Opinion
V-xxxx-13/18B
10-24-2019
P.M., Petitioner, v. M.G., Respondent.
Regina L. Darby, Esq., for the father PM Verris B. Shako, Esq., for the mother MG Eve Bunting-Smith, Esq., for the child Arlene E. Katz, J.
In accordance with CPLR 2219 (a), the following papers were read and considered, in addition to a review of the contents of the file in this matter: Paper Numbered Father's Order to Show Cause filed November 23, 2018 / 1-27 Memorandum of Law in Support / Attorney Affirmation in Support / Affidavit in Support / Attachments (unnumbered) Mother's Order to Show Cause dated June 5, 2019 /Affidavit in 28-75 Support / Attorney Affirmation in Support and Memorandum of Law / Attachments (unnumbered) Mother's Order to Show Cause dated July 14, 2019 / Affidavit in 76-97 Support / Attorney Affirmation in Support and Memorandum of Law Attorney for the Child's Notice of Motion (No.1) dated August 28, 2019 / 98-104 Attorney Affirmation in Support Attorney (for the Father) Affirmation in Opposition to Mother's Order 105-133 to Show Cause / Affidavit in Opposition / Memorandum of Law / Exhibits A-C Revised Final Order of Custody and Visitation dated February 4, 2014 134-138
RELEVANT PROCEDURAL AND FACTUAL BACKGROUND
The above parties are the parents of B.G.M., born March 29, 2009. On December 13, 2013, the parties appeared before a judge of this Court and agreed to modify the terms of their existing order of custody. On February 4, 2014, a Revised Final Order of Custody and Visitation was entered on consent [in Westchester County Family Court]. By this order, as is relevant herein, the parties agreed that the mother would retain physical and legal custody, with the father to have a set visitation schedule. The parties further agreed that the mother could relocate with the child to Charlotte, North Carolina. In addition, the parties agreed that the terms "mother" and "father" and any equivalents thereof shall only be used to refer to the parties and no one else. Finally, the parties agreed that New York retains sole and exclusive jurisdiction regarding any violation, enforcement or modification of the order, and that the mother shall not seek to vacate, amend, alter or change the order in any court outside of New York.
On November 23, 2018, nearly five years after the date on which the parties agreed to the terms of the existing order, the father, by his attorney, filed an order to show cause seeking to modify that order and alleging that the mother violated the order. This application, docketed as V-xxxx-13/18B, seeks an order granting the following relief: (1) modifying his visitation schedule to coordinate with the child's school schedule and to provide specific visitation dates in August of each year; (2) holding the mother in contempt for willfully violating the terms of the existing order; (3) placing a portion of the father's child support payments in escrow for the mother's willful interference with his visitation; and (4) awarding the father counsel fees and travel expenses incurred in connection with the mother's violation of the order.
On June 5, 2019, the mother, by her attorney, filed an order to show cause under docket V-xxxx-13/19C to deny the father's order to show cause, which is essentially an answer to the father's allegations.
The matters came on to be heard before this Court on July 11, 2019. At this appearance, the mother brought to this court's attention that the child had been living in North Carolina for five years. An extensive attorneys' conference was held in which the issue of jurisdiction was discussed. On consent, all counsel agreed to move on paper with regard to this issue. Pursuant to a scheduling order entered that same day, counsel were ordered to address each and every factor set forth in Domestic Relations Law § 76-f (2) in any moving and responsive papers pertaining to the issue of inconvenient forum.
On July 14, 2019, the mother, by her attorney, filed a second order to show cause under docket V-xxxx-13/19D to dismiss the father's order to show cause pursuant to Domestic Relations Law § 76-f on the basis that New York is an inconvenient forum and that North Carolina is a more appropriate forum. In her papers, the mother addressed the relevant factors in accordance with the statute and the scheduling order.
On August 28, 2019, the attorney for the child filed a motion pursuant to CPLR 327 seeking dismissal of the father's order to show cause on the basis of forum non conveniens.
On September 4, 2019, the father, by his attorney, filed an opposition to the mother's order to show cause to dismiss. The father's papers focused primarily on the jurisdictional issues of significant connection and substantial evidence in accordance with Domestic Relations Law § 76-a (1) (a). However, he failed to address many of the factors related to inconvenient forum set forth in Domestic Relations Law § 76-f (2) as specifically required by the scheduling order. As this court is required to consider each of the enumerated factors in that section, it has made the instant determination based upon the contents of the papers submitted in these pending matters and the contents of the file.
The above-referenced papers, maintained by the clerk of this court, fully set forth the parties' and the attorney for the child's respective positions and arguments. This Court has read and considered these papers, which speak for themselves and will not be summarized herein.
JURISDICTION
New York Domestic Relations Law § 76-a (1) provides that
"a court of this state which has made a child custody determination has exclusive, continuing jurisdiction over the determination until: (a) a court of this state determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training and personal relationships" (emphasis added).
A determination that a court of this state no longer has exclusive, continuing jurisdiction requires a finding both that there is no significant connection and that substantial evidence is no longer available. It is undisputed that, since in or around the time of the entry of the 2014 order, the child and the mother have been living exclusively in North Carolina. It is further undisputed that this move was contemplated by both of the parties, as it was referenced within the 2014 order. However, the father has enjoyed regular visitation with the subject child approximately once per month and on certain holidays as set forth in the order. This regular visitation establishes a significant connection with this state (see generally Seminara v Seminara, 111 AD3d 949 [2d Dept 2013]; EB v EFB, 7 Misc 3d 423 [Supreme Ct, Kings County 2005], affd 20 AD3d 497 [2d Dept 2005]; Belcher v Lawrence, 98 AD3d 197 ; Mercado v Frye, 104 AD3d 1340 ; lv denied 21 NY3d 859 [2013]). As the first prong of the test cannot be satisfied, it is not necessary to examine the second.
As fully discussed below in relation to DRL §§ 76-f (2) (f) and (g), the same issues addressed therein would be considered in a discussion of substantial evidence.
INCONVENIENT FORUM
A determination that this court has continuing jurisdiction does not end the inquiry. Even if this court has exclusive, continuing jurisdiction, it may, nevertheless, decline to exercise such jurisdiction if it determines that it is an inconvenient forum. "[T]he 'significant connection' and 'substantial evidence' language is to be contrasted with that of the act's forum non conveniens provision which authorizes a court having jurisdiction to decline to exercise it based on various factors, including whether another State has a 'closer connection' with the child and the contestants, and whether substantial evidence is 'more readily available' concerning the child's present or future care" (William L. v Michele P., 99 Misc 2d 346, 350 [Family Ct, Schenectady County 1979]).
New York Domestic Relations Law § 76-f provides that:
"(1) [a] court of this state which has jurisdiction to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum (2) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and
shall consider all relevant factors, including: (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; (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.
The court is required to consider each of the eight factors listed above (Domestic Relations Law § 76-f [2]; see Mojica v Denson, 120 AD3d 691 [2d Dept 2014]), and failing to do so is reversible error (see Rey v Spinetta, 8 AD3d 393 [2d Dept 2004]; Dawber v Kelly, 287 AD2d 625 [2d Dept 2001]; Graves v Huff, 169 AD3d 1476 ). Nothing in the wording of the statute indicates that any one factor is more determinative than another. However, courts have repeatedly held that "[p]articularly relevant to the jurisdictional determination is whether the forum in which the litigation is to proceed has optimum access to relevant evidence" (Paderno v Shvetsova, 96 AD3d 762, 763 [2d Dept 2012] [internal quotations and citations omitted]; Veen v Golovandoff, 169 AD3d 804 [2d Dept 2019]). "Maximum rather than minimum contacts with the State are required" (Paderno at 763).
While "best interests" is not a factor explicitly set forth in Domestic Relations Law § 76-f, it is an overarching and paramount concern that guides and informs this court in each and every custody matter (see William L. v Michele P., 99 Misc 2d 346 [Family Ct, Schenectady County 1979]; Marlow v Marlow, 122 Misc 2d 221 [Supreme Ct, Nassau County 1983]). The first factor pertains to "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" (Domestic Relations Law § 76-f [2] [a]). Neither party has alleged any such domestic violence or mistreatment or abuse. As such, this factor has been considered and has been determined to be not relevant.
The court must next consider "the length of time the child has resided outside this state" (Domestic Relations Law § 76-f [2] [b]). Neither party disputes that the child's primary residence has been with the mother in North Carolina since in or around 2013 or 2014. The child may have spent the first four years of her life in New York, but she is now ten years old, and she has lived for more than half her life in North Carolina.
Next, the court must consider "the distance between the court in this state and the court in the state that would assume jurisdiction" (Domestic Relations Law § 76-f [2] [c]). The father alleges that the travel time from "gate to gate" from New York to North Carolina is one hour and forty-five minutes. The mother alleges that the flight is approximately two hours, and that driving would take approximately ten hours. In addition to the actual flight or driving time, this court cannot overlook the time spent with security lines, flight or traffic delays, the time and expense of traveling to and from the airport, including a car service or parking costs on both ends of the trip, meals, lodging, and missed time from work or school.
This leads to consideration of the next factor, which is "the relative financial circumstances of the parties" (Domestic Relations Law § 76-f [2] [d]). On December 12, 2012, an Order of Support with Findings of Fact was entered [by a support magistrate of this court]. By that order, the support magistrate determined the father's adjusted gross income for child support purposes to be $326,395.39, and the mother's to be $57,412.92. The father's and mother's pro rata share of the combined parental income was 85% and 15%, respectively. In the instant proceeding, the father did not provide any updated financial information. The mother alleged that her income is currently approximately $80,000, which she earns as a human resources specialist at [a bank]. She indicated her belief that the father, who serves as counsel to the investment funds group of a large law firm in New York City, currently earns approximately $300,000. If these figures are correct, the parties' income disparity has slightly diminished, but the father still earns nearly four times what the mother does. In addition to the travel involved in participating in these proceedings taking a greater financial toll on the mother, the comparative cost is even greater when factoring in the additional costs for travel or child care for the parties' daughter.
Next, the court must consider "any agreement of the parties as to which state should assume jurisdiction" (Domestic Relations Law § 76-f [2] [e]). The parties' 2014 order provides that New York retains sole and exclusive jurisdiction regarding any violation, enforcement or modification of the order, and that the mother shall not seek to vacate, amend, alter or change the order in any court outside of New York. The father, both in court and in his papers, focuses heavily on the existence of these provisions in the parties' order as determinative on the issue of jurisdiction. However, an agreement of the parties is just one of the many factors this court must consider. "[T]he parties cannot, by agreement, confer jurisdiction on either state [and such a] provision is not controlling" (DeJac v DeJac, 17 AD3d 1066, 1068 , lv denied 20 AD3d 946 [2005]). "[A] promise affecting the right of custody of a minor child is unenforceable on grounds of public policy unless the disposition as to custody is consistent with the best interest of the child" (Eldad LL. v Dannai MM., 155 AD3d 1336, 1339 , citing Restatement 2d of Contracts § 191). In Eldad, the parties' "forum selection clause was unenforceable on public policy grounds" as it was not in the child's best interests (id. at 1338). While the father cites a number of cases which, he asserts, support this court retaining jurisdiction based upon the parties' agreement, these cases are each distinguishable from the instant matter in fundamental ways. One of the most pronounced differences in many of the cited cases is the length of time between the initial agreement on jurisdiction and the subsequent application to enforce or modify (for example, the father's reliance upon Vernon v Vernon [210 AD2d 170 (1 Dept 1994)] is misplaced, as in that matter, an out-of-state action was commenced just four months after the parties' settlement agreement containing a jurisdiction clause). In the instant matter, the child was approximately four years old when she moved to North Carolina. She is now ten years old, and she had lived in North Carolina for more than half her life at the time this matter was commenced. This court will give the jurisdictional provisions of the parties' 2014 order the appropriate weight in consideration of the other seven factors, but it is but one of eight factors to be weighed in determining convenient forum.
The statute next requires the court to consider "the nature and location of the evidence required to resolve the pending litigation" (Domestic Relations Law § 76-f [2] [f]). As in Paderno and Veen, supra at 5, both Second Department cases, this court has given this factor considerable weight in the instant determination. By his 2018 order to show cause, the father seeks relief of four distinct types. First, he seeks to modify his visitation schedule to coordinate with the child's school schedule and to provide specific visitation dates in August of each year. Second, he seeks to hold the mother in contempt for willfully violating the terms of the existing order. Third, he seeks to place a portion of his child support payments in escrow for the mother's alleged willful interference with his visitation. Fourth, he seeks an award of counsel fees and travel expenses incurred in connection with the mother's alleged violation of the order.
In his memorandum of law in opposition to the mother's order to show cause to dismiss for forum non conveniens, the father states that "[t]he sole issue in this proceeding is whether the mother violated the court ordered visitation" (father's mem at 11). However, the remainder of his opposition, as well as the position he has taken consistently throughout the pendency of these proceedings, is that he remains committed to pursuing his other requested relief, specifically modification of his visitation schedule, deposit of child support payments into escrow, and an award of counsel fees and travel expenses in connection with this litigation.
While the father has asserted that he can prove his case by his own testimony, this court would need to hear from a number of other witnesses to make an informed determination on the relief he seeks. The mother has asserted that one of the alleged violations of the visitation schedule was due to her being late into her third trimester of a high-risk pregnancy and the parties' child being too young to fly unaccompanied. The mother indicated that she would need to proffer testimony from her treating obstetrician on this issue. With regard to the father's application to change the visitation schedule, this court would not be able to make a determination in a vacuum, and may need to hear testimony from the child's teachers or other educational professionals, medical providers, or coaches. In addition, proving that the father's child support payments should be placed in escrow due to the mother's alleged alienation would likely require numerous witnesses where the child resides and spends the bulk of her time. Moreover, any award of counsel fees or travel expenses would need to be based in part on consideration of the foregoing.
Accordingly, the vast majority of the testimony and evidence needed to prove and defend against the father's allegations exists almost exclusively in North Carolina, and any subpoenas issued for testimony or production of documents would have no effect outside the State of New York (Coombs v Rowand, 39 AD2d 532 , lv dismissed 31 NY2d 853 [1972]; Ruskin v Brenner, 60 Misc 2d 545 [Supreme Ct, New York County 1969], affd 33 AD2d 659 ; Siemens & Halske, GmbH. v Gres, 37 AD2d 768 ; Judiciary Law § 2-b). Furthermore, even a friendly and willing witness will often require the issuance of a subpoena for testimony or documents for any number of valid reasons. Without the enforcement power of a subpoena, the mother will be significantly hampered in her ability to provide this court with the information needed to make an informed determination based upon all relevant facts. The father would not suffer the same evidentiary challenges if the matter is tried in North Carolina as he has asserted he can prove his case by his testimony alone.
Another significant consideration is that, even if the mother were able to obtain testimony and evidence without subpoenas, the cost and expenses that would be incurred by her witnesses for travel time and testimony would be considerable. Considering the disparity in the parties' income, this disadvantage could have a significant impact on the mother's ability to present a complete and coherent case.
Snow v Elmer (143 AD3d 1217 ), cited by the father is readily distinguishable as, "the sole issue to be decided [was] whether the mother violated the [parties' custody and visitation] order" (id. at 1218).
The next statutory factor considered by the court is "the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence" (Domestic Relations Law § 76-f [2] [g]). For the reasons set forth above, including the location of the child and witnesses with information about her daily life, the courts in North Carolina would have a much greater ability to determine the issues expeditiously. This court is cognizant of the provisions of Domestic Relations Law § 75-j (2), which provides in pertinent part that "[a] court of this state may permit an individual residing in another state to be deposed or to testify by telephone, audiovisual means, or other electronic means before a designated court or at another location in that state." However, in a case such as this, where nearly all of the witnesses and evidence is located in North Carolina, conducting a hearing in this manner would entail logistical difficulties for this court and its sister court in North Carolina, requiring almost double the resources of trying the matter where the majority of the witnesses and evidence are located (cf Helmeyer v Setzer, 173 AD3d 740 [2d Dept 2019]; DeJac v DeJac, 17 AD3d 1066 , lv denied 20 AD3d 946 [2005]; Burdick v Boehm, 148 AD3d 1439 ).
The burden on the child must also be considered. While the father asserts that this court could conduct an in camera interview (see Lincoln v Lincoln, 24 NY2d 270 [1969]) with the child during one of his scheduled visits, doing so would require the child to miss at least one day of school. A court in North Carolina could interview the child at the end of her school day without missing any class time and without having just completed a half day of travel. Further, the child will be better able to establish a relationship and communicate effectively with a local attorney than one in New York with whom she would primarily communicate by telephone and FaceTime, particularly given her relatively young age (Paderno v Shvetsova, 96 AD3d 762 [2d Dept 2012]; Kelly v Krupa, 63 AD3d 1395 ). Given this court's heavy calendar, plus taking into consideration the schedules of the three attorneys involved in this matter, it would be unlikely that each court appearance in this matter could be timed to coincide with the father's monthly visits. Even if such a scheduling feat were possible, this would still require the child to miss at least one day of school for each appearance, as this court is not in session on weekends.
Finally, this court must consider "the familiarity of the court of each state with the facts and issues in the pending litigation" (Domestic Relations Law § 76-f [2] [h]). The parties' underlying order was issued in Westchester County Family Court. However, the undersigned jurist has had no significant history with the matter, having only presided over these proceedings for the handful of appearances since the father filed his order to show cause in November 2018. No testimony has been taken, and no evidence has been presented. In determining the instant application, this Court has become familiar with the jurisdictional issues, but is no more familiar with the facts and circumstances than a court where the child resides the majority of the time.
"Forum non conveniens is an equitable doctrine whereby a court in its discretion may decline to exercise jurisdiction over a transitory cause of action upon considerations of justice, fairness and convenience" (Martin v Mieth, 35 NY2d 414, 417 [1974]). "[T]he court's overall focus must relate to the question of whether New York is an inconvenient forum and whether another is available which will best serve the ends of justice and the convenience of the parties" (Irrigation & Indus. Dev. Corp. v Indag S.A., 37 NY2d 522, 525 [1975]).
Except for the factor pertaining to domestic violence or abuse, which has been deemed inapplicable in the instant matter, all remaining factors combined point overwhelmingly toward this court declining to exercise jurisdiction and determining New York an inconvenient forum and North Carolina a more appropriate forum. The child had resided in North Carolina for at least five years prior to the filing of the father's order to show cause and continues to reside there almost a year later. The two courts are approximately five hundred miles apart, requiring one of the parties to travel halfway up or down the eastern seaboard for court appearances (a burden that should not be borne by the child if avoidable). The father has substantially greater resources to litigate this matter in another jurisdiction. Further, he does not have the same child care concerns as does the mother while traveling. While the parties do have an agreement to litigate in New York, this factor is just one of many and is not weighted more than any other, particularly when adhering to the parties' agreement would be contrary to public policy as not in the child's best interests. The majority of the witnesses and other evidence needed to properly adjudicate this matter is located in North Carolina, particularly as related to the father's claims of alienation, modification, and counsel and travel fees. The courts of North Carolina are much better able to expeditiously decide these issues, particularly as this court has no subpoena power outside the state. Finally, while the Westchester County Family Court has history with this matter, a different judge presided over the matter resulting in the 2014 order, and it was resolved on consent without a hearing. The undersigned jurist has very limited knowledge of this family and the issues raised in the father's order to show cause.
It is notable that the attorney for the child is in favor of the matter being heard in North Carolina. As such, this court is not in any vastly superior position regarding history or familiarity with the issues in litigation. Based upon the factors identified herein, this Court declines to exercise jurisdiction based upon its determination that it is an inconvenient forum, and determines that North Carolina is a more appropriate forum (see Greenfield v Greenfield, 115 AD3d 645 [2d Dept 2014]; Hassan v Silva, 100 AD3d 753 [2d Dept 2012]; DeGrizje v Delviccario, 279 AD2d 574 [2d Dept 2001], lv denied 96 NY2d 716 [2001]).
The attorney for the child filed a motion alleging that New York is an inconvenient forum pursuant to CPLR 327 (a). As the mother's application for a determination that New York is an inconvenient forum has been granted in accordance with the more relevant Domestic Relations Law § 76-f, the attorney for the child's application is deemed denied as moot.
Although the mother seeks to have the father's application dismissed, Domestic Relations Law § 76-f (3) provides that
"[i]f a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon a condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper."
Based upon this mandate, the matter is stayed, and the mother, by her attorney, is directed to provide the father, by his attorney, the attorney for the child, and this Court with name, address and telephone number of the proper court in which the father may seek relief in North Carolina, on or before November 15, 2019. Upon receipt of such information, this Court will provide a certified copy of this Decision and Order on Motion to the appropriate court official in North Carolina forthwith. The father is directed to file a petition or its equivalent in said court on or before December 13, 2019, should he choose to pursue the relief sought in his order to show cause. The instant proceeding is hereby stayed until December 16, 2019, on which date it shall be dismissed for the reasons stated herein.
Accordingly, it is hereby
ORDERED that the mother's order to show cause to dismiss based upon inconvenient forum pursuant to Domestic Relations Law § 76-f is granted to the extent set forth below; and it is further
ORDERED that the mother, by her attorney, shall provide the father, by his attorney, the attorney for the child, and this Court with the name, address and telephone number of the proper court in which the father may seek relief in North Carolina, on or before November 15, 2019; and it is further
ORDERED that the father shall file a petition or its equivalent in the appropriate court in North Carolina on or before December 13, 2019 should he choose to pursue the relief sought in this court; and it is further
ORDERED that the instant proceeding shall be stayed until December 16, 2019; and it is further
ORDERED that on December 16, 2019, the instant proceeding shall be dismissed; and it is further
ORDERED that the attorney for the child's motion to dismiss based upon inconvenient forum pursuant to CPLR 327 is denied as moot; and it is further
ORDERED that to the extent any relief sought by either party in the above-named papers has not been affirmatively granted above, such relief is denied.
This Constitutes the Decision and Order of this Court.