresentation]; Oldham v. McRoberts, 21 AD2d 231, 234-235, affd 5 NY2d 891 [the prior determination of a Pennsylvania action was conclusive of the claims of fraudulent conduct and the full faith and credit clause prohibited their reconsideration where the plaintiff set forth extensive allegations of fraudulent conduct by defendants and the propriety of the conduct was put in issue and completely litigated in that action]; Gilbert v. Gilbert, 113 NYS2d 383, 384 [1952] [a Florida judgment could not be attacked collaterally in this state on the ground that service of the defendant was obtained by inducing him to enter the state through fraudulent representations where the Florida court denied the defendant's motion to dismiss and held that it had jurisdiction of the defendant where defendant moved in the Florida court, in connection with a special appearance there filed by him, to dismiss the complaint on that ground that he had been fraudulently enticed into Florida]; see generally Bourbon v. Bourbon, 300 AD2d 269, 270-271, appeal denied, motion denied 100 NY2d 505 [the court properly recognized the French divorce decree under the doctrine of comity under circumstances where the wife failed to adduce evidence demonstrating that the French court did not have jurisdiction over her and the record included the translation of minutes of the French proceedings which indicated that the wife's claim of lack of jurisdiction was rejected and that she was represented by counsel throughout the proceedings]).
That Arce entered a "special appearance" in August 2003 in order to contest jurisdiction does not alter this conclusion, since the wife had already appeared, with counsel, in support of her application for provisional relief ( see generally Garvin v. Garvin, 302 NY 96, 103 [1951]).
As a further ground for upholding the validity of the Puerto Rican judgment of divorce, this court finds that the wife is estopped from contesting the jurisdiction of the courts of Puerto Rico by her acceptance of benefits pursuant to the stipulation entered into in open court when the parties appeared on her application for preliminary relief on November 2, 2000, i.e., her acceptance of a payment from the husband of a $10,000 advance against the parties' community property and bi-weekly alimony in the amount of $923, along with an agreement to appraise the parties' community property, pending the decree of divorce. "Equitable . . . [e]stoppel based on laches is appropriate only where the court finds that the conduct of a party induced a change of position or resulted in substantial prejudice to the other party such that the lapse of time and the intervention of circumstances render it unjust for the court to aid a party seeking to challenge a foreign decree" ( Kushnick v. Kushnick, 196 Misc2d 140, 144). The wife does not deny that she accepted the above discussed benefits and it is beyond dispute that the husband made the payments believing that the parties were litigating his demand for a divorce in Puerto Rico.
Thus, the court finds that the wife's assertion that the affirmative assistance that she sought from the Puerto Rican court was not for alimony, divorce, or division of assets is disingenuous. Accordingly, having accepted the benefits of her agreement to litigate her divorce dispute in Puerto Rico, the wife is now barred by estoppel and/or laches from seeking to claim that the judgment of divorce entered by the Puerto Rican court must be set aside ( see generally In re Caputo, 266 AD2d 538, 539-540 [the wife was estopped by laches from contesting the validity of a Mexican judgment of divorce where she accepted the benefits by accepting hundreds of maintenance payment checks and failed to challenge it for over 25 years]; Peterson v. Goldberg, 180 AD2d 260, 266-267, appeal dismissed 81 NY2d 835 [it is well settled that one who remarries in reliance upon an ex parte judgment of divorce is estopped from contesting the effectiveness of the judgment, since a party who invokes the jurisdiction of the courts to attain a specific result may not thereafter repudiate the position upon which he or she relied]; De Marco v. De Marco, 73 AD2d 28, 29 [a party will be estopped from challenging a foreign divorce decree, though void for lack of jurisdiction, if he or she caused it to be issued as to a private claim or demand arising out of the marriage]; Weiner v. Weiner, 13 AD2d 937, appeal denied 219 NYS2d 944 [1961] [wife who indicated acquiescence in a prior judgment of divorce and so induced the other spouse to act upon the assumed validity of the decree by accepting the alimony awarded pursuant to the decree and taking no steps in the period of 18 months between the divorce and the second marriage, and further took no action for a period of seven and a half years after the second marriage, is barred by estoppel and laches from contesting in a latter proceeding]; In re Estate of Bingham, 265 App Div 463, 466-467, reh and appeal denied 266 App Div 669 [the validity of a divorce decree cannot be questioned in a proceeding concerning any right or other interest arising out of the marital relation, by a spouse who takes advantage of such decree by remarrying]). The wife's claims that recognition of the Puerto Rican judgment of divorce would violate public policy of this state, being general in nature and not supported by any persuasive authority, are also found to be lacking in merit. Accordingly, the Puerto Rico judgment of divorce is afforded full faith and credit, so that the wife's demand for a judgment of divorce in this court is barred by the doctrines of res judicata, collateral estoppel and/or the pendency of another action in the courts of a sister state ( see generally 31 LPRA § 3343; Vizcarrondo v. Bd. of Trs., 139 F Supp 2d 198, 204 [even if the claims were founded strictly under Puerto Rican law, preclusion included claims that were raised or could have been raised]; Molina v. Sea-Land Servs., 2 F Supp 2d 180, 183, complaint dismissed 2 F Supp 2d 185 [res judicata claim preclusion principles under Puerto Rican law establish that a final judgment on the merits of an action precluded the parties or their privies from relitigating claims that were raised or could have been raised in that action]; Mercado Riera v. Mercado Riera, 100 PRR 939 [1972] [the doctrine of res judicata prevented litigation of a claim that could have been litigated and adjudicated in a previous suit between the same parties and about the same cause of action]; Roth v. Roth, 99 PRR 25 [1970] [a decree issued by the Supreme Court of the State of New York that ordered, within a judgment decreeing the separation of a married couple, the payment of alimony in arrears to the separated wife, deserved full faith and credit in Puerto Rico when the record in the case did not show that said decree suffered from jurisdictional defects as to the parties and the subject matter leading to its absolute nullity]; Vazquez v. Santos, 54 PRR 587 [1939] [if complete identity of parties and causes of action exists, the fact that the basis of petitioning varies with the suits would not prevent the defense of res judicata from prevailing]; Cintron v. Yabucoa Sugar Co., 54 PRR 493 (1939), affd Facundo v. Yabucoa Sugar Co., 118 F 2d 1 [identity in the causes of action giving rise to defense of res judicata existed even though the grounds for nullity alleged in both suits are different, provided the object of two actions was the same]).
In this regard, the court also notes that in September 2000, when the wife made her application in the Puerto Rico court, the courts of New York did not have jurisdiction to entertain an application for pendente relief, since she had only been domiciled in the state for five months and the husband was domiciled in Puerto Rico ( see generally DRL 230; Rosenstiel v. Rosenstiel, 16 NY2d 64, 79 [1965], reh denied 17 NY2d 612 [1966], cert denied 384 US 971 [1966] [the general rule has become firmly established that jurisdiction over the subject matter of an action for divorce depends upon the domicile of at least one party in the decree rendering forum]).
This Court's Jurisdiction over Ancillary Issues
Having determined that the Puerto Rico judgment of divorce will be afforded full faith and credit and will not be set aside, the court turns to the issue of whether it has the jurisdiction to adjudicate the wife's demands for ancillary relief.
The Law
It is well established that a divorced spouse who possesses an interest in marital property within this State may commence an action for equitable distribution of that property following the entry of a foreign judgment of divorce ( see e.g. Young v. Knight, 236 AD2d 534, 535, citing DRL § 236 [B] [2], [5]; see also Peterson v. Goldberg, 180 AD2d 260 [to provide for the distribution of property not affected by a foreign judgment of divorce, DRL § 236 (B) (2) and (5) provide that a divorced spouse who possesses an interest in marital property within this State may commence an action for equitable distribution of property following entry of a foreign judgment of divorce]; Elson v. Elson, 149 AD2d 141, 149 [plaintiff's claim for maintenance should have been reinstated since although the Colorado divorce decree was entitled to full faith and credit insofar as it terminated the marital relationship of the parties, it did not affect the plaintiff's rights to maintenance because the Colorado courts did not have in personam jurisdiction over the wife and pursuant to current New York statutory law, the court may award alimony or maintenance notwithstanding the previous entry of a valid foreign judgment of divorce]).
Discussion
There is no allegation herein that the parties own any property in the New York State. More significant, however, is the fact that inasmuch as this court has determined that the Puerto Rican judgment of divorce is entitled to full faith and credit, there are currently proceedings pending before the court in that jurisdiction to resolve the issues of alimony and equitable distribution.
In this regard, it is beyond dispute that the wife declined to go forward in those proceedings in the hope that she could obtain a more favorable resolution of the property and maintenance issues here, since she alleged that:
"I believe that I am entitled to lifetime maintenance from this Court and to a fair division of marital property.
"I do not believe this is available to me in the court of Puerto Rico and I wish to litigate here where I do not have to fly back and forth at great expense to me and where I cannot have counsel of my choice and the protection of New York's Domestic Relations Law and its enlightened and modern concepts."
(Affidavit of Miriam Haiman, October 25, 2004, paras 65-66). Inasmuch as the wife has already been represented by two attorneys in Puerto Rico, her claim that she cannot be represented by counsel of her choosing if the litigation goes forward there is not convincing. Moreover, public policy of New York "frowns upon forum shopping and the bifurcation of divorce and equitable distribution proceedings" ( O'Connell v. Corcoran, 1 NY3d 179, 185). Hence, the wife's demands for this relief also have to be dismissed on the grounds that other actions are pending for the same relief ( see Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3211:14; see generally Somma v. Somma, 2005 NY App Div LEXIS 6700, 2005 WL 1400152 [an ex parte foreign divorce was insufficient to affect the property rights of the former spouses where it was undisputed that the Delaware court which dissolved the parties' marriage did not have in personam jurisdiction over the wife; since a state needs in personam jurisdiction over the defendant in order to address ancillary financial matters, while the Delaware court had jurisdiction to grant a divorce after mailing and publication of process, the marital status being in rem, the same was not true with respect to resolution of ancillary matters which required in personam jurisdiction, so that the doctrine of res judicata only applied to claims that were litigated or could have been litigated in a prior action]).
The court further notes that in accordance with O'Connell ( id.), since the courts of Puerto Rico had jurisdiction over both the husband and the wife and could have adjudicated the issues of both alimony and equitable distribution, which is beyond dispute in view of the pendency of the proceedings, her decision to forego seeking such relief in that jurisdiction, where it was undeniably available to her, would preclude her from seeking such relief in this state pursuant to the doctrine of res judicata ( see also Graham v. Graham, 293 AD2d 345, 346 [2002], appeal denied 98 NY2d 692 [2002] [since plaintiff could have raised the issue of equitable distribution in the matrimonial action but failed to do so, she is barred by res judicata principles from relitigating the issue]; Alster v. Alster, 159 AD2d 671, 672 [1990] [where a determination has been made in a matrimonial action with respect to issues of property or financial assets, the courts have invoked the doctrine of res judicata to bar subsequent litigation between the parties concerning related questions which could have been decided in the original action]; Zollner v. Zollner, 263 AD2d 454, 455 [1999] [by virtue of her failure to litigate the issue of equitable distribution or to include an express provision in the parties' stipulation of settlement as to a future distribution of, inter alia, the defendant's pension, the plaintiff was barred by the doctrine of res judicata from seeking any further equitable distribution]; Mormile v. Mormile, 149 AD2d 573 [1989] [where the question of title to the marital premises could have been but was not raised and litigated in the matrimonial action, a party who had a full and fair opportunity to seek title is barred by res judicata principles from subsequently reopening that issue]).
Jurisdiction over the Husband
In the alternative, the court finds that it cannot adjudicate the wife's claims for ancillary financial relief in that it has not acquired personal jurisdiction over the husband.
It is beyond dispute that the husband resides in Puerto Rico, not in New York State ( see generally Senhart v. Senhart, ___ AD3d ___, 2005 NY App Div LEXIS 5300 [2005] [domicile requires bodily presence in a place with an intent to make it a fixed and permanent home]). New York may exercise long-arm jurisdiction over a nondomiciliary defendant in a matrimonial action involving a demand for financial relief provided New York was the matrimonial domicile of the parties before their separation, or the defendant abandoned the plaintiff in New York, or the claim for financial relief accrued under the laws of New York or an agreement executed in this State.
CPLR 302 (b) provides that: "Personal jurisdiction over non-resident defendant in matrimonial actions or family court proceedings. A court in any matrimonial action or family court proceeding involving a demand for support, alimony, maintenance, distributive awards or special relief in matrimonial actions may exercise personal jurisdiction over the respondent or defendant notwithstanding the fact that he or she no longer is a resident or domiciliary of this state, or over his or her executor or administrator, if the party seeking support is a resident of or domiciled in this state at the time such demand is made, provided that this state was the matrimonial domicile of the parties before their separation, or the defendant abandoned the plaintiff in this state, or the claim for support, alimony, maintenance, distributive awards or special relief in matrimonial actions accrued under the laws of this state or under an agreement executed in this state. The family court may exercise personal jurisdiction over a non-resident respondent to the extent provided in sections one hundred fifty-four and one thousand thirty-six of the family court act."
"In addition to establishing one of these predicates for jurisdiction, it must also be shown that the defendant has certain minimum contacts with New York ( see, International Shoe Co. v. Washington, 326 US 310, 316). Whether the 'minimum contacts' requirement is satisfied depends upon whether the quality and nature of the defendant's activities in New York are such that it is reasonable and fair to require him or her to defend an action in this State ( see, Kulko v. California Superior Ct., 436 US 84, 92)."
( Babu v. Babu, 229 AD2d 758, 758-759).
Herein, any claim that the parties' maintenance of a marital residence in New York State is sufficient to establish jurisdiction must fail, since both the husband and the wife allege that they last resided in New York as husband and wife almost 25 years before the wife commenced Action No. 1 here. "It has been held that the phrase 'before their separation' as contained in CPLR 302 (b) does not mean that personal jurisdiction exists if the parties had their matrimonial domicile in New York at any time before their separation" ( Klette v. Klette, 167 AD2d 197, 198). Hence, it has been held that the New York court did not have personal jurisdiction over the husband where the marital residence of the parties ceased to be in New York in 1973 and the wife commenced an action in approximately 1989 seeking to enforce and modify a Connecticut divorce judgment entered on December 22, 1981, where the parties had resided in that state for approximately eight years at the time that the judgment was rendered ( id.; see also Sovansky v. Sovansky, 139 AD2d 724 [personal jurisdiction could not be sustained over defendant since the parties had only lived in New York for 10 months after their marriage, when they moved to Michigan, where they lived together for six years before separating]; Lieb v. Lieb, 53 AD2d 67, 72 [jurisdiction did not attach since the parties had not resided in New York for 12 years prior to their separation]).
Similarly, both allege that the wife abandoned the husband in Puerto Rico in 2000, when she returned to New York, so that the cause of action did not accrue in this state ( cf. Klette, 167 AD2d at 198 [plaintiff's cause of action did not accrue under the law of New York where she sought reimbursement under the separation agreement, since the claims were all based upon an agreement and judgment of divorce which were negotiated, drafted and executed in Connecticut]; Sciame v. Sciame, 54 AD2d 977 [the support provisions of a judgment accrued under the laws of this State where the parties spent their entire married life together in this State prior to the judgment of separation]; see generally Lieb, 53 AD2d at 70 [each of the three alternative grounds that permit the court to exercise jurisdiction over an out-of-state defendant pursuant to CPLR 308 (b) reflects involvement of the authority of this State, serious marital misconduct under the State's existing law, or disregard of an order, judgment or agreement which has the sanction of our State law]).
Further, the court finds that the husband's contacts with New York are insufficient to satisfy due process so as to require him to defend the actions commenced by his wife against him here. In so holding, the court rejects the wife's assertion that the husband's trips to New York, to his office in White Plains, or to visit with the family, are sufficient to allow the court to exercise personal jurisdiction over him. In this regard, the wife's claim that the husband's employment with the United States Department of Transportation is a factor to be considered in establishing jurisdiction here is of little relevance, since he undeniably worked in Puerto Rico and traveled to the States from time to time. Further, in claiming that the husband is in this State often and for extended periods of time, the wife points to only one seven day trip in 2002 and three trips in 2003, two for approximately six days and the third for two days; the same travel records also indicate that the husband traveled to Texas and New Jersey. These occasional business trips are insufficient to confer jurisdiction over the husband for purposes of granting ancillary financial issues arising out of the parties' marriage ( see Leslie GG v. William HH, 175 AD2d 378, 380 [respondent, by his act in Colorado of allegedly conceiving a child subsequently born in New York, cannot be said to have purposefully availed himself of the benefits and protections of New York's law]; Klette, 167 AD2d at 199 [defendant's visits to his children, their schools and therapists in this State or his occasional presence at business meetings here failed to establish sufficient contacts with the State to justify extending in personam jurisdiction over him, since the contacts were "so attenuated that a finding that personal jurisdiction existed would violate due process principles"]; see generally Browne v. Browne, 53 AD2d 134, 137 [constitutional due process is satisfied and defendant's contacts with New York were such that the action against him did not offend traditional notions of fair play and substantial justice under circumstances where the parties were lifelong residents of New York from their marriage in 1953 until the defendant left for Texas in late 1973 and plaintiff and three children born of the union continue to reside here]).
Similarly, the wife's reliance upon the long-arm jurisdiction provided by CPLR 302 (1) is misplaced, since that provision is limited to a "cause of action arising from any of the acts enumerated in this section." Contrary to the wife's assertion, her demands for divorce, maintenance, equitable distribution and/or counsel fees do not arise out of any business that the husband transacted or any tortious conduct that he was engaged in while in this State ( see generally Hi Fashion Wigs v. Peter Hammond Advertising, 32 NY2d 583 [the purpose of CPLR was to extend the jurisdiction of the state courts to nonresidents who have engaged in some purposeful activity in the state in connection with the matter in suit]; accord Ferrante Equipment Co. v. Lasker-Goldman, 26 NY2d 280).
Conclusion
For the above stated reasons, the husband's motion to dismiss Action No. 1 and Action No. 2 is granted. All relief requested by the wife is denied. The court's order requiring the husband to pay temporary maintenance to the wife is vacated; the discretion to adjust any payments already made is left to the court in Puerto Rico determining the wife's entitlement to equitable distribution and/or alimony.
The foregoing constitutes the order, judgment and decision of this court.