Opinion
800032/2020
08-17-2020
Raquel KATZ, Plaintiff, v. Michael KATZ, Defendant.
Carol Most, Esq., Most & Schneid P.C., 120 Bloomingdale Road, Ste. 104, White Plains, NY 10605, 914-997-9181, carolmost@cwmost.com Rachel Marks, Esq., Schonfeld & Goldring, 112 Spruce St., Ste. A, Cedarhurst, NY 11516, 516-569-5001, rmarks@schonfeldandgoldring.com
Carol Most, Esq., Most & Schneid P.C., 120 Bloomingdale Road, Ste. 104, White Plains, NY 10605, 914-997-9181, carolmost@cwmost.com
Rachel Marks, Esq., Schonfeld & Goldring, 112 Spruce St., Ste. A, Cedarhurst, NY 11516, 516-569-5001, rmarks@schonfeldandgoldring.com
David J. Gugerty, J.
The following papers read on this motion:
Order to Show Cause, Affidavit, Affirmation, and Exhibits x
Memorandum of Law in Support x
Order to Show Cause, Affidavit, Affirmation, and Exhibits x
Notice of Motion, Affirmation, and Exhibits x
Amended Affidavit in Opposition and in Support, Affirmation, and Exhibits x
Memorandum of Law in Opposition and in Support x
Notice Cross Motion, Affirmation, Affidavit, and Exhibits x
Affidavit in Opposition, Affirmation, and Exhibits x
Reply Affirmation and in Opposition, Affidavit, and Exhibits x
Upon the foregoing papers, the plaintiff moves by order to show cause (Mot. Seq. 001) for an order: (a) setting an access schedule wherein the plaintiff shall have access on alternative weekends from Thursday night to Sunday afternoon at 2:00 p.m. with the defendant to transport the children to and from the plaintiff's home in Lawrence, New York, commencing on February 27, 2020 or as soon thereafter as is practicable; (b) awarding the plaintiff daily telephone and Face Time access when the children are in the care of the defendant or the defendant's mother, without interference; (c) requiring the defendant to immediately reinstate health insurance for the plaintiff; (d) requiring the defendant to pay the plaintiff's unreimbursed medical expenses resulting from the defendant's cancellation of the plaintiff's medical insurance; (e) requiring the defendant to maintain health insurance for the plaintiff and the parties' children; (f) requiring the defendant to pay to the plaintiff's counsel fees in the sum of $40,000.00; (g) permitting service by email and Federal Express; and (h) for such other and further relief as this Court may deem just and proper.
The defendant moves by order to show cause (Mot. Seq. 002) for an order: (a) dismissing the instant action in its entirety due to lack of subject matter jurisdiction, pursuant to C.P.L.R. § 3211, or in the alternative, dismissing the child custody portion of the instant action, pursuant to D.R.L. § 76-a, as the parties' two children have no significant connection to the state of New York and substantial evidence is no longer available in the state of New York concerning the children's care, protection, or personal relationships; (b) Dismissing the child custody portion of the instant action, pursuant to D.R.L. § 76-a, as the parties' two children do not presently reside in the state of New York; (c) dismissing the child custody portion of the instant action, pursuant to D.R.L. § 76-a, as the state of New York is an inconvenient forum; and (d) for such other and further relief as this Court may deem just and proper.
The plaintiff moves by notice of motion (Mot. Seq. 003) for an order: (1) issuing a subpoena to be served upon Sam Younger for the production of records relating to the defendant's submissions to the New York State Office of Court Administration; and (2) for such other and further relief as this Court may deem just and proper.
The defendant moves by notice of cross motion (Mot. Seq. 006) for an order: (a) denying the relief requested by the plaintiff; (b) dismissing the instant action in its entirety due to lack of subject matter jurisdiction, pursuant to C.P.L.R. § 3211, or in the alternative, dismissing the child custody and child support portions of the instant action, pursuant to D.R.L. § 76-a and § 76-f, directing that all matters of custody and access to the two infant children of the marriage be adjudicated in the Circuit Court of Baltimore City, Maryland; (c) awarding the defendant fees related to the delay in releasing the parties' vehicle from impound; (d) directing the plaintiff to pay the defendant's counsel fees in accordance with N.Y.C.R.R. § 130-1.1(a) and (c), in the sum of $15,000.00; and (e) for such other and further relief as this Court may deem just and proper.
BACKGROUND
The parties were married on August 19, 2007 in Kings County (Brooklyn), New York. After the wedding and until June 2009, the parties resided in Baltimore, Maryland while the defendant completed law school. Upon the defendant's graduation, the parties moved to Lawrence, New York in Nassau County, residing with the plaintiff's parents while the defendant studied for the New York State Bar Exam. The defendant eventually obtained a job with a real estate management firm and the parties resided in Passaic, New Jersey beginning in June 2010. During this time, on September 25, 2011, the parties' twin children were born. The defendant lost his job in or around December 2013, and the parties moved back in with the plaintiff's parents in Lawrence, New York with the children in or around January 2014. In June 2014, the defendant secured another job and the parties and the children moved into an apartment in Lawrence, New York.
In June 2016, the parties went on vacation to Florida leaving the children with the plaintiff's parents. While on vacation, the plaintiff collapsed, suffering a traumatic brain injury, and going into a coma. While in the hospital, the defendant's parents drove from their residence in Baltimore to pick up the children and bring them back to Baltimore so that the plaintiff's parents could go to Florida to visit the plaintiff. After three weeks in the hospital in Florida the plaintiff was transferred to a hospital in Nassau County. Five weeks later the plaintiff awoke from her coma and transferred to an inpatient rehabilitation facility in Nassau County.
In March 2017, the plaintiff was discharged. She and the defendant moved back into the plaintiff's parents' house while the plaintiff began outpatient rehabilitation and the children remained in Baltimore. The plaintiff is impaired on her right side, needs assistance to walk, but states that she can care for her children with help that is available to her on a full time basis. She asserts that shortly after being discharged, her psychotherapist recommended that she and the defendant move out of her parents' home and live on their own for a few months before bringing the children back from Baltimore to live with them. According to the plaintiff, the defendant refused to do so, which is why she still lives with her parents and the children remain inBaltimore with the defendant's mother (the defendant's father passed away in December 2018).
The defendant, who works in New York as a licensed attorney, had been residing with the plaintiff's parents during the week while traveling to Baltimore on the weekends to be with the children and taking the plaintiff with him. In or around April 2019, the defendant stopped taking the plaintiff with him to Baltimore on the weekends and in September 2019 he moved into an apartment in Brooklyn closer to his office. The children have only come to New York to visit the plaintiff on a few occasions despite the plaintiff requesting that the defendant bring them regularly and for special occasions.
On or about January 20, 2020, the plaintiff commenced this action for divorce by filing a summons and complaint. The defendant, on or about February 27, 2020, filed a complaint in the Circuit Court for Baltimore City for child custody and child support, alleging that he "is a resident of Baltimore City, State of Maryland." He further alleges in the complaint that the children's "residence" since June 2, 2016 is in Baltimore, Maryland, the location being the address of the paternal grandmother. On March 2, 2020, the plaintiff filed Mot. Seq. 001 seeking, inter alia , a parenting schedule, and on March 27, 20020, the defendant filed Mot. Seq. 002 seeking, inter alia , dismissal of the instant action for lack of subject matter jurisdiction.
DISCUSSION
DISMISSAL
Jurisdiction over child custody matters is determined pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act ("U.C.C.J.E.A."), which has been adopted by both the states of New York and Maryland. The U.C.C.J.E.A. is codified in New York under D.R.L. Article 5-A, which provides for jurisdiction over an initial custody matter in D.R.L. § 76 as follows:
1. Except as otherwise provided in section seventy-six-c of this title, a court of
this state has jurisdiction to make an initial child custody determination only if:
(a) this state is the home state of the child on the date of the commencement of
the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
(b) a court of another state does not have jurisdiction under paragraph (a) of this
subdivision, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under section seventy-six-f or seventy-six-g of this title, and:
(i) the child and the child's parents, or the child and at least one parent or a
person acting as a parent, have a significant connection with this state other than mere physical presence; and
(ii) substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships;
(a) all courts having jurisdiction under paragraph (a) or (b) of this subdivision
have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under section seventy-six-f or seventy-six-g of this title; or
(b) no court of any other state would have jurisdiction under the criteria specified
in paragraph (a), (b) or (c) of this subdivision.
1. Subdivision one of this section is the exclusive jurisdictional basis for making
a child custody determination by a court of this state.
3. Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.
In establishing whether this state has jurisdiction over a custody proceeding the Court must first determine whether New York is the "home state" of the children. D.R.L. § 75-A [7] provides in pertinent part that, "'Home state' means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. A period of temporary absence of any of the mentioned persons is part of the period."
It is apparent that New York is not the "home state" in the instant matter as the children have been living in Maryland since 2016. Maryland also cannot be considered the "home state." Although the defendant now claims to have moved to Maryland as of September 2019, that was only four months prior to the commencement of the instant action. Therefore, for the purposes of determining the children's "home state," the defendant is not a resident of Maryland. Moreover, the paternal grandmother in Maryland has not been awarded legal custody of the children, nor is she claiming a right to legal custody. She is therefore not a "person acting as a parent" ( D.R.L. § 75-A [13] ; see , Defrank v. Wolf , 179 AD3d 676, 677 [2d Dept. 2020] ; Breselor v. Arciniega , 123 AD3d 1413, 1415 [3d Dept. 2014] ). As neither New York nor Maryland qualifies as the "home state" of the children, the analysis turns to whether there is jurisdiction under D.R.L. § 76(1)(b).
In looking at whether the children and at least one of the parties "have a significant connection with this state other than mere physical presence" the Court finds that this prong is satisfied. The Defendant attempts to argue that neither he nor the children have significant connections to New York because he has a Maryland driver's license, is registered to vote in Maryland, and he filed 2019 Maryland state income taxes. He further contends that because the children have been living in Maryland for six years where they attend school, have doctors, go to camp, and have friends, among other things, they have very little connection to New York other than visiting the plaintiff. But this belies the history of the family.
The parties were living in New York with the children as of January 2014, with their residence in the state only to be upended by the plaintiff's traumatic brain injury in June 2016, which led to the children residing with the paternal grandparents in Maryland while the parties remained in New York. It stands to reason that had the plaintiff not suffered this debilitating injury the family would have remained in New York to this day. While the plaintiff has remained in New York the entire time, the defendant has done so as well, at least during the week due to the location of his job. He is only now claiming to have moved to Maryland as of September 2019, although to date he is not a licensed attorney in the state of Maryland.
The Court is unmoved by where the defendant is registered to vote or from which state he obtained a driver's license. The defendant has been registered to vote in Maryland since 2002, demonstrating that he never changed it despite living out of state since at least 2010 when the parties moved to New Jersey. His failure to properly change his voter registration while living somewhere other than Maryland for a decade does not now give him the ability to claim Maryland residency. Similarly, although the defendant's current driver's license was issued in May 2019, there is no indication that he ever relinquished his Maryland driver's license upon his moves to New Jersey and New York.
The fact that the defendant is only claiming to be a Maryland resident since September 2019 only bolsters the disingenuous nature of using the driver's license and voter registration as evidence in support. The defendant's filing of his 2019 state tax return in Maryland in July 2020 after the filing of his motion to dismiss is similarly of no consequence. Having lived in New York since January 2014 to at least September 2019, if not to the present, and having worked in New York since June 2014 to the present, the defendant has a significant connection to the state.
As to the children, the defendant is correct that they have more of a connection to Maryland, having resided there since 2016. But D.R.L. § 76[1][b][i] simply requires that there be significant connections to New York, not that a test be conducted to determine to which state there are more connections. The children maintain connections in New York as their mother, the plaintiff, resides in New York, as do their maternal grandparents and other relatives, as well as family friends (see , Helmeyer v. Setzer , 173 AD3d 740, 742 [2d Dept. 2019] ). Although their school, doctor, camp, and other similar connections are in Maryland, this does not diminish the children's significant connections with New York (see , Vernon v. Vernon , 100 NY2d 960, 972 [2003] ). The Court further notes that these types of connections existed in New York prior to what was intended to be a temporary stay in Maryland to accommodate the plaintiff's rehabilitation.
Moreover, whether the children are brought to New York to visit the plaintiff is solely in the control of the defendant, and he began limiting their visits when the marriage started to fall apart. However, there is no dispute that the children frequently visited New York previously. The Court is therefore loath to reward the defendant for intentionally reducing the children's visits as the prior periods of visitation further significantly connect the children to New York (see , Vernon v. Vernon , 100 NY2d 960, 972 [2003] ; Blerim v. Racquel , 41 AD3d 306, 311 [3d Dept. 2007] ).
The defendant argues that most of the substantial evidence "concerning the child's care, protection, training, and personal relationships" ( D.R.L. § 76[1][b][ii] ) are in Maryland as that is where the children have been residing since 2016, attending school and camp, going to doctors, and making friends. But, again, the statute does not require the determination to be made based upon where a majority of the evidence is located. It just requires that there be substantial evidence in New York. As there is substantial evidence in New York, most notably the plaintiff and her witnesses, there is jurisdiction in New York under D.R.L. § 76[1][b].
However, "[t]he inquiry is not completed merely by determining that a jurisdictional predicate exists in the forum State, for then the court must determine whether to exercise its jurisdiction" ( Vanneck v. Vanneck , 49 NY2d 602, 609 [1980] ). Jurisdiction may be declined if it is determined "that New York is an inconvenient forum and that a court of another state is a more appropriate forum" ( Balde v. Barry , 108 AD3d 622, 623 [2d Dept. 2013] ).
The "determination as to whether a court is an inconvenient forum is left to the sound discretion of the trial court after consideration of [the] eight enumerated factors" in D.R.L. § 76-f [2][a]-[h] ( Matter of Frank MM v. Lorain NN , 103 AD3d 951, 952 [3d Dept. 2013] ):
(a) whether domestic violence or mistreatment or abuse of a child or sibling has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(b) the length of time the child has resided outside this state;
(c) the distance between the court in this state and the court in the state that would assume jurisdiction;
(d) the relative financial circumstances of the parties;
(e) any agreement of the parties as to which state should assume jurisdiction;
(f) the nature and location of the evidence required to resolve the pending litigation, including the testimony of the child;
(g) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(h) the familiarity of the court of each state with the facts and issues in the pending litigation.
A review of the factors finds that "a", "e", "g", and "h" are not applicable to the circumstances herein. The Court will therefore limit its review to factors "b", "c", "d", and "f".
Although the children have been residing in Maryland for approximately the last four years (factor "b"), the circumstances surrounding the move and resultant length of time spent there makes it immaterial in the Court's view. As recited herein above, the children did not move to Maryland with either parent. They were brought there to live with the paternal grandparents while the plaintiff rehabilitated from her traumatic brain injury. The move was intended to be temporary. It was only when the parties' marriage began to fall apart that the defendant started to assert his Maryland residency by doing things such as investigating whether he can waive into the Maryland Bar and filing Maryland state income taxes.
Whether the child custody proceeding is held in Baltimore, Maryland or Nassau County, New York, some witnesses will have to travel approximately two hundred miles between the two locations. Although the children will have to travel that distance if the proceeding is held in New York, that in and of itself is not the deciding factor (see, Matter of Frank MM v. Lorain NN , 103 AD3d 951 [3d Dept. 2013], where the court held that jurisdiction was proper in New York for one child and in Pennsylvania for the other child despite both living in Pennsylvania approximately two hundred miles from New York). As such, and because a decision regarding whether a venue is an inconvenient forum is dependent on the specific issues to be decided (see , Anthony B. v. Priscilla B. , 88 AD3d 590 [1st Dept. 2011] ), factor "c" is to be reviewed in conjunction with factors "d" and "f".
Financially there can be no dispute that it would be more burdensome for the plaintiff to travel to Maryland than it would be for the defendant to travel to New York. The defendant is employed while the plaintiff is not. Moreover, the defendant's job is located in New York where he maintains a residence. Logistically, as the plaintiff requires an aide, travel is more difficult for her.
In support of their jurisdictional arguments, both parties have delved into the gravamen of a custody determination, to wit; what is in the best interests of the children. Although such arguments are not particularly germane to the jurisdictional question, they do provide a window into the evidence that will be presented at a custody trial, which is relevant to the jurisdictional question.
While the plaintiff will appear to argue that it is in the children's best interests for her to have custody mainly because she was the primary care giver prior to her injury, the defendant is apparently going to argue that the plaintiff is unfit to have custody based upon her limitations as a result of her injury. The essential issue to be determined would therefore seemingly be the plaintiff's fitness. As the plaintiff lives in New York, her doctors and therapists are in New York, as are her family and friends, the evidence pertaining to her fitness is primarily in New York, making New York the more convenient forum (see , Jenkins v. Jenkins , 9 AD3d 622 [3d Dept. 2004] ; Helmeyer v. Setzer , 173 AD3d 740, 744 [2d Dept. 2019] ).
There is an argument to be made that important witnesses are located in Maryland who will have to travel approximately 200 miles, most particularly the children. And there will be an inconvenience in appointing an Attorney for the Children ("AFC") in New York while the children are living in Maryland. However, the AFC can meet with the children over FaceTime or Zoom, which has become standard practice in cases where everyone is located in Nassau County due to the protocols in place to prevent the spread of COVID-19. But even if it is preferred that the AFC meet with the children face to face, arrangements can be made to do so in conjunction with a trip to New York to visit the plaintiff. This can also be done if an in camera inspection is required by the Court.
With regard to witnesses such as the defendant's mother and other relatives, as well as friends, it is no more burdensome for them to travel to New York than it would be for the plaintiff's witnesses to travel to Maryland. Moreover, arrangements can be made to have them, and other witnesses such as teachers and doctors, "testify by telephone, audiovisual, or other electronic means" ( D.R.L. § 75-j[2] ; see , Helmeyer v. Setzer , 173 AD3d 740, 744 [2d Dept.] 2019; Matter of Belcher v. Lawrence , 98 AD3d 197, 202 [3d Dept. 2012] ; DeJac v. DeJac , 17 AD3d 1066, 1067 [4th Dept. 2005), again, something which has become commonplace in New York courtrooms in order to adhere to COVID-19 protocols.
As a result, the Court finds that New York is not an inconvenient forum. This Court therefore has jurisdiction over the entirety of the instant matter, including, but not limited to, the custody and child support portions.
Accordingly, the defendant's applications to dismiss the instant action, or in the alternative, to dismiss the custody and child support portions of the instant action and adjudicate them in Maryland, are DENIED.
MISCELLANEOUS
The defendant's application for fees related to the alleged delay in releasing the parties' vehicle from impound is referred to trial.
Upon the presentment of the plaintiff's order to show cause, the Court ordered the defendant to reinstate the plaintiff's health insurance and pay all unreimbursed medical expenses from the date of cancellation to the date of reinstatement. The plaintiff further seeks to have the defendant maintain health insurance for the plaintiff and the parties' children. Said application is GRANTED, and it is hereby,
ORDERED, that the defendant shall maintain health insurance for the plaintiff and the parties' children and pay all unreimbursed medical expenses throughout the pendency of this action.
The plaintiff seeks a visitation schedule wherein the children would be brought to New York on alternate weekends. She further seeks to have daily telephone and FaceTime access to the children when they are in the care of the defendant or the defendant's mother. Setting such schedules has been hampered by the jurisdictional issue. However, although the Court finds both requests to be reasonable, and urges the parties to come to a resolution now that the jurisdictional issue has been determined, the Court refers these issues to the preliminary conference scheduled herein below after the appointment of an AFC, which is being done by separate order simultaneously herewith.
The Plaintiff's application for an order issuing a subpoena upon Sam Younger for the production of records related to the defendant's filings with the New York State Office of Court Administration is GRANTED.
COUNSEL FEES
The plaintiff requests $40,000.00 in counsel fees, pendente lite . The defendant requests $15,000.00 in counsel fees for the filing of the motion to dismiss.
D.R.L. § 237 provides that, in a matrimonial proceeding, the Court may exercise its discretion to direct either spouse to pay the counsel fees of the other spouse. In exercising its discretion, the Court shall consider the equities and circumstances of each particular case (see, Basile v Basile, 122 AD2d 759 [2d Dept. 1986] ). The statute further provides that, "there is a rebuttable presumption that counsel fees shall be awarded to the less monied spouse." Additionally, "an award of interim counsel fees ensures that the non-monied spouse will be able to litigate the action, and do so on equal footing with the monied spouse." ( Prichep v. Prichep , 52 AD3d 61, 65 [2d Dept. 2008] ).
It is well settled that a party seeking counsel fees "need not establish indigency as a prerequisite to an award of counsel fees." ( Lenczycki v Lenczycki, 152 AD2d 621, 625 [2d Dept. 1989] ). The court must take "into account the parties' ability to pay, the complexity of the litigation, the nature, extent and reasonableness of the services rendered ... as well as the obstructionist conduct ... that has prolonged the litigation", if any, in determining the amount of the fees awarded. ( Merrick v Merrick, 190 AD2d 515, 516 [1st Dept. 1993] ).
Although there is a rebuttable presumption that counsel fees shall be awarded to the less monied spouse," the financial circumstances of the parties is not the sole factor to be considered by a court when determining whether an award of counsel fees should be granted. ( D.R.L. § 237 ). On the contrary, "all the other circumstances of the case" should be considered, including "the relative merit of the parties' positions." ( Prichep , 52 AD3d 61, 64, quoting DeCabrera v. Cabrera-Rosete , 70 NY2d 879, 881 [1987] ). Though this is not to say that a party's successful application on the substantive merits of a case will grant them immunity from paying their opposition's counsel fees, since "[t]he award is now measured by circumstances and discretion, irrespective of the outcome at trial." ( Chesner v. Chesner , 95 AD3d 1252, 1253 [2d Dept 2012] ; quoting O'Shea v. O'Shea , 93 NY2d 187, 192 [1999] ).
The defendant contends that the plaintiff did not make a good faith effort to resolve the motion to dismiss, implying that it was obvious that New York did not have jurisdiction, resulting in the defendant expending attorney's fees unnecessarily. As it turns out, the plaintiff, who disputes that no attempts at resolving the issue were made, had good reason to contest the defendant's motion.
There is no dispute that the defendant is the monied spouse. The defendant is a full-time practicing attorney while the plaintiff is presently disabled and unable to work. Prior to suffering her traumatic brain injury, the plaintiff, as the main care giver for the children, did not work outside of the home. However, the defendant alleges that the plaintiff, by her own admission, receives financial support from her parents. The defendant further alleges that the plaintiff has failed to avail herself of disability income.
Accordingly, the defendant's application for counsel fees is DENIED, and the plaintiff's application for counsel fees is GRANTED to the extent that it is hereby,
ORDERED, that the defendant shall pay to the plaintiff's counsel, Most & Schneid, P.C., $22,000.00 in interim counsel fees within thirty (30) days of this decision and order being emailed to the attorneys for the parties; and it is further
ORDERED, that if the defendant fails to pay the counsel fees awarded herein within the time directed above, plaintiff's counsel, Most & Schneid, P.C., is awarded a money judgment in said amount, with a credit for any partial payment made by the defendant. Upon such non-compliance, Most & Schneid, P.C., may file an affirmation of non-compliance with the Nassau County Clerk, along with a copy of this decision and order, and may then enter judgment.
Counsel and the parties are directed to appear for a preliminary conference via Skype on September 16, 2020 at 11:00 a.m.
This constitutes the decision and order of the Court.