Opinion
106291/10.
Decided March 8, 2011.
Attorneys for the Plaintiff: Willkie Farr Gallagher, by Mary Eaton, Esq., New York, NY.
Attorneys for the Defendant: Robert Dobrish, Esq. and Barbara Handschu, Esq., of Dobrish Zeif Gross, New York, NY.
In this plenary action for breach of a prenuptial contract, Defendant (the "Wife") makes a special appearance for the sole purpose of contesting the court's jurisdiction and moves by order to show cause to dismiss the claims for financial relief made by Plaintiff (the "Husband") and to dismiss the summons filed by the Husband, pursuant to CPLR Rule 3211(a)(8) for lack of personal jurisdiction. The Husband opposes that application and cross-moves for a preliminary injunction prohibiting the Wife from seeking, accepting or enforcing any award of temporary or permanent maintenance in any court in any jurisdiction.
Neither party submits a copy of the Husband's summons. The summons on file in this action with the New York County Clerk's office states that the nature of the action is "for breach of contract arising out of Defendant's breach of an antenuptial agreement (the "Agreement") entered into by Plaintiff and Defendant in the State of New York."
Background
The parties entered into an antenuptial agreement in New York on September 29, 1999 (the "Antenuptial Agreement") (Ex. A to the Wife's moving papers). The Antenuptial Agreement provides for the distribution of the marital estate and further provides that neither party will seek maintenance from the other (the agreement does not address child support). They were married in New York on November 12, 1999. There is one child of the marriage, a daughter born in March 2003. During the marriage the parties lived primarily in Malaysia, California and Singapore. Both parties currently reside in Singapore. Neither party is a New York domiciliary or resident.
On January 8, 2010, the Wife filed for divorce in Singapore and sought ancillary relief, including interim and permanent spousal support (Exhibit B to Wife's moving papers). The Husband appeared in that proceeding and filed a counter-claim for divorce. (Exhibit C to Wife's moving papers). The Singapore court awarded the Wife temporary unallocated support for the Wife and the child by Order dated May 13, 2010. That Order states that the award is made "without consideration of the pre-nuptial agreement dated 29 September 1999." (¶ E-4, page 7, Exhibit F to Wife's moving papers). The Husband obtained a stay and appealed the decision awarding interim maintenance. The High Court of Singapore granted the Husband's appeal and the interim maintenance award was denied. The Wife still seeks a final award of maintenance in the Singapore divorce action (Letter of Husband's Counsel dated August 16, 2010).
The Application to Dismiss for Lack of Long Arm Jurisdiction
The Wife asserts that this court lacks personal jurisdiction over her because she is a non-domiciliary of New York with no contacts or personal presence in the state. The Husband argues that New York has jurisdiction over this proceeding to enforce the terms of the Antenuptial Agreement because the contract was signed within this state. It is undisputed that the parties signed the Antenuptial Agreement in New York and that the agreement expressly provides that New York law will govern any controversy arising under it.
The parties were married in New York, but never resided as husband and wife in New York. The Wife also claims that she has no property in New York. ( See, Wife's Moving Aff. at ¶¶ 3, 7.)
The Husband asserts that the Wife's application is premature because a motion to dismiss based on CPLR Rule 3211(a)(8) for lack of long arm jurisdiction under CPLR § 302(a) cannot be made until after service of a complaint setting forth the basis for personal jurisdiction [ citing, inter alia, Fraley v. Desilu Productions, Inc. 23 AD2d 79 (1st Dep't 1965)].
In Fraley, the Appellate Division, First Department reversed the lower court's dismissal of the action for lack of personal jurisdiction because the matter was "not procedurally ripe for determination" prior to service of a complaint stating the cause or causes of action relied upon by the plaintiff. Id., 23 AD2d at 81. There, as here, the summons was served without a complaint and the defendant made the motion to dismiss prior to demanding or receiving a complaint.
The Wife's motion to dismiss is denied as premature. Her time to serve a demand for a complaint is extended to 10 days after receipt of this order with notice. Denial of the motion to dismiss is made without prejudice and the Wife may, after service of the complaint, raise the jurisdictional objection in a responsive pleading to be followed by a motion for summary judgment, if appropriate.
While the court is constrained by the authority of Fraley to defer the jurisdictional decision until after service of a complaint setting forth the nature of the action and the basis for jurisdiction, it is noted that the execution of a marital agreement in New York constitutes the "transaction of business" within the state conferring personal jurisdiction over a non-domiciliary defendant. See, Deutsch v. Deutsch, 166 AD2d 345, 346 (1st Dep't 1990).
Cross-motion for Injunctive Relief
The Husband's cross-motion seeks a preliminary injunction prohibiting the Wife from seeking maintenance, either temporary or permanent; from accepting payment of maintenance from the Husband; and from seeking to enforce any award of either temporary or permanent maintenance.
The Wife argues that principles of comity require denial of the cross-motion on the theory that issuance of a preliminary injunction will impinge on the authority and dignity of the Singapore court.
The Husband asserts that the principle of comity is not a rule of law and is not binding on this court. The Husband also argues that New York has a strong public policy favoring marital agreements giving rise to a presumption of legality and favoring the enforcement of such agreements. He claims that, in contrast, under Singapore law the Antenuptial Agreement will not enjoy the benefit of that presumption. He contends that New York public policy overrides the non-binding deference based on comity.
In support of his position, the Husband presents an opinion affirmation from foreign counsel asserting that Singapore courts will not necessarily accord comity to a New York pre-nuptial agreement, that a Singapore court will not necessarily apply New York law in considering the Antenuptial Agreement and that Singapore law supports awards of maintenance which is contrary to the terms of the Antenuptial Agreement. The Husband's expert opines that the Singapore Court is not bound to enforce the Antenuptial Agreement maintenance provision and that such provisions are subject to "overall scrutiny." Moreover, Singapore courts have accorded great deference to the spousal maintenance provisions of the Singapore Women's Charter (the "SWC"). The SWC provides that "the court may order a man to pay maintenance to his wife." (§ 113). SWC § 114 sets forth the factors a court shall consider in deciding whether to award maintenance.
"(in) determining the amount of any maintenance to be paid by a man to his wife or former wife, the court shall have regard to all the circumstances of the case including the following matters: (a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future; (b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future; (c) that standard of living enjoyed by the family before the breakdown of the marriage; (d) the age of each party to the marriage and the duration of the marriage; (e) any physical or mental disability of either party to the marriage; (f) the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family; and (g) in the case of proceedings for divorce . . ., the value to either of the parties to the marriage of any benefit . . . which, by reason of the dissolution of the marriage that party will lose the chance of acquiring." [§ 114 (1)] "(In) exercising its powers under this section, the court shall endeavor so to place the parties, so far as it is practicable and, having regard to their conduct, just to do so, in the financial position in which they eould have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other." [114 (2)]
It is well settled that:
The use of the injunctive power to prohibit a person from resorting to a foreign court is a power rarely and sparingly employed, for its exercise represents a challenge, albeit an indirect one, to the dignity and authority of that tribunal. Accordingly, an injunction will be granted only if there is danger of fraud or gross wrong being perpetrated on the foreign court. Furthermore, where a foreign divorce is sought, our courts will intrude, even if a serious impropriety would be involved in its procurement, only when the ensuing decree would be entitled to full faith and credit in this State. (See Rosenbaum v. Rosenbaum, 309 NY 371; Garvin v. Garvin, 302 NY 96; see, also, Goldstein v. Goldstein, 283 NY 146). Arpels v. Arpels, 8 NY2d 339, 341-342 (1960).
There is no evidence that a fraud is being committed on the Singapore court. The divorce action lies in Singapore, not in New York. Neither party meets the New York residency requirement. DRL § 230. Moreover, Singapore has been made aware of the Antenuptial Agreement and is in a position to rule on the validity of that agreement. Thus, the court finds no bad faith in the Wife having filed a divorce action in Singapore.
The question remains whether the Wife sought to evade New York law by seeking maintenance in the Singapore divorce action. In the absence of evidence that a foreign action was brought in bad faith, for the purpose of evading New York law, or motivated by fraud or an intent to harass, injunctive relief limiting the authority of the foreign court is not warranted. See, Sebastian Holdings, Inc. v. Deutsche Bank AG , 78 AD3d 446 (1st Dep't 2010).While the Wife's request for an award of maintenance appears to be in contravention of the waiver of maintenance provision in the Antenuptial Agreement, the Singapore court has not yet ruled that this provision is invalid or will not be enforced.
There is no indication that the Husband is procedurally barred from seeking or has sought a ruling from the Singapore Court to enforce the terms of the Antenuptial Agreement before that courts makes any further findings. Having failed to seek a ruling on that issue in Singapore, the Husband's application here for injunctive relief is premature.
Moreover, the provisions of the SWC do not necessarily mean that a Singapore Court will not enforce the Antenuptial Agreement in this case or will not apply New York law as the parties contracted to do in the Antenuptial Agreement. Indeed, a decision of the Singapore Court of Appeals relied upon by the Husband's Singapore counsel, TQ v. TR, [2009] SGCA 6, indicates that the Singapore court can find that the Antenuptial Agreement is valid and the maintenance waiver enforceable (Exh. C to Aff. Of Chia Chwee Imm Helen). In TQ v. TR, in a divorce action, the highest court in Singapore, the Court of Appeal, upheld the validity of a prenuptial agreement entered into in the Netherlands. The court found it appropriate to apply Dutch law in accordance with the terms of the agreement in awarding the distribution of the marital estate. Although the agreement in that case did not contain a maintenance provision, the court went on to note, in dicta, that because the SWC is silent concerning maintenance provisions in prenuptial agreements, Singapore courts should apply common law, consistent with the legislative policy, in determining the validity and enforcement of such provisions ( id. at ¶¶ 62-63). The decision in TQ v. TR further noted that under the common law "there is nothing preventing the court concerned from endorsing the substance of the terms of a prenuptial agreement with regard to maintenance if it appears to the court that those terms embody what would be a just and fair result insofar as the claim for maintenance is concerned . . ." ( id. at ¶ 67).
The common law of England, so far as it was part of the law of Singapore immediately before November 12, 1993, continues to be part of the law of Singapore (Exh. C to Aff. of Chia Chwee Imm Helen at ¶ 51).
The court rejects the Husband's argument that he satisfies the showing required by CPLR § 6301 to warrant a preliminary injunction. The Husband cannot demonstrate a likelihood of success on the merits where he has yet to file a complaint stating the basis for the ultimate relief requested in this proceeding. Moreover, even if a complaint had been filed seeking damages for the Wife's breach of the waiver of maintenance in the Antenuptial Agreement, until the Singapore court has ruled that it will not uphold the Antenuptial Agreement, the breach of contract issue is not ripe for adjudication in this court.
The court notes that the final page of the Antenuptial Agreement is an acknowledgment by each of the parties that their respective attorneys made no representation "as to the legal effect or enforceability of the Antenuptial Agreement . . . outside the State of New York." This provision explicitly gave the parties notice that the legal effect and enforcement of the Antenuptial Agreement was not guaranteed in a foreign jurisdiction. The Husband cannot claim he was not advised of the potential risks inherent in signing an Antenuptial Agreement in New York, but proceeding with a divorce action elsewhere.
Moreover, the Husband has not shown that he will suffer irreparable harm in the absence of the requested preliminary injunction restraining the Wife from seeking an award of temporary or permanent maintenance. The Singapore court ultimately denied an award of temporary maintenance to the Wife, finding that the Wife had sufficient resources to support herself. Although the decision was premised on Singapore law, the court considered the intent of the Antenuptial Agreement (Letter of Husband's Counsel dated August 16, 2010). In relying on Singapore law, the court considered the provisions of SWC § 114 which are similar to DRL § 236 (B) (6), requiring a court to bear in mind the wife's ability to be self-supporting and the assets available to her. The court's decision to deny temporary maintenance belies the argument that Singapore courts invariably award maintenance to wives.
It should be noted that under New York law, notwithstanding the terms of the Antenuptial Agreement pertaining to maintenance, the Wife would not be prehibited from seeking an award of temporary maintenance. Solomon v. Solomon, 224 AD2d 331 (1st Dept. 1996); Tregellas v. Tregellas, 169 AD2d 553 (1st Dept. 1991).
The Husband's Singapore counsel contends that "all prenuptial agreements relating to the maintenance of the wife and/or the children will be subject to the overall scrutiny of the courts" [citing an opinion of the Singapore Court of Appeal, the court of final appeal]. See, Aff. Of Chia Chwee Imm Helen at p. 7, ¶ 11. The Singapore lawyer does not point to any statute or other legal authority that automatically invalidates the maintenance waiver provisions of the New York Antenuptial Agreement at issue in this action. At most, the authority cited by Husband's counsel indicates that the maintenance provision will be subject to scrutiny by the Singapore court. There is no indication that the "overall scrutiny" given to prenuptial agreements by the Singapore courts is significantly different from the scrutiny given to such agreements under New York law. DRL § 236B(3) states that the terms of an agreement providing for maintenance is valid and enforceable "provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment." The court rejects the Husband's assertion that Singapore law is antithetical to antenuptial agreements and that the Singapore court "almost certainly will not enforce the Agreement according to its terms." Accordingly, it is hereby:
ORDERED, that the Defendant's motion to dismiss is denied. The Defendant's time to serve a demand for a complaint is extended to 10 days after the date of this order with notice. Denial of the motion to dismiss is made without prejudice and the Defendant may, after service of the complaint, raise the jurisdictional objection in a responsive pleading to be followed by a motion for summary judgment; and it is further
ORDERED, that the Plaintiff's request for injunctive relief is denied; and it is further
ORDERED, that counsel for the parties are directed to appear for a status conference on May 2, 2011 at 9:30 a.m. in Room 311 at 71 Thomas St., New York, NY.
This opinion is the decision and order of the court.