Opinion
F-1270/12/14B F-1270-12/14C
05-11-2015
In the Matter of S.K. v. H.K.
Richard B. Alderman, Esq. and Anastasia M. Semel, Esq., of the Alderman and Alderman Law Firm for the petitioner S.K.; Tina C. Bennet, Esq. and Beth A. Lockhart, Esq. of the Bennet and Lockhart Law Firm for the respondent H.K.; William J. Barrett, Esq., Attorney for the Children
Richard B. Alderman, Esq. and Anastasia M. Semel, Esq., of the Alderman and Alderman Law Firm for the petitioner S.K.; Tina C. Bennet, Esq. and Beth A. Lockhart, Esq. of the Bennet and Lockhart Law Firm for the respondent H.K.; William J. Barrett, Esq., Attorney for the Children
The petitioner-mother / cross-respondent (hereinafter referred to as "mother"), who resides in Florida, filed a verified petition on June 5, 2014 and subsequently filed an amended petition on June 30, 2014 seeking a finding that the respondent willfully violated the "Disposition Order of Support Upon Consent" filed and entered on March 19, 2014. The respondent-father / cross-petitioner (hereinafter referred to as "father"), who resides in Onondaga County, filed a verified petition on October 22, 2014, seeking vacature of his child support obligation based upon constructive emancipation or frustration of parenting time by the mother. In the alternative the father seeks a downward modification based upon his inability to obtain employment. The father asserts that the Queens County Support Collection Unit's failure to vacate a 2010 judgment has prevented him from obtaining a professional license and thus impaired his ability to obtain employment.
The parties appeared before a Support Magistrate in Onondaga County on November 13, 2014 and the proceeding was referred and accepted by this Court for a determination as to the affirmative defenses raised by the father as well as the petition filed by the mother alleging a violation of this Court's prior sentence of a Conditional Discharge.
On March 4, 2015 the attorney for the mother filed a motion seeking to dismiss the father's child support modification petition. An attorney affirmation and memorandum of law were also filed in support of the motion which alleges the doctrine of forum non conveniens as one of the bases for dismissal.
The Attorney for the Children filed a memorandum of law and at oral argument joined in the mother's motion to dismiss due to the possible travel that may be required of his clients if a hearing were to be held in Onondaga County.
The father's attorney on March 13, 2015 filed an attorney affirmation opposing the mother's dismissal motion and seeking dismissal of her petition. The Court held oral argument with all counsel present on March 17, 2015 and the Court reserved decision.
BACKGROUND
The parties were married to each other on January 6, 1996 in Fort Lauderdale, Florida. There are two children born of the marriage B. K. and M.K. The parties were divorced in 2005 in Westchester County, New York pursuant to a judgment of divorce. The terms and conditions of the divorce were based upon a written stipulation which was referred to as a "Final Agreement" and included provisions relative to custody and child support. The agreement of the parties was incorporated by reference but did not merge into the judgment of divorce. Per the agreement the mother is the sole custodian of the children and the father has a set parenting time schedule. Child support was agreed to at an amount equal to $2,669.66 per month, plus additional expenses.
At the time of the agreement the mother had already moved to the State of Florida with the children and purchased a residence there. The final agreement of the parties specifically recited the interim agreement provisions signed on May 4, 2005 stating that the father would possibly move to Florida although no date was specified. Relevant portions of the parties' interim agreement contained in the final agreement regarding relocation are as follows:
RELOCATION:4.Pursuant to the Interim Agreement, the Husband acknowledged that the Wife told him that she was, at the time of the execution of the Interim Agreement, looking for a primary residence for her and the Children in the Boca Raton area of Florida.
5.Pursuant to the Interim Agreement, the Husband consented to relocation by the Wife and the Children to the Boca Raton area of Florida as soon as practicable. He further acknowledged that such relocation was in the best interest of the Children, and he shall raise no objection thereto.
6.Since the execution of the Interim Agreement, the Wife has purchased a residence in Boca Raton, Florida and relocated with the Children.
7.The parties acknowledge that the Husband also intends to relocate to the Boca Raton area of Florida.
On November 19, 2009 the mother filed a support enforcement petition against the father in the Westchester County Family Court. The matter was heard before the Support Magistrate on January 26, 2010 at which time the court transferred the proceeding to Queens County Family Court. On May 20, 2010 the proceeding was heard by a Support Magistrate who found that the father was in willful violation of his support obligation and granted a judgment to the mother in the amount of $74,460.00.
A subsequent violation petition was filed by the mother in Onondaga County and heard by a Support Magistrate on May 9, 2012 and a finding of a willful violation was entered. On June 6, 2012 the Support Magistrate's finding of a willful violation was confirmed and a warrant was issued due to the father's failure to appear. The father subsequently appeared on March 4, 2013 and the warrant was vacated.
The father was sentenced to a one year Conditional Discharge on November 26, 2013 for his willful violation of the support order. A modified order of support agreed to by the parties directed the father to pay child support in the amount of $400.00 per week for basic child support retroactive to October 18, 2013. The conditional discharge included a provision that the mother would be permitted to petition the Court and restore the matter to the Court calendar in the event that the father failed to abide by the terms and conditions of said order.
The father filed an enforcement petition regarding parenting time on March 4, 2014 pursuant to Article 6 of the Family Court Act. The parties appeared and the matter was heard by a Court Attorney Referee in Onondaga County Family Court. The mother filed a motion to dismiss the petition alleging that under the Uniform Child Custody Jurisdiction Enforcement Act (hereinafter UCCJEA) the Court lacked jurisdiction to enforce the existing Judgment of Divorce. The Referee granted the motion and dismissed the father's enforcement petition as to parenting time, noting that the "children had continuously resided outside the State of New York since on or before July of 2005" pursuant to a written "Final Agreement" which was signed on or about November 8, 2005 and later incorporated into the Westchester County Judgment of Divorce. The Referee also held that the Court lacked jurisdiction as to any matters relating to custody.
STANDARD OF LAW FOR AFFIRMATIVE DEFENSES
The father's petition seeks to vacate his child support obligation based upon two separate affirmative defenses: (1) frustration of parenting time by the mother (2) constructive emancipation. The father asserts in his petition that since March of 2014 he has been attempting to exercise parenting time per the Judgment of Divorce and the mother has engaged in conduct to frustrate such visitation. In the alternative, the father requests a finding that the children have "voluntarily emancipated themselves for not wanting a relationship with their father". Although similar in nature both of these defenses are separate and distinct:
Frustration of Parenting Time:
It is a matter of fundamental policy that the parents of an unemancipated child are responsible for the support of that child until the child turns 21 years of age ( Fam. Ct. Act § 413 (1)(a).) However, where it can be established by the non-custodial parent that the custodial parent has unjustifiably frustrated the non-custodial parent's right of reasonable access and that the child is not in danger of becoming a public charge, child support payments may be suspended or vacated. (Usack v. Usack 17 AD3d 736; Kershaw v. Kershaw, 268 AD2d 829; Hiross v. Hiross, 224 AD2d 662; Hecht v. Hecht, 222 AD2d 589.) The moving party must establish that the custodial parent's
actions have risen to the level of deliberate frustration or active interference in order to reduce or nullify the parent's support obligation. (Weinreich vs. Weinreich 184 AD2d 505.)
Constructive Emancipation:
A child who is otherwise not emancipated may constructively emancipate themself if they withdraw from parental control and supervision without cause. In such cases, courts have held that the obligation of the parent to support the child may be suspended by the court. (Matter of Roe v. Doe, 29 NY2d 188; Christopher L. v. Gail K., 269 AD2d 847.) Courts have expanded the doctrine of constructive emancipation to include a child of employable age who actively abandons the non-custodial parent by refusing all contact without cause, unless the child is in danger of becoming a public charge. (Chamberlain v. Chamberlain, 240 AD2d 908; Family Court Act § 415; S ocial Services Law § 101 .) When a non-custodial parent has caused the alienation between themselves and the child they are not relieved from their support obligation (Radin v. Radin 209 AD2d at 396).
STANDARD OF LAW - JURISDICTION
The mother argues that based upon the father's affirmative defense that such issues should be determined by a Court in Florida on the basis of (1) forum non conveniens and (2) the relevant sections of the UCCJEA. The mother asserts that forum non conveniens should apply due to the fact that she and the children have not resided in New York since 2005 and thus it would be inconvenient and disruptive to have the children travel to Onondaga County for any proceedings. The mother also asserts that as the Referee in Onondaga County declined jurisdiction in the Article 6 enforcement proceeding brought by the father in 2014 the UCCJEA is applicable in this instance as the father's affirmative defenses are intertwined with custodial and parenting time issues.
Forum Non Conveniens:
The doctrine of forum non conveniens is codified in CPLR 327(a) which states that a New York Court may decline jurisdiction and dismiss an action where the proceeding would be better adjudicated and heard in another forum. When applying this doctrine the Court must consider and balance relevant factors as it has been held there is not one controlling factor. (Harp v. Malyn, 166 AD2d 848.) The analysis is to be done on a case by case basis as it has been held "The Court must consider various factors in determining, in the exercise of its sound discretion, whether to retain jurisdiction over the action." (Carvel Corporation v. Ross Distribution, Inc., 137 AD2d 578.) Factors which have been considered are "burden on the New York courts, the potential hardship to the defendant, and the unavailability of an alternative forum in which plaintiff may bring suit." (Islamic Republic of Iran v. Pahlavi, 94 AD2d 374.)
The doctrine is very flexible and should be based upon the circumstances of each case in order to achieve "justice, fairness and convenience". (Martin v. Mieth, 35 NY2d 414.) Specifically CPLR §327 states "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. The domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action"
The provisions of CPLR §327 apply to Family Court proceedings as incorporated by reference pursuant to Family Court Act §165. Family Courts in New York have utilized forum non conveniens as a means to dismiss support cases where other jurisdictions would be more appropriate. (Cooke v. Cooke, 201 AD2d 400; Harp v. Malyn, 166 AD2d 848.) It has also been found that if custody is to be determined by a particular court than it would only be appropriate for the support matter to be heard in that same jurisdiction. (Ahmad v. Khalil, 40 Misc 3d 1206.) The Court in Ahman held "Jordan is the proper forum to decide custody issues, it is also the proper forum for plaintiff to seek child support. The Jordanian courts have both the jurisdiction to do so and the means to assess the needs of the children, their lifestyle, and costs associated with supporting them."
The doctrine of forum non conveniens has also been applied to Family Court Article 6 proceedings wherein the Court has declined to exercise jurisdiction. (Matter of Swain v. Vogt, 206 A.D.2nd 70, Randall v. Randall, 305 AD2d 512.) When applying forum non conveniens to custodial matters the courts have applied various factors such as, how long the child has resided or no longer resided in New York, whether or not another state has a closer connection with the child and where the substantial amount of evidence concerning the child's current and future care is located. (Singer v. Singer 79 A.D. 680; In the Matter of Wise v. Aldrich 106 Misc 2d 336.)
FINDINGS BY THE COURT
The father's claims of custodial interference and constructive emancipation are akin to and similar in nature to a custody proceeding.
Neither party contests the residence of the children for the past ten years and the Court notes that the children moved to the State of Florida with the written consent of the father. The agreement reached by the parties in 2005 goes so far as to state that the father believed relocation would be in the children's best interest. At oral argument it was established that neither of the children has ever resided in Onondaga County and they also have not had contact with the father for a number of years.
To determine the father's affirmative defenses the Court would need to examine the relationship between the father and the children. This would most likely require testimony from the children and from other individuals that may have interacted with the children over the course of the past decade such as relatives, friends and counselors. Testimony from the mother would also be critical given the father's allegations that her conduct and influence over the children has negatively impacted the children's relationship with the father. The Court further notes that neither child is of employable age. The Court does not make any finding as to the credibility or viability of the father's affirmative defenses which certainly raise troubling allegations.
However, based upon the factors previously noted and balancing the provisions of CPLR §327(a) and the doctrine of forum non conveniens, the Court finds that justice, fairness and convenience for both parties would be achieved by granting the mother's motion to dismiss.
Based upon the findings set forth the Court finds that the State of Florida would be the appropriate forum and best serve the parties, and most importantly the children, in determining the father's claim of construction emancipation and or custodial interference by the mother.
The remaining portion of the father's petition seeks a downward modification based upon his inability to obtain a license to sell life insurance which he once held. The father claims that the failure of the Queens County Support Collection Unit to vacate a 2010 judgment has precluded him from obtaining the license. The Court finds that there is no jurisdictional basis, nor has any been asserted, to have this allegation heard in Onondaga County Family Court and the Court further finds that his claim is not one upon which relief can be granted.
The Court further finds the remaining allegations contained in the father's petition lack any factual or legal basis for consideration by this Court in view of the previous findings by the Court and thus are dismissed.
The Court also denies as lacking in any legal or factual basis, the father's request to have all matters involving these parties that are pending before the Court dismissed if his petition is dismissed.
NOW, after hearing oral argument from counsel and review of the papers and pleadings before the Court, it is
ADJUDGED, that the petitioner-mother's motion to dismiss the respondent-father's petition is hereby granted; and it is
ORDERED, that the respondent-father's petition dated October 22, 2014, F-1270—12/14C is hereby dismissed; and it is further
ORDERED, that the currently scheduled trial date of May 14, 2015 is hereby vacated; and it is further
ORDERED, the Court will place this matter on the calendar for a hearing on the petitioner-mother's petition alleging a violation of the Conditional Discharge, F-01270-12/14B, on June 9,
2015 at 10:30 A.M. in Part 1 of Onondaga County Family Court; and it is further
ORDERED, the attorney for the petitioner-mother is directed to submit an order incorporating the terms and conditions of this decision; and it is further
ORDERED, that mail or e-mail service of this Order upon the attorneys for the parties and the Attorney for the Child is deemed sufficient.