Opinion
287 2010.
Decided July 29, 2010.
Molander Associates, Garth Molander, Esq., Bohemia, NY, Plaintiffs Attorney.
A. Camila Popin, Esq., Forest Hills, New York, Defendants Attorney.
BACKGROUND
The parties were married on July 27, 1996, and separated in October 2009, when Defendant left the marital residence. There are two children of the marriage: P. V. (11 years of age) and M. V. (7 years of age). Both children currently reside with Plaintiff in Rego Park, New York. Previously, M.V. had been living in Bulgaria with his maternal grandmother until January 2010, when Plaintiff brought him to New York. P.V. has always resided in New York. The Defendant lives in Bronx, New York and both parties hold dual-citizenship in the United States and Bulgaria. Plaintiff maintains that since leaving the marital home in October 2009, Defendant has provided only $600 toward the support of the children. Plaintiff is employed as a housekeeper, and earned $30,725 in 2009; Defendant is employed as a security officer, and earned $57,355 in 2009. As reported in her Net Worth Statement, Plaintiff's monthly expenses for her and the two children total $3,495. Plaintiff's sister, M. N., submitted an affidavit stating that she lends Plaintiff between $700 and $800 per month to provide for basic needs. Neither party has significant assets, though Defendant claims that the Plaintiff has $7,000 in a bank account. According to Defendant, over $30,000 in marital debt is owed on various credit cards and loans, toward which only he makes payments.
Plaintiff reports a history of violent behavior on the part of Defendant, and has submitted copies of Orders of Protection from February 2006, April 2006, and July 2006 (Criminal Court: Queens County, Docket No. 2006QN007947). A Temporary Order of Protection was issued in October 2009 by the Family Court: Queens County (Docket No. O-22152-09), but the parties concede that it was withdrawn by Plaintiff and subsequently dismissed. No proof of dismissal was provided.
With respect to the children, Plaintiff alleges that the parties' daughter is fearful of Defendant. Defendant disagrees and claims that Plaintiff is alienating their daughter from him. He further alleges that Plaintiff has a history of psychological problems, self-medicates, and is incapable of caring for the children.
On November 26, 2009, Defendant allegedly filed a divorce proceeding in Bulgaria (Case No. 13802/2009). On January 6, 2010, Plaintiff filed a Summons with Notice bearing the caption "Action for Divorce" in this court (Index No. 287/10). The present motion, filed on February 11, 2010, is a request by Defendant to defer to the divorce proceeding in Bulgaria that was filed, and to dismiss Plaintiff's divorce action. In her cross-motion, Plaintiff claims that she was not served with the Bulgarian divorce action properly, according to Bulgarian law, and as such, the action must fail for lack of jurisdiction. In addition to her request for an order dismissing Defendant's motion, she asks that this court award her temporary custody, child support, unreimbursed medical expenses for the children, and for Defendant to obtain a life insurance policy to insure these financial obligations. Defendant maintains that the issue of jurisdiction is for the Bulgarian court to decide.
HOLDINGS:
Defendant's motion to dismiss the divorce and custody proceedings on the grounds that New York is an improper venue is denied.
A hearing is ordered to determine temporary custody of the two marital children.
Defendant is ordered to pay child support in an amount calculated under the New York State Child Support Standards Act, and childcare. Defendant is ordered to pay $14,338.75 in annual child support ($275.75 weekly).
The court reserves its decision on whether or not to order Defendant to obtain a life insurance policy.
Defendant is ordered to provide his pro rata share of full hospitalization insurance, major medical, optical and dental insurance coverage for the children to such time that they become legally emancipated and un-reimbursed medical, optical, and dental expenses; and full hospitalization insurance, major medical and dental insurance coverage for the Plaintiff until the entry of judgment of divorce.
Defendant is ordered to pay $2,000 in counsel fees, which should provide for Plaintiff's legal expenses until the parties' financial circumstances can be examined more closely at trial.
Defendant's Motion to Dismiss
Defendant moves to dismiss this action, insisting that the court allow the Bulgarian action to run its course, but fails to cite any support for such proposition. The question before this court is whether New York is an appropriate venue for this divorce action and custody proceeding. If Bulgaria is the more appropriate venue for the divorce proceedings, then the New York action can be stayed or dismissed pending the resolution of the divorce proceedings in Bulgaria. (CPLR Rule 327; see also VSL Corp. v. Dunes Hotels and Casinos, Inc., 70 NY2d 948, 949). However, this is not true for the custody proceedings. Rather, the Child Custody Jurisdiction and Enforcement Act (UCCJEA) will dictate whether or not New York is an appropriate venue for the custody action.
As defendant failed to specifically state the basis for its motion to dismiss, plaintiff assumed that Defendant is relying on CPLR § 3211(a)(4). CPLR § 3211(a)(4) is only applicable when pending litigation exists either in another court within New York, a sister state or the Federal System. (CPLR § 3211(a)(4) ["[A] party may move for a judgment dismissing . one the grounds that there is another action pending between the same parties for the same cause of action in a court of any state or the United States."]); see L-3 Communications Corp. v. SafeNet , Inc. , 45 AD3d 1 , 7 [1st Dep't 2007]). Dismissal pursuant to CPLR § 3211(a)(4) is not applicable when the pending litigation is in a foreign tribunal. ( See CPLR § 3211(a)(4); L-3 Communicaptions Corp., 45 AD3d at 7; see e.g. Abkco Industries Inc. v. Lennon, 85 Misc 2d 465, 471). Since pending litigation is located in Bulgaria, CPLR § 3211 (a)(4) does not apply, and Defendant's motion to dismiss necessarily fails.
When the pending litigation is in a foreign tribunal, a party may move for dismissal pursuant to CPLR § 327 Forum Non Conveniens. ( Abkco Industries Inc., 85 Misc 2d at 471.) Pending litigation in a foreign tribunal is not dispositive of Forum Non Conveniens applicability. ( Id.). CPLR § 327(a) states that a dismissal or stay is appropriate when "the interest of substantial justice" would be served if the action were heard in another forum. In making such a determination, the court must exercise discretion in considering and balancing various relevant factors. ( Islamic Republic of Iran v. Pahlavi, 62 NY2d 474, 478-84). Defendant bears the burden of showing "relevant private or public interest factors" rendering the forum inappropriate. ( Id). Some factors to consider include the burden on the New York courts, hardship to Defendant, availability of an alternative forum, locus of the cause of action, and residency of the parties. ( Id.). "No one factor is controlling." (Id.) If a substantial nexus exists between the claim and the jurisdiction, then Defendant has not proven that the forum is inappropriate. ( See Id.; see also Silver v. Great American Ins. Co., 29 NY2d 356, 361).
In the within action, the parties currently reside in New York, they lived in New York while married, and any rulings made in Bulgaria would place the burden of enforcing the decision on the New York courts. Additionally, there is no evidence in Bulgaria, and the only witnesses in Bulgaria are the parties' parents. Any burden imposed on the parties' parents by conducting the proceedings in New York is far outweighed by the benefits of having all parties, other witnesses, and relevant information within the same jurisdiction. Further, any financial information relevant to the proceedings will be in New York since that is where the parties lived during their marriage. Accordingly, the court finds that there exists a substantial nexus between New York and the subject marriage. Defendant's rationale for deferring to the Bulgarian proceeding is that he knows the Bulgarian system better and much of their lives are tied to Bulgaria, where they will probably return one day. Preferring the Bulgarian system does not create a significant enough inconvenience to warrant a dismissal for Forum Non Conveniens, nor does the possibility of Defendant moving back to Bulgaria permanently one day make it a more appropriate venue. Because New York is an appropriate venue, and there appears to be no venue more appropriate, Defendant's argument to dismiss or stay the matrimonial action in New York is denied.
Additionally, even if New York lacked a substantial nexus with this action and the Forum Non Conveniens factors weighed in favor of a dismissal, this court has no authority to order a dismissal pursuant to CPLR § 327 sua sponte. ( See VSL Corp., 70 NY2d at 949; see also Carr v. Integon General Ins. Corp., 185 AD2d 831, 832 [2d Dep't 1992]). One of the parties must move for a dismissal pursuant to CPLR Rule 327 or such relief cannot be granted. ( VSL Corp., 70 NY2d at 949). For the foregoing reasons, Defendant's motion to dismiss the matrimonial action commenced by Plaintiff is denied.
Custody
Defendant argues that this entire action, including the custody hearing should be dismissed to allow similar litigation in Bulgaria to finish. Whether New York has jurisdiction over the custody proceedings is determined by the Uniform Child Custody Jurisdiction and Enforcement Act (1997) (UCCJEA), which dictates that jurisdiction be determined based on the child's home state (Domestic Relations Law, § 75-d, subd 1, par [a]) or in a state that was the child's home state before being removed at some point in the past six months by one of the parties (Domestic Relations Law, § 75-c, subd 5). Paulina's home state is New York because she has lived in Queens with her parents for over six months. New York also has a jurisdictional predicate that allows a court to assume jurisdiction if it is in the best interest of the child, that is, Domestic Relations Law, § 75-d, subd 1, par [b] states in relevant part:
(I) the child and his parents, or the child and at least one party have a significant connection with the state and (ii) there is within the jurisdiction of the court substantial evidence concerning the child's present or future care, protection, training, and personal relationships"
(Domestic Relations Law, § 75-d, subd 1, par [b]).
Even though New York is not M.V.'s home state having only returned to New York January 2010, it still might be in his best interest to hold the custody proceedings in New York. Both parents live in New York, as does M.V.'s sister, establishing their significant connection to the jurisdiction. The evidence concerning the child's present or future care, protection, training, and personal relationships with regard to the parents exists entirely in New York. While M.V. did reside in Bulgaria with his grandmother until January, such a personal relationship comes second to the relationship between a child and his parents, and a brother and sister. Whatever the result of the proceedings, the protection and care decisions will come from New York, even if the grandmother in Bulgaria ultimately carries them out. Defendant opposed M.V.'s removal from Bulgaria because M.V. was in the middle of school and it would disrupt his education. Even if this was a legitimate concern at the time, M.V. has been in New York for over five months and has already suffered this disruption. Defendant's argument that the New York custody proceedings be stayed or dismissed is rejected.
In her cross motion, Plaintiff seeks temporary custody of the two marital children. Currently both children are in New York residing with Plaintiff, who has made allegations of violence against Defendant. When there are conflicting allegations or affidavits relevant to a parent's fitness as a parent, such as the case here, the court should hold a hearing to determine temporary custody. ( See Carlin v. Carlin , 52 AD3d 55, 76 [2d Dep't 2008]; see also Biagi v. Biagi, 124 AD2d 770, 770 [2d Dep't 1986]). A hearing is not required if the parties agree on the factual issues related to the parents' fitness. ( Carlin, 54 AD3d at 76. See also Asteinza v. Asteiza, 173 AD2d 515, 516 [2d Dep't 1991].
Here, Plaintiff claims that Defendant is violent and that he cut her with broken glass in 2006, for which she sought emergency medical care. Defendant, however, claims that he has never hurt Plaintiff nor the children. He claims that in 2006, he did not hit Plaintiff with glass, but that the glass shattered on its own during an argument. Moreover, Plaintiff claims that their daughter is scared of Defendant, because of his alleged violent behavior. Defendant claims that he and his daughter have a loving relationship and that the mother tries to alienate his daughter from him. Furthermore, Defendant claims that the Plaintiff forged his signature in order to take their son to the United States from Bulgaria, while his Plaintiff claims that Defendant's signature was not required in order to bring their son to the United States. Lastly, it is disputed whether or not Plaintiff is taking prescription medicine for psychological problems. Therefore, as in Biagi, the several disputed issues would best be resolved at a hearing. ( Biagi, 124 AD2d at 770).
Furthermore, a common practice in matrimonial proceedings where two or more children are involved is to appoint a single attorney to represent the multiple related children, provided the interests of the children coincide. ( Rosenberg v. Rosenberg, 261 AD2d 623, 624 [2d Dep't 1999]). But when the children have divergent interests, the appointment of a single attorney for the children is an improvident exercise of the court's discretion. ( Corigliano v. Coriglian, 297 A.DF.2d 328, 329 [2d Dep't 2002]). In the within action, the parties daughter has been residing in Queens for the past ten years, however, their son was born and raised in Bulgaria and only resided in Queens from 2008 to 2009. Therefore, this situation warrants the assignment of separate attorneys for the children to represent each of the children's conflicting interests. ( Id.).
Accordingly, a hearing shall be ordered to determine custody of the two children on September 13, 2010 and an attorney for each child shall be appointed by separate order.
Child Support
Plaintiff's cross motion also seeks temporary child support as calculated under The Child Support Standards Act (CSSA). Child support is ordinarily determined by the guidelines set forth in The CSSA ( Ryan v. Ryan, 186 AD2d 245, 246 [2d Dep't 1992]). The Act requires that child support be paid and determines the amount based on percentages of the parties' gross income (Domestic Relations § Law 240). The Act indicates an appropriate percentage of gross income based on the number of children to be supported. However, when the court awards pendente lite relief it is not bound to the guidelines. ( See Ryan, 186 AD2d at 246). Rather, it is in the discretion of the court to use those standards appropriately in the context of the record before it. ( Ryan, 186 AD2d at 246; see Asteinza, 173 AD2d at 516). The predominant consideration in determining whether to use the statutory guidelines to determine a pendente lite award of child support is the financial needs of the party making the application. ( Cooper v. Cooper , 7 AD3d 746 , 747 [2 Dep't 2004]; Shanon v. Patterson, 294 AD2d 485, 48 [2d Dep't 2002]). However, the husband's financial needs and obligations must be taken into consideration as well. ( DeNicola v. Denicola, 108 AD2d 745, 746 [2d Dep't 1985]). Specifically, the noncustodial parents' ability to live and manage debts should be taken into consideration. ( See Id.).
The CSSA dictates that each parent shall pay their pro rata share of the appropriate percentage of the gross income reflected on the parties' most recent Federal Income Tax Return (DRL § 240 [1-b][b][5]). The Act provides that when there are two children from a marriage, the non-custodial parent shall pay his pro rata share of 25% of the parties' gross income (DRL § 240 [1-b][b][3]). Defendant's undisputed income in 2009 was $57,355, as reflected on his 2009 Net Worth Statement. Plaintiff's undisputed income for 2009 was $30,725, as reflected on her 2009 Net Worth Statement. The gross income of the parties' in 2009 was $88,080. Defendant's pro rata share of 25% of that income is $14,338.75 annually, or $275.75 weekly.
Currently, Defendant claims he is responsible for marital debt in excess of $30,000, which is supported by his 2009 Net Worth Statement, but fails to provide the information regarding exact payments owed. In order to consider Defendant's current financial obligation, the court would need to know the monthly payment amounts toward the balance. Conversely, Plaintiff has provided monthly expenses and an affidavit from her sister supporting her assertion that she is borrowing money to meet these expenses. Because the financial needs of the party seeking relief are the predominant factor in awarding child support, and Defendant has failed to provide sufficient information regarding his financial needs and obligations, the pendente lite award of child support will be determined following the guidelines set forth in the CSSA.
Based on the foregoing reasons, plaintiff's request for pendente lite relief is granted and Defendant is ordered to pay $14,338.75 in annual child support ($275.75 weekly).
Life Insurance
Additionally, Plaintiff's cross motion seeks an order by the court directing Defendant to obtain a life insurance policy in the amount of $200,000, naming his children as the beneficiaries and Plaintiff as trustee in the event of Defendant's death. The court has the authority to order a party to obtain a life insurance policy as a means of securing future support (Domestic Relations Law § 236 [B][8][a]). However, DRL § 236 does not require the court to make such an order. (DRL § 236 (B)(8)(a) ["The court may also order a party to purchase insurance on the life of either party."]. When the court does order a party to obtain life insurance, the policy should be in an amount comparable to the amount of child support payments to be paid in the future. ( Penna v. Penna , 29 AD3d 970 , 972 [2d Dep't 2006]. Further, the policy should permit reduction in the amount of benefits by the amount of support actually paid over time. ( See Moran v. Grillo , 44 AD3d 859 , 861 [2d Dep't 2007]).
Here, Defendant argues that he is responsible for the marital debt and has not been earning the same income that he did in 2009. Further, even if Defendant earns a similar income, once child support and legal fees are subtracted, Defendant's disposable income will be minimal. Defendant's financial abilities are presently unclear, and thus an order that Defendant obtain a life insurance policy is inappropriate until Defendant's financial circumstances are resolved at trial. ( DGM Partners-Rye v. Board of Architectural Review of City of Rye, 176 AD2d 875, 876 [2d Dep't 1991]). Accordingly, the court reserves its decision on whether or not to order defendant to obtain a life insurance policy until that time.
Medical, Dental, and Hospitalization Expenses
Plaintiff further seeks an order by the court directing Defendant to provide his pro rata share of hospitalization insurance, major medical, optical and dental insurance coverage for the children to such time that they become legally emancipated, and un-reimbursed medical, optical, and dental expenses; and full hospitalization insurance, major medical and dental insurance coverage for Plaintiff until the entry of the judgment of divorce. DRL § 240 (1-b)(c)(4) provides that all health insurance expenses will be pro rated in proportion to each party's share of the gross income. DRL § 240 also provides that each parent pay their pro rata share of any reasonable health care expenses not reimbursed by insurance (DRL § 240 [1-b][c][5]). Defendant is therefore ordered to pay Plaintiff for his share of the children's unreimbursed medical expenses in addition to his pro rata share of any expenses associated with maintaining Plaintiff's health insurance plan. Defendant's pro rata share is based on his portion of the gross income, approximately 66%.
Counsel Fees
Lastly, Plaintiff's cross motion seeks an order awarding counsel fees in the amount of $5,500. Plaintiff has $3,499 in monthly expenses and alleges that she is currently borrowing money from her sister to meet these expenses. She has already paid her attorney $3,000, which has allowed for the commencement of this action, but alleges that she will be at a disadvantage if she is not granted $5,500 in counsel fees.
When determining whether to award counsel fees and expenses, the court must look to the financial circumstances of both parties. ( See DeCabrera v. Cabrera-Rosete, 70 NY2d 879, 881 [quoting DRL § 237]; Assini v. Assini , 11 AD3d 417 , 418 [2d Dep't 2004]). Counsel fees may be awarded when the applicant spouse is financially needy and the other spouse has the resources to pay them. ( Cinnamond v. Cinnamond, 203 AD2d 229, 230 [2d Dep't 1994]). The applicant spouse does not have to be indigent or out of resources to receive an award of counsel fees. ( Lieberman v. Lieberman, 187 AD2d 567, 567 [2d Dep't 1992]). But the court must also consider Defendant's ability to pay. ( Cinnamond, 203 AD2d at 230). When the applicant spouse has the resources to pay the fees, and the other spouse is financially insecure, the court has often denied the application. ( Chalif v. Chalif, 298 AD2d 348, 348 [2d Dep't 2002]). If both the financial situations of the parties' are relatively equal the application is usually denied as well. Kavanakudiyil v. Kavanakudiyil, 203 AD2d 250, 251 [2d Dep't 1994] [holding that the Supreme Court erred in awarding counsel fees to Plaintiff when neither party had assets greater than, nor earning power far superior to the other, and the husband was unemployed and in substantial debt at the time of the trial]). Similarly, where the party whom relief is sought against is burdened by significant debt, as is the case here, an award of counsel fees may not be appropriate. ( Popelaski v. Popelaski , 22 AD3d 735 , 738 [2d Dep't 2005]).
Here, Defendant claims he is currently responsible for over $30,000 in marital debt. Defendant being responsible alone for the marital debt is a factor that weighs against granting Plaintiff counsel fees. (Id). Additionally, Defendant will be paying Plaintiff $275.70 in child support which should alleviate the burden on Plaintiff imposed by the children's expenses. The payments will also decrease Defendant's spendable income by $14,448.75 annually. Once this amount is subtracted from Defendant's gross income as it was reflected on his 2009 tax return, Defendant's income is $42,906.25. This leaves approximately a $12,000 disparity between the parties' incomes. The low disparity in the parties' incomes, which might ultimately disappear once the parties' finances are examined more closely, also weighs against granting Plaintiff's full relief. ( Kavanakudiyil v. Kavanakudiyil, 203 AD2d at, 251 [2d Dep't 1994].) In the interest of this action going forward without either party suffering a disadvantage, Defendant is ordered to pay $2,000 in counsel fees which should provide for Plaintiff's legal expenses until the parties' financial circumstances can be examined more closely at trial.
ORDERED that Defendant's motion to dismiss the divorce and custody proceedings on the grounds that New York is an improper venue is denied.
ORDERED that a hearing shall be held on September 13, 2010 to determine temporary custody of the two marital children.
ORDERED that Defendant pay child support in an amount calculated under the New York State Child Support Standards Act, and childcare. Defendant is ordered to pay $14,338.75 in annual child support ($275.75 weekly). ORDERED that Defendant provide his pro rata share of hospitalization insurance, major medical, optical and dental insurance coverage for the children to such time that they become legally emancipated and un-reimbursed medical, optical, and dental expenses; and full hospitalization insurance, major medical and dental insurance coverage for the Plaintiff until the entry of judgment of divorce.
ORDERED that Defendant pay $2,000 in counsel fees, which should provide for plaintiff's legal expenses until the parties' financial circumstances can be examined more closely at trial.
A copy of this order has been mailed to the parties and/or their respective counsel.