Opinion
No. 4169/2013.
07-09-2014
L.A.B., Plaintiff, v. B.M., Defendant.
Neena Tankha, Esq., Cohen Clair Lans Greifer & Thorpe LLP, New York, Attorney for Plaintiff. William V. Cally, Esq., Law Firm of William V. Cally, P.C., White Plains, NY, Attorney for Defendant.
Neena Tankha, Esq., Cohen Clair Lans Greifer & Thorpe LLP, New York, Attorney for Plaintiff.
William V. Cally, Esq., Law Firm of William V. Cally, P.C., White Plains, NY, Attorney for Defendant.
Opinion
PAUL I. MARX, J.
The following papers, numbered 1 to 9 were read on Plaintiff's motion for pendente lite relief and Defendant's cross motion to dismiss, or in the alternative, for pendente lite relief:
| Order to Show Cause/Affidavit of L.A.B./Affirmation of Neena Tankha, Esq./ Exhibits A–J | 1–3 |
| Notice of Cross Motion/Affidavit of B.M./Affirmation of William V. Cally, Esq./ Memorandum of Law/Exhibits 1–13 | 4–7 |
| Reply Affirmation of Neena Tankha, Esq./Exhibits A–F | 8 |
| Affirmation in Opposition of Neena Tankha, Esq./Exhibits A–P | 9 |
Upon reading the foregoing papers, it is ORDERED that the applications are disposed of as follows:
Plaintiff L.A.B. moved by Order to Show Cause filed on May 5, 2014 for an order granting the following pendente lite relief: (1) awarding Plaintiff $50,000.00 in interim counsel fees; and (2) awarding Plaintiff $5,000.00 for fees on the motion.
The Court signed the Order to Show Cause and the parties were advised that no appearances would be required on the return date, May 22, 2014.
Defendant B.M. cross moved on May 19, 2014 to dismiss the action pursuant to CPLR § 3211, to stay the action pending determination of Defendant's motion to dismiss, and for $5,000.00 for fees on the motion, or, in the alternative, for an order granting the following pendente lite relief: (1) awarding Defendant $20,000.00 in interim counsel fees; and (2) permitting Defendant to sell the White Plains condominium.
Factual Background
Plaintiff was born and raised in Nicaragua; she holds only a Nicaraguan passport. Defendant is a U.S. citizen who holds a U.S. passport. The parties met in Nicaragua while both parties were attending a wedding. The parties were married in Nicaragua in a civil ceremony in 2003 and a religious ceremony in 2004. After they were married, the parties lived together in Defendant's Manhattan apartment. The parties have two children: R.M., born in Manhattan; and B.M., born in Nicaragua.
Shortly after the birth of their first son, Plaintiff moved back to Nicaragua. According to Plaintiff, Defendant obtained permission from his employer to work remotely from Nicaragua for several days each month. This allowed Defendant to travel each month between New York and Nicaragua, where Plaintiff and the parties' child (and later children) resided.
Affirmation in Opposition of Neena Tankha, Esq. ¶ 26.
The parties own three properties in Nicaragua. In addition, Defendant owns what he describes as a separate property condominium in New York. The parties established a corporation in Nicaragua to purchase two of their Nicaraguan properties. The parties proceeded to build homes on those two properties.
Plaintiff is a homemaker. She has a Bachelor of Arts in business administration and a Master's Degree in marketing. She has taken online educational courses in psychology as well. She resides with the parties' children in one of the parties' properties in Managua, Nicaragua. Defendant is a Risk Manager at Credit Suisse Securities, LLC. He has a Bachelor of Science and a Master of Business Administration. Defendant resides in a condominium in White Plains, New York.
The parties' marital difficulties began in Fall 2013. On October 14, 2013, Plaintiff notified Defendant of her desire to divorce. Plaintiff claims that the same day, Defendant cancelled her credit card. Plaintiff alleges that this was only the beginning of Defendant's attempts to eliminate financial support for her and the children. On November 14, 2013, a Nicaraguan attorney emailed Defendant on behalf of Plaintiff stating that “[Plaintiff] has appointed me her legal counsel in divorce proceedings to be initiated. Although [Plaintiff] is aware that she is entitled to file for divorce before the courts of New York ... she has no interest in doing so ... In order to arrange a meeting with your legal counsel in Nicaragua, please provide his name.”
Plaintiff's Opposition Exhibit H. Plaintiff submits a copy of an email from American Express in support of this statement. The Court notes that this email merely states that a request for a replacement card is being processed by the company. The email was sent directly to Plaintiff and provided a phone number to call if the request for the replacement card was not authorized.
Defendant's Exhibit 3.
Before Defendant obtained Nicaraguan counsel, on December 23, 2013, Plaintiff filed a summons with notice for dissolution of the parties' marriage in New York based upon the claimed irretrievable breakdown of the parties' marriage pursuant to Domestic Relations Law § 170(7). On January 13, 2014, Defendant filed for divorce in Nicaragua. On January 21, 2014, Plaintiff filed her verified complaint in New York. The parties dispute the status of the Nicaraguan divorce action; however, neither party disputes that it remains active.
Defendant's Motion to Dismiss
In his cross motion, Defendant asks this Court to dismiss the instant action for the following reasons: (1) Plaintiff's failure to sufficiently allege facts to establish personal jurisdiction as required under DRL §§ 230, 231 ; (2) lack of subject matter jurisdiction over the assets and properties in this case under CPLR § 3211(2) ; (3) Plaintiff's lack of legal capacity and standing to assert her causes of action under CPLR § 3211(3) ; (4) collateral estoppel; (5) res judicata; (6) Plaintiff's failure to state a cause of action upon which relief can be granted pursuant to DRL § 170(7) ; (7) lack of personal jurisdiction over Defendant; (8) Plaintiff's failure to allege her cause of action with the specificity required under CPLR § 3016 ; (9) forum non conveniens; (10) improper forum; and (11) Plaintiff's failure to establish that she is a New York resident or domiciliary under DRL §§ 61, 231. Because Defendant's motion disputes the jurisdiction of this Court, it will be addressed first.
Defendant's cross motion was not authorized by assigned Court Attorney Referee Irene Ratner, Esq. as required by Rule E of the Westchester County Matrimonial Part Operational Rules, but is being considered by the Court due to the relief sought.
Durational Residency Requirement
An action for divorce may only be maintained in New York where one of five residency requirements are met. DRL § 230. Here, only two residency requirements are relevant. To maintain this action in New York, Plaintiff must have alleged sufficient facts to prove either: (1) “the parties have resided in [New York] as husband and wife and either party [was] a resident thereof when the action [was] commenced and has been a resident for a continuous period of one year immediately preceding”; or (2) “[e]ither party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action.” DRL §§ 230(2), 230(5).
Courts have noted that residency in this context may be established “by either the traditional method of proving a party has been domiciled or, in the alternative, has resided in New York State for the continuous period of time specified above.” Unanue v. Unanue, 141 A.D.2d 31, 38–39 [2nd Dept 1988]. Residence, in contrast to domicile, is determined by “objective fact findings as to where the party physically lived,” not the party's subjective intent. Unanue, supra at 39. A party may maintain more than one residence. Davis v. Davis, 144 A.D.2d 621, 621 [2nd Dept 1988] (citing Antone v. General Motors Corp., Buick Motor Div., 64 N.Y.2d 514 [1984] ). Where a party maintains more than one residence, the court will determine whether any other place exists to which a party returned as frequently or with such regularity. Weslock v. Weslock, 280 A.D.2d 278, 278 [1st Dept 2001] ; Davis, supra at 621.
It is undisputed that the parties lived together as husband and wife in Manhattan for approximately three years. The parties further agree that Plaintiff is not a New York resident. The parties dispute whether Defendant is, and has been, a New York resident for at least one year prior to the filing of this action. In Defendant's papers, he argues that neither he nor Plaintiff are domiciled in New York and he is not a resident of New York because he “commutes” to New York from Nicaragua.
Defendant contends that “the parties have not resided in [New York] as husband and wife since ... early 2008.” Affirmation of William V. Cally, Esq. at p. 10. The Court notes that for satisfaction of DRL § 230(2), the parties need not have recently lived as husband and wife in New York.
Defendant is a full-time employee of Credit Suisse at their Manhattan office. Defendant owned an apartment in Manhattan, purchased prior to the parties' marriage, where the parties lived until November 2006 when Plaintiff returned to Nicaragua and Defendant sold the apartment. Less than six months after the sale of the Manhattan apartment, Defendant purchased a condominium in White Plains, New York. Defendant has maintained his condominium in White Plains since 2007. Defendant uses his White Plains address on all of his important financial documents: the parties' federal income tax returns for 2008, 2009, 2010, 2011, and 2012, his W–2s, his mortgage, his home equity loan, and his checking account. See e.g., Bourbon v. Bourbon, 259 A.D.2d 720, 721 [2nd Dept 1999].
Plaintiff's Reply Exhibits A–E.
Plaintiff's Exhibit A.
Plaintiff's Opposition Exhibit N.
Plaintiff's Opposition Exhibit O.
Plaintiff's Opposition Exhibit P.
In Defendant's own words, he “[has] limited friends and resources in Nicaragua.” Further, Defendant does not provide sufficient evidence such as plane tickets, credit card receipts, or correspondence with his employer in support of his broad assertion that he was “commuting from Nicaragua” to his full time job in New York. Accordingly, the Court finds that Defendant is a New York resident currently and was a New York resident when this action was commenced and for at least one year preceding the filing. Hence, the Court has jurisdiction over the proceeding.
Defendant's Affidavit ¶ 11.
Personal Jurisdiction
Plaintiff submits an affidavit of service of the summons with notice at the White Plains Metro North station to establish personal jurisdiction over defendant. Defendant admits that he was served personally with a copy of the summons and notice while physically present in New York. Therefore, Plaintiff has demonstrated that she obtained personal jurisdiction over Defendant. See Dantin v. Masi, 95 AD3d 817, 817 [2nd Dept 2012] (citing CPLR § 308[1] ). The inquiry next turns to whether, even given that this Court has jurisdiction, it should hear and determine the issues raised.
Defendant's Affidavit ¶ 8.
Forum Non Conveniens
“When the court finds that in the interest of substantial justice the action should be heard in another forum, the court, on the motion of any party, may stay or dismiss the action in whole or in part on any conditions that may be just.” CPLR § 327(a). “Although a New York court may have jurisdiction over a claim, it is not, of course, compelled to retain jurisdiction if the claim has no substantial nexus with New York.” Banco Ambrosiano, SPA v. Artoc Bank & Trust Ltd., 62 N.Y.2d 65, 74 [1984] (citations omitted).
Generally, on a motion to dismiss on the ground of forum non conveniens, the burden is on the movant to demonstrate the relevant factors that militate against a New York court's acceptance of the litigation. Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 478–79 [1984]. Dismissal on the ground of forum non conveniens lies in the sound discretion of the trial court. Islamic Republic of Iran, supra at 478. A court must consider and balance relevant private or public interest factors when determining whether to dismiss a case on this ground, including but not limited to, the burden on the New York courts, the potential hardship to the defendant, the availability of an alternative, more convenient forum, the residency of the parties, and where the transaction out of which the cause of action arose occurred. Islamic Republic of Iran, supra at 479. No one factor is controlling. Turay v. Beam Bros. Trucking, Inc., 61 AD3d 964, 966 [2nd Dept 2009].
Here, the Court recognizes that Plaintiff and the children are Nicaraguan domiciliaries and residents. The parties' eldest child has not lived in New York since infancy and the parties' youngest child has never lived in New York. The parties' children have never attended school in New York. The parties' children participate in sports clubs in Nicaragua and have an established social life there.
Plaintiff alleges that because the parties have agreed on custody, the Court should disregard any of Defendant's arguments relating to dismissal of the action based upon the children's home state under the Uniform Child Custody Jurisdiction Act. The Court rejects Plaintiff's argument. The parties have not resolved access nor have the parties filed any custody stipulation with this Court. It follows that this Court has not so-ordered a custody stipulation. The parties' children remain a significant part of this litigation.
In support of this assertion, Plaintiff only attaches a report of Referee Ratner which states in relevant part “Custody-resolved ... Access-close to resolution.” Plaintiff's Opposition Exhibit G.
The parties own three properties in Nicaragua. Defendant approximates that these properties cost $1,000,000.00 to obtain and develop. Plaintiff does not dispute this. During their marriage, Plaintiff set up a Nicaraguan corporation, Castin Inversiones SA (“Castin”), with the assistance of her uncle, an attorney in Nicaragua. Through Castin, the parties purchased the two Nicaraguan properties on which they built homes. Defendant's interest in Castin is in dispute. Defendant alleges that, although he was led to believe that he and Plaintiff were co-owners in Castin, Castin was actually set up in the names of Plaintiff and her mother.
Plaintiff retorts by characterizing Defendant's alleged dispute in Castin as a “red herring” concocted to support his motion to dismiss. Plaintiff does not provide sufficient evidence to refute Defendant's contention. Plaintiff attaches to her opposition papers purported copies and a “certified translation” of share certificates in Castin to prove that she and Defendant are co-owners of Castin. However, the Court declines to consider the copies of these certificates as none of the documents are attested to or accompanied by a final certification as required under CPLR § 4542(a). Further, the Court declines to consider the “certified translation” of these certificates as they fail to comply with CPLR § 2101(b).
Plaintiff's Opposition Exhibit J.
Plaintiff's Opposition Exhibit K.
Defendant alleges that to establish his interest in Castin he would have to call a multitude of witnesses from Nicaragua, including Plaintiff's parents, Plaintiff's uncle and members of his law firm, Plaintiff's siblings, the secretary of Castin, and contractors who worked on the properties purchased through Castin. Defendant alleges that this would be “prohibitively expensive.” Defendant further alleges that Nicaraguan courts may not honor subpoenas and directives issued by this Court, making it impossible to present his case for equitable distribution.
Plaintiff alleges that the majority of the parties' assets are in New York. Specifically, Plaintiff alleges that all the parties' liquid assets are held in New York. Defendant estimates the value of these assets, Defendant's 401K and Roth IRA, to be approximately $250,000.00. Plaintiff does not disagree with this valuation. Defendant owns a condominium in White Plains which was purchased in 2007 for $800,000.00 ostensibly from the proceeds of the sale of separate property. The current mortgage on that property is approximately $400,000.00. The location of operative facts in this case is clearly Nicaragua. Plaintiff and the parties' two children are Nicaraguan residents and domicilaries. The parties' eldest child has not lived in New York since infancy and the parties' youngest child has never lived in New York. The parties' children have only attended school in Nicaragua. Nearly all of the witnesses and evidence are located in Nicaragua. Further, the majority of the parties' assets that would be subject to appraisal and equitable distribution are in Nicaragua. Three of the parties' four properties, including two homes, are located in Nicaragua. The parties' have interests in a Nicaraguan corporation which would be subject to financial evaluation and perhaps further civil litigation. If this Court were to attempt to equitably distribute this property, it would encounter language barriers and unnecessary delays in the appraisal and financial evaluation of these assets. This carries heavy weight in the Court's consideration of the forum non conveniens argument, as, contrary to Plaintiff's assertion, it is the convenience of the court, not that of either litigant, that controls this determination. See Vaage v. Lewis, 29 A.D.2d 315 [2nd Dept 1968] (citing William v. Seaboard Airliner RR Co., 9 A.D.2d 268 [1st Dept 1959] ).
Defendant's Exhibit 7.
Plaintiff's Opposition Exhibit N.
Further, Nicaragua exists as a suitable alternative forum for the parties' litigation. Plaintiff is a citizen of Nicaragua, the parties were married in Nicaragua, and the parties' children reside in Nicaragua. Plaintiff retained matrimonial counsel in Nicaragua and began settlement discussions with Defendant prior to the filing of this action. Defendant also obtained matrimonial counsel in Nicaragua. A parallel action is pending in Nicaragua.
Although Plaintiff emphasizes that the Nicaraguan action was filed subsequent to the New York action, the “first to file” rule is not followed mechanically and the Nicaraguan filing is evidence that an alternative forum is available for the litigation. See e.g., Cetenaro v. Poliero, 2009 N.Y. Slip Op 51992 [U] at *4 [Sup. Ct ., Queens County 2009]. It is unclear based upon the parties' submissions the extent of progress in the Nicaraguan litigation. However, that is not determinative. It must be noted that this Court would be saddled with adjudicating the instant case involving significant foreign assets while a foreign court could decide the case differently. Sturman v. Singer, 213 A.D.2d 324, 325 [1st Dept 1995]. Although the parties have proceeded with discovery in this action, it has not been shown that the same discovery will not be available in the Nicaraguan action. See Bader & Bader v. Ford, 66 A.D.2d 642, 647 [1st Dept 1979].
Defendant would be unduly burdened by sustaining this litigation in New York. Although Defendant is a resident of New York, he would be compelled to produce witnesses from Nicaragua to establish his interest in the parties' Nicaraguan properties. Further, as the monied spouse, Defendant may be required to pay for a substantial portion of not only each real property appraisal and financial evaluation necessary in this case, but translation of necessary supporting documents.
The Court notes that the factor of “where the transaction out of which the cause of action arose occurred” has nominal weight in this case. Plaintiff's complaint seeks a divorce based on “no-fault” grounds, the irretrievable breakdown in the parties' relationship for at least six months pursuant to DRL § 170(7). Defendant has not cross claimed for divorce on different grounds. Although Referee Ratner's report indicates that the grounds for divorce are not resolved, this Court agrees with the case law which holds that there is no defense to a party seeking a divorce based on irretrievable breakdown in the parties' relationship and “a plaintiff's self-serving declaration about his or her state of mind is all that is required for the dissolution of a marriage on the ground that it is irretrievably broken down.” D.R.C. v. A.C., 32 Misc.3d 293, 306 [Sup.Ct. Nassau County 2011] ; Vahey v.. Vahey, 35 Misc.3d 691, 694 [Sup.Ct. Nassau County 2012]. Accordingly, this factor has little weight in the Court's determination of forum non conveniens.
Defendant's Exhibit 1. “Grounds-not resolved.”
The Court finds that this case lacks sufficient nexus to New York. As such, this Court is not required to retain jurisdiction over the case. Smolik v. Turner Construction Co., 48 AD3d 452, 454 [2nd Dept 2008]. Clearly, the instant case is best adjudicated within the jurisdiction where the children and Plaintiff reside, where the majority of the parties' assets are located, and where nearly all of the witnesses are located. Accordingly, Defendant's motion to dismiss based on forum non conveniens is granted. As such, the Court need not address the balance of the parties' applications, except as to fees on the instant motions.
Parties' Requests for Fees on their Motions
In their motions, both parties ask for $5,000.00 in attorney's fees for bringing their respective motions. In support of her application, Plaintiff's counsel in her affirmation states “[i]n filing the instant motion, I have spent approximately three to four hours. In addition, I anticipate spending approximately five to six hours to review defendant's answering papers, prepare and file a reply and any appearance [sic] for any subsequent Court appearance on this application.” Plaintiff's counsel bills at $500.00 per hour; her supervising attorney bills at $625.00 per hour.
Affirmation of Neena Tankha, Esq. ¶ 39.
Affirmation of Neena Tankha, Esq. ¶ 40.
In support of Defendant's application, Defendant's counsel states that he has “spent approximately 42 hours on this motion alone including research, drafting of Defendant's papers, drafting the memo of law and [his] own Affirmation, sending correspondence to [his] client and engaging in telephone calls with [his] client. None of this time would have been necessary had Plaintiff chosen the correct forum of Nicaragua.” Defendant's counsel bills at $400.00 per hour. In opposition to Plaintiff's application for fees on her motion, Plaintiff states that “Plaintiff has also failed to demonstrate in her application the reasonable probability of her success on the merits in the underlying action.”
Affirmation of William V. Cally, Esq. ¶ 27.
Affirmation of William V. Cally, Esq. ¶ 26.
Defendant's Memorandum of Law at p. 18.
An award of attorney's fees on a motion lies within the discretion of this Court. Here, Plaintiff had standing to file for divorce and maintain her action in New York. She did not improperly file in New York. Therefore, the Court denies Defendant's request for fees on his motion. The Court did not reach the merits of Plaintiff's motion. Accordingly, the Court denies Plaintiff's request for fees on her motion.
All other requests for relief are denied as moot.