Opinion
02-07-2020
WILLIAM L., Plaintiff, v. THERESE L., Defendant.
Counsel for Plaintiff: JANESE N. THOMPSON, Esq., Thompson Law Group, P.C., New York Counsel for Defendant: pro se
Counsel for Plaintiff: JANESE N. THOMPSON, Esq., Thompson Law Group, P.C., New York
Counsel for Defendant: pro se
Douglas E. Hoffman, J.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41
were read on this motion to/for DISMISSAL
This matrimonial action comes before the court upon pre-answer motion by, pro se defendant-wife, Therese L., for an order dismissing the complaint on several bases. Ms. L. asserts that plaintiff-husband William L. did not serve her properly. In addition, defendant contends that plaintiff does not satisfy the residency requirements necessary to bring this action in New York. Finally, defendant argues that, pursuant to the doctrine of forum non conveniens, the United Kingdom, where she and her daughter reside, provides the most appropriate forum to preside over the divorce and any related proceedings. As discussed below, based upon forum non conveniens, the court declines to exercise jurisdiction over this action, and grants the motion to the extent of staying this action pending the prompt commencement of both a child custody proceeding and a divorce action, or one combined action, in the United Kingdom. Accordingly, the court also denies as moot plaintiff's cross motion for an order granting him time beyond the 120-day period to serve defendant if defendant has not already been properly served.
According to the Verified Complaint (NYSCEF Doc. No. 1), the parties married in England on * * *, 2014. They have one daughter, E.L, who was born in 2011 in London (NYSCEF Doc. No. 11). The complaint asserts that defendant and the parties' child in common lived in New York on a continuous basis from May * * *, 2014 until approximately February * * *, 2019. The parties and their child moved to this country in connection with plaintiff's job as a * * * for * * *, which is headquartered in London but has offices around the world. Plaintiff asserts that he currently resides at * * *, in Manhattan. Plaintiff has acknowledged that he was out of this State and country from December * * *, 2018 to June * * *, 2019 as his United States work visa had been revoked because of domestic violence charges New York State was pursuing against him. As a result, his employer sent him to work in one of its Singapore offices until he was able to obtain a new visa and return to the United States (NYSCEF Doc. No. 10 ¶ 18). Although he travels internationally because of his job, plaintiff states that he has steadily maintained a residence in New York. He asserts that he has filed tax returns in New York for several years (id. ¶¶ 15-16; see also NYSCEF Doc. Nos. 27-29 [excerpts from 2016, 2017, and 2018 tax returns] ).
Plaintiff appears to have derived this end date based on the original expiration date of his wife and child's visas.
Defendant also had obtained a two-year final order of protection against plaintiff for the period of February * * *, 2019 through February * * *, 2021. The court further notes that the conditional discharge order, which plaintiff annexes to his opposition papers, was in exchange for his guilty plea (see NYSCEF Doc. No. 32).
According to plaintiff, there has been an irretrievable breakdown of the marital relationship for more than six months ( Domestic Relations Law § 170 [7] ). Defendant does not contest this allegation. In his complaint, Mr. L. seeks title and possession of his own property, possession of the marital residence, an equitable share of marital property, his attorney's fees and all other fees related to the divorce action. He also seeks an order compelling Ms. L. to pay half of all marital debts, granting the parties joint custody, and determining a proper amount of child support. Plaintiff also asks that the New York County Family Court retain concurrent jurisdiction with this court concerning "any future issues of maintenance and child support" (NYSCEF Doc. No. 1 at p 3, sub¶ 2). Plaintiff verified the complaint in London, England on May 20, 2019, and his New York attorney filed it in New York on May * * *, 2019. The affidavit of service indicates that plaintiff served the complaint and other papers on defendant by mail on July 5, 2019, pursuant to England's rules for service (NYSCEF Doc. No. 4).
Defendant prepared her motion to dismiss in London, England. She is not represented by counsel at this time. Her affidavit in support of the motion is dated September 10, 2019. The County Clerk's office here in New York e-filed the motion and the supporting documents (NYSCEF Doc. No. 6), as defendant is not a participant in the e-filing system.
According to defendant, this action should be dismissed under the principle of forum non conveniens, as England is the appropriate forum to hear all issues in this action. Both she and her daughter reside in London, and "plaintiff is only a temporary resident in the US" (NYSCEF Doc. No. 6 ¶ 24). Ms. L. states that she and her daughter "are British citizens and are habitually resident in the UK" (id. ¶ 6). Plaintiff was born in France, and the parties married in * * *2014 in London (id. ¶ 7). Defendant claims that neither plaintiff nor defendant resided in New York when plaintiff commenced the current action, and notes that plaintiff verified the complaint in London (see NYSCEF Doc. No. 1 at p 6).
In addition, Ms. L. asserts that the initiation of a lawsuit in New York "disregards the impact on the child," whom plaintiff allegedly abandoned and who, defendant claims, witnessed plaintiff's abuse of defendant (id. ¶ 25). Defendant states that the child has "now settled into the very supportive environment of her new school and community where she is making great progress and her emotional needs and anxieties are being appropriately addressed" (NYSCEF Doc. No. 6 ¶ 26). Defendant posits that it would be detrimental to the daughter if she were forced to participate in a litigation based in New York, both because it would be disruptive to the child and it would cause stress to defendant, the child's primary caregiver. Ms. L. notes the financial burden to her and her daughter if she were forced to litigate in New York.
Further, defendant notes, she and her daughter have resided in London for longer than plaintiff alleges. Defendant and her daughter's visas were revoked in December 2018 because plaintiff had lost the work visa which entitled them to live in the United States (see id. at pp 28-29 [correspondence with embassy]; NYSCEF Doc. No. 38 [Def's Reply Aff] ¶ 56). Ms. L. states that, accordingly, after she and her daughter moved to London on December * * *, 2018 (see NYSCEF Doc. No. 38 at p 11 [airline boarding passes] ), and that they did not — and, indeed, could not — return to the United States (see also NYSCEF Doc. No. 6 at p 33 [letter from the Gaia Centre indicating that defendant moved back to London on * * *day in 2018] ).
Plaintiff argues that the court should not dismiss this action based on forum non conveniens. Mr. L. states that he resides in New York in an apartment for which he has a lease, that his job is based in New York although he travels frequently, and he regularly files taxes in New York. This, he claims, provides the requisite "substantial nexus" to New York (NYSCEF Doc. No. 9 ¶ 50). Further, he argues that because his daughter lived and went to school in New York until her move to London, New York is an appropriate forum. Plaintiff's own affidavit details his numerous ties to this state and the past ties of his wife and child to New York (see generally NYSCEF Doc. No. 10). He submits redacted photographs, the last of which is dated September 24, 2018, which show his daughter at a 2017 graduation (at an unnamed school) and at P.S. * * *, which is in New York (NYSCEF Doc. Nos. 21-25).
Plaintiff refers to the fact that defendant and their daughter moved to London without his knowledge. This is not legally significant here as "there was no custody order preventing her from doing so" (Valji v. Valji , 130 AD3d 404, 404 [1st Dept 2015] [concerning the retention of child custody and support issues] ).
In reply, defendant points out that she already acknowledged that she and her daughter resided in New York until December 2018. Therefore, she states, the evidence plaintiff submits in support of this contention is irrelevant to the motion at hand, as are plaintiff's tax returns. Defendant reiterates that she and her daughter were not in New York through February 2019, as plaintiff alleges, but left the prior December; in further support, she submits a copy of a January 18, 2019 letter from Universal Credit, responding to defendant's prior inquiry and acknowledging that she was "habitually resident in the UK" (NYSCEF Doc. No. 38 at p 14). Moreover, defendant emphasizes that her daughter was born in London, that her daughter lived there from 2011 until mid-2014, when the parties moved to New York, and that she has lived in London since December * * *, 2018. Further, defendant states that she and her daughter have not possessed valid United States visas since their prior ones were revoked in December 2018.
To the extent that plaintiff's reply papers, purportedly in support of his cross-motion, further oppose defendant's motion and respond to her reply (NYSCEF Doc. No. 39), the document is a sur-reply for which plaintiff did not seek permission or show good cause (see CPLR § 2214 [c] ). Therefore, the court does not consider any further responses to defendant's forum non conveniens argument.
Defendant essentially makes two forum non conveniens arguments, one pursuant to CPLR § 327 concerning the entire matrimonial action, and the other pursuant to DRL § 76-f concerning a child custody proceeding. Whether or not the United Kingdom is an appropriate forum for the child custody aspect of this action may play a meaningful role in whether or not the U.K. should serve as the more appropriate forum for the entire divorce action, although there can be a custody proceeding in one jurisdiction and a divorce action in another jurisdiction. Kilcullen v. Bubanj , 116 AD2d 470, 471 [1st Dept 1986].
Plaintiff filed the summons and complaint in New York on May * * *, 2019 and caused defendant to be served on July 5, 2019. Defendant asserts that she and the child moved back to the United Kingdom in late December 2019. As of the date of filing of this action, as opposed to date of service, the child had not resided in the United Kingdom for six months and, therefore, New York must be considered the "home state" of the child pursuant to DRL § 75-a(7). As the home state, New York, then, has jurisdiction to make the initial child custody determination, provided, however, that one of the parents continues to live in New York, DRL § 76 (1)(a), a necessary factual predicate that Ms. L. contests.
Pursuant to this section, home state "means the state in which a child lived with a parent for at least six consecutive months immediately before the commencement of a child custody proceeding"
Assuming for purposes of discussion that the father continues to reside in New York State, this court may decline to exercise jurisdiction over the child custody issues if "it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum" DRL § 76-f(1). In determining whether New York is an inconvenient forum, the court must consider whether it is appropriate for England to exercise jurisdiction and must "consider all relevant factors, including:
(a) Whether domestic violence has occurred and is likely to continue to occur 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, including testimony of the child ;
(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
The court's "own belief" as to the best forum for the litigation also is pertinent (see Matter of Kevin McK. V Elizabeth A.E. , 151 AD3d 600, 601 [1st Dept], lv app den. , 30 NY3d 1028 [2017] ).
The court concludes that England is, by far, the more convenient forum to address child custody issues. Defendant and the daughter live in England, are British citizens, and although they previously had United States visas, they do not at this time. "The evidence as to the child['s] care, well-being, and personal relationships is more readily available in [England]" (Matter of Eric R. v. Celena P. , 121 AD3d 524, 524 [1st Dept 2014] ). Moreover, although the daughter, who is around eight years old, lived in New York from mid-2014 to late-2018, she lived in London from her birth in 2011 to mid-2014 and she now has resided and attended school in England for over a year. Plaintiff also anticipates that London will remain his daughter's primary residence (see NYSCEF Doc. No. 34 ¶ 7). It would be disruptive to require the child to leave school for periods of time if that is necessary. Despite the jurisdiction of this court to resolve child custody (see DRL § 76 [1] [a] ), custody matters and future custody disputes are best resolved in The United Kingdom, where the child resides. It would also be impractical to appoint an attorney for the child in New York for a child who resides in London. In addition, it is highly probable that a court deciding custody would conduct an in camera interview with the subject child, which interview should take place in London as the child flying to New York for such an interview would be impractical under the present circumstances. The geographic distance between the New York and United Kingdom courts also makes it unduly burdensome on defendant and the daughter. Very importantly, there is a two-year order of protection against plaintiff in place based upon plaintiff's plea to domestic violence-related charges concerning defendant, issued by a criminal court (not this court or the Family Court), and defendant has asserted that she fled New York to escape domestic violence. There is no reason to believe that either the New York court or the United Kingdom court has any special familiarity with the parties or the child, or that one court or the other could hear the matter more expeditiously than the other. It appears that plaintiff is the more monied spouse and could more readily afford to travel to London as needed for custody proceedings.
The daughter's birthdate is redacted on the birth certificate in evidence, but she was born in 2011.
In addition, plaintiff has not shown that London would be an inconvenient forum for him. By his own admission, although plaintiff resides in New York, he travels internationally for his work on a regular basis (NYSCEF Doc. No. 10 ¶ 16). Indeed, plaintiff states that between December * * *, 2019 and June * * *, 2019 he worked in Singapore (id. ¶ 18). Moreover, he verified his complaint in London on May 20, 2019 (NYSCEF Doc. No. 1) and verified his affidavit in opposition to the current motion in France on October 7, 2019 (NYSCEF Doc. No. 10). The fact that plaintiff may reside in New York carries less weight than it might if he were not in London, his employer's headquarters, periodically. His frequent travel, often for lengthy periods, suggest that the New York forum might not be as convenient as plaintiff's residence here normally might indicate. In addition, any witnesses from New York could testify in the United Kingdom via Skype or another medium. See, e.g. , DRL § 75-j ; Matter of Burdick v. Boehm , 148 AD3d 1439, 1441 [3rd Dept 2017] [citations omitted]; Kelly v. Krupa , 63 AD3d 1395, 1396 [4th Dept 2009] (upholding finding that Florida is a more convenient forum; holding that trial court did not abuse "its discretion by not retaining jurisdiction and allowing witnesses in Florida to appear by electronic means"). Accordingly, this court finds that New York is not a convenient forum for these child custody matters to be heard and that the United Kingdom is the most convenient forum.
Much of the same analysis applies to defendant's request to have the overall divorce action heard in the United Kingdom, rather than in New York. "When the court finds that in the interest of substantial justice the action should be heard in another forum, the court ... may stay or dismiss the action in whole or in part .... The domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action" ( CPLR § 327 [a] ). See Islamic Republic of Iran v. Pahlavi , 62 NY2d 474, 478-89 [1984], cert den. 469 US 1108 [1985]. The court has the discretion to consider whether "in the interest of substantial justice the action should be heard in another forum" ( Fekah v. Baker Hughes Inc. , 176 AD3d 527, 528-29 [1st Dept 2019] (internal quotation marks and citation omitted0). If the court weighs the pertinent factors and its determination is "provident," the appellate court upholds the trial court's ruling (see, e.g. , Karella v. Karella , 159 AD2d 414, 414 [1st Dept 1990] (affirming dismissal where defendant showed that Greece was the most appropriate forum)). See also Fernie v. Wincrest Capital, Ltd. , 177 AD3d 531 [1st Dept 2019] ("[A]lthough there are some witnesses and evidence in New York, and one defendant is a New York resident, the court properly determined that New York is an inconvenient forum for this action."). Pursuant to CPLR § 327(a), the relevant factors in the forum non conveniens analysis include: (1) the burden on the New York court; (2) the potential hardship to the defendant; (3) the unavailability of an alternative forum in which plaintiff may file suit; (4) whether both parties are nonresidents; and (5) whether the transaction from which the cause of action arose occurred primarily in a foreign jurisdiction. Fekah , 176 AD3d at 528, citing Islamic Republic of Iran , 62 NY2d at 479. "The court may also consider the location of potential witnesses and documents and potential applicability of foreign law." Fekah , 176 AD3d at 528, citing Shin-Etsu Chem. Co., Ltd. V. ICICI Bank Ltd. , 9 AD3d 171 [1st Dept 2004].
New York law does not, however, require that an alternative forum be available. Primus Pac. Partners 1, LP v. Goldman Sachs Group, Inc. , 175 AD3d 401 [1st Dept 2019] (citations omitted; emphasis added).
As discussed above, there would be a significant hardship to defendant to litigate this matrimonial action in New York and there is a better forum available in the United Kingdom. There is no particular burden on the New York court, one party is clearly a nonresident, while the other may be a New York resident who travels frequently. The cause of action for divorce and for ancillary relief may have arisen in both jurisdictions and the court has already discussed the issue of witness availability.
Plaintiff's additional arguments with respect to the overall divorce action are not persuasive. Plaintiff, a nonlawyer, asserts in conclusory fashion that the United Kingdom lacks jurisdiction over the divorce because he lives in New York (NYSCEF Doc. No. 10 ¶ 26). His lawyer does not make this argument or provide any legal support for this proposition. The fact of the daughter's past life in New York is also not dispositive because of the factors this court has described above.
The court does not need to reach defendant's other arguments. With respect to the issue of personal jurisdiction, however, the court notes that, as plaintiff alleges, the certificate of service is prima facie evidence that he served defendant in compliance with the Hague Convention ( Voelker v. Bodum USA, Inc. , 149 AD3d 587, 587-588 [1st Dept 2017] ; see Mancino v. Mancino , 251 AD2d 963, 963 [3d Dept 1998] ). On the other hand, defendant's sworn statement that she found the papers in an unmarked envelope on the floor of her mailroom — which is corroborated by her email to plaintiff's counsel (NYSCEF Doc. No. 34 at pp 3-4) — would have created a triable issue of fact. Rather than hold a traverse hearing here in New York (see Cruz-Guzman v. 2380-2386 Grand Ave, LLC , 137 AD3d 639, 640 [1st Dept 2016] ), the court would have granted the cross motion and would have provided for specific means of service. In any case, it is appropriate for this court to address defendant's motion to dismiss this action on forum non conveniens grounds without first determining whether it had acquired personal jurisdiction over Ms. L. Estate of Kainer v. UBS AG , 175 AD3d 403 [1st Dept 2019], citing Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp. , 549 US 422 [2007], as it has determined that, in any event, the United Kingdom court would be more suitable to adjudicate the claims herein. Id. at 425 .
Further, the parties raise a number of issues that are not relevant to the motion to dismiss, including questions about whether plaintiff has provided financial support that is accessible to defendant, and whether and to what extent plaintiff tried to see the child following the parties' separation. The court does not address these issues, which are more appropriately reserved for the action itself. The court has considered all relevant arguments even if not expressly addressed herein, as consideration of those arguments would not have changed the ultimate determination.
Accordingly, it is hereby,
ORDERED that the motion is granted based on forum non conveniens, the court declines to exercise jurisdiction, and this action is stayed pending prompt commencement in the United Kingdom of a child custody proceeding and divorce action, or one combined action; and it is further
ORDERED that either party commencing an appropriate proceeding and/or action in the United Kingdom shall notify the court promptly and in writing when that party commences such a proceeding and/or action, and that party shall promptly send a copy of this notice to the other party.
This provision shall not relieve the filing party from service requirements applicable to the new custody and/or divorce matters themselves, pursuant to those applicable laws.