Opinion
142952009.
Decided July 23, 2009.
Stephen Posner, Esq., Posner Gaier, Hempstead New York, for the plaintiff.
Allan D. Mantel, Esq., Stein, Riso Mantel, New York, New York, for the defendant.
The parties, who are Italian citizens, were married in Italy in 1993, and there are four children of the marriage aged 13, 8, 6 and 4 years. The parties own a home in Vicenza, Italy and defendant is the Managing Director of Legor Group, a family-owned business also based in Vicenza, Italy. Plaintiff is unemployed but, in May of 2009, enrolled to take non-credit continuing education courses at New York University. Plaintiff alleges that the parties' marital difficulties began on 2000. The parties initially came to New York for a vacation in December 2006, and plaintiff claims that it was decided then that the parties "needed a new start on their marriage" and decided to move to New York. Defendant, however, maintains that the parties' decision to move to New York was based on his temporary stay to establish a New York office for Legor Group. In or about March 2007, the parties returned to New York, located an apartment and an office for the business, and enrolled the two eldest children in a school sanctioned by the Italian Ministry of Education. Defendant claims that the children were so enrolled so as to facilitate their return to Italian schools at the conclusion of the family's stay in New York, a claim that plaintiff now disputes. The younger two children were enrolled in public school. Defendant maintains that the apartment remained vacant until mid-July 2007, when the parties arrived in New York with the children, and defendant supplies copies of airline itineraries to support this claim. The parties returned to Italy for the Christmas holidays for approximately three weeks in December 2007 and, at the end of the school year in New York, vacated the rental apartment and returned to the marital home in Italy in June of 2008. The family resided in Italy until September 2008, whereupon the parties and the children returned to New York and rented a different apartment for ten months. The family again returned to Italy for the holiday school break in December 2008. Defendant maintains that, in December 2008, in anticipation of the family's return to Italy and the end of the school year, the parties booked tickets for a return to Italy on July 1, 2009. Defendant also supplies a copy of an invoice showing payment for the re-enrollment of the children in school in Italy for the 2009-2010 school year, which plaintiff now claims was done without her consent.
The parties' marital difficulties evidently ensued into the Spring of 2009. Defendant supplies a translated copy of a letter, dated April 14, 2009, from an Italian divorce lawyer on behalf of plaintiff, seeking a possible resolution of the "discord and tension" in the marriage. Defendant states that he then retained Italian divorce counsel and that "there have been discussions and negotiations between those attorneys." Plaintiff claims that in May of 2009 defendant blocked her credit card and became increasingly distant from the family. Plaintiff then commenced the instant action for divorce in New York on June 6, 2009. On June 23, 2009, defendant commenced an action for separation in Italy. On June 24, 2009, defendant filed the instant motion seeking to dismiss this action and commenced proceedings in the Federal court pursuant to the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Remedies Act regarding the children's return to Italy.
That branch of defendant's motion seeking dismissal of this action due to the failure of either party to meet the residency requirements of Domestic Relations Law § 230 is granted. Plaintiff, insofar as she has not yet filed her complaint, does not set forth which subdivision of section 230 applies for purposes of satisfying the residency requirements, but all require a period of residency of at least one year. (Domestic Relations Law § 230-[5].)
There is no merit to plaintiff's contention that the instant motion to dismiss is premature on the grounds that a complaint has not yet been served. Rather, the court may take a "pragmatic approach . . . and consider DRL § 230 issues on the merits even though only a summons and not a complaint has been served." (Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book14, Domestic Relations Law § 230, C230:4 at 36; Small v Small, 96 Misc 2d 469; and see Silver v Silver, 57 AD2d 948.)
The courts have construed the residency requirements of Domestic Relations Law § 230 to mean that a party may either be domiciled in the State or have resided in the State for the requisite time period. ( Unanue v Unanue, 141 AD2d 31; Capdevilla v Capdevilla, 149 AD2d 312.) This interpretation recognizes that a party may have more than one residence, but that domicile, once established, is presumed to continue. ( Unanue v Unanue, supra, at 39-40.) To constitute a domicile of choice, there must be both a physical presence in the state and the requisite intention to make the locality one's fixed and permanent home. ( Unanue v Unanue, supra; Senhart v Senhart , 18 AD3d 642 ; and see Wildenstein v Wildenstein, 249 AD2d 12.) The courts will determine a party's domicile based upon "subjective intent," which, in turn, requires an examination of objective facts. ( Unanue v Unanue, supra.) However, a mere intent or desire to reside in New York is not sufficient. ( Esser v Esser, 277 AD2d 926.) In determining a parties' domicile, among the factors to be considered are the time period of New York residence, the length of any absence, the location of the children's schooling, the purchase of, or leasing out of, homes, the parties' places of worship, club memberships, performance of civic duties, and the filing of taxes or registration of automobiles. ( Unanue v Unanue, supra; Bourbon v Bourbon, 259 AD2d 720.) The courts have determined that the legislative intent underlying the durational residency requirements was "to preclude . . . the use of our courts in matrimonial proceedings by spouses with no real ties to New York. . . .for the sole purpose of obtaining matrimonial relief unavailable" in other states or jurisdictions. ( Unanue v Unanue, supra, at 41; and see, Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book14, Domestic Relations Law § 230, C230:1 at 28.)
Where the parties are shown to have many absences from this state, the court will look to see if there is "no other place to which the parties returned so frequently or with such regularity." ( Weslock v Weslock, 280 AD2d 278; Davis v Davis, 144 AD2d 621.) In this case, the place to which the parties returned with frequency and regularity was the marital home in Italy. The court finds that the parties have not resided in New York continuously, but resided here for two separate stays, each less than one year, punctuated by frequent and lengthy returns to Italy. While temporary absences from New York will not negate domicile, it remains that domicile must first be established. ( Unanue v Unanue, supra.) In this case, reviewing the objective facts, it is noted that not only did the parties lease two different apartments in New York, complete with rental furniture, neither party owned property in New York. It is undisputed that all of the family's assets are located in Italy. The defendant filed a U.S. Non-resident Alien Income Tax return showing the family's Italian address, and neither party apparently registered to vote or drive in New York State. Nor does plaintiff make any showing of any civic duties undertaken during her stay in New York.
While plaintiff contends that she and the children attend church in New York, that she currently attends classes, and that she recently re-enrolled the children in New York schools, her mere desire to reside here will not satisfy the durational residency requirements. ( See, Esser v Esser, supra.) Here, as in Esser, recent attempts to meet the criteria set forth in Unanue v Unanue ( supra) will not establish that a party is a domiciliary of New York. Rather, it appears that plaintiff's recent attempts to establish residency were in anticipation of this divorce action itself. While much is made of the issue of the children's schooling, and whether or not the two eldest children were enrolled in a special school to facilitate their return to school in Italy, this factor alone is not controlling. The court finds an overall failure on plaintiff's part to demonstrate that either the continuous one-year period of residency was satisfied or that, prior to the Spring of 2009, she had any intention of making New York "a fixed and permanent home." ( See Senhart v Senhart, supra.) Here, as in Senhart, the evidence is insufficient to show that the matrimonial domicile was ever in New York. Based upon all of the foregoing, the court finds that plaintiff's commencement of a New York action falls into the latter category of cases described in Unanue, where a party seeks only to obtain the benefits of New York matrimonial relief. ( Unanue v Unanue, supra, at 41.)
Assuming arguendo, that plaintiff had met the durational residency requirements of Domestic Relations Law § 230, the court finds that the action must nevertheless be dismissed pursuant to CPLR 327 based on grounds of forum non conveniens. On a motion to dismiss on the ground of forum non conveniens, the plaintiff's choice of forum should generally not be disturbed, and the burden is on the movant to demonstrate the relevant factors that militate against a New York court's acceptance of the litigation. ( Islamic Rep. of Iran v Pahlavi, 62 NY2d 474, 478-479 cert denied 469 US 1108; Stravelle v Land Cargo, Inc. , 39 AD3d 735 , 736.) Among the factors weighed by the court in determining a motion to dismiss based on forum non conveniens are: 1) the burden on the New York courts; 2) the potential hardship to the defendant; 3) the unavailability of an alternative forum; 4) residency of the parties; and 5) that the transaction out of which the cause of action arose occurred primarily in a foreign jurisdiction. ( Islamic Republic of Iran v Pahlavi, supra.) The great advantage of the doctrine of forum non conveniens is its flexibility based upon the facts and circumstances of each case. ( Islamic Republic of Iran v Pahlavi, supra.)No single factor is controlling. ( Turay v Beam Bros. Trucking, Inc , 61 AD3d 964 , 966; Smolik v Turner Constr. Co. , 48 AD3d 452 , 454; Kefalas v Kontogiannis , 44 AD3d 624 , 625.)
Initially, the court clearly sees both the parties and the children as domiciliaries and residents of Italy, and has already determined that the plaintiff cannot sufficiently establish herself as a resident or domiciliary of New York. The location of the operative facts is another important factor to be considered. The court finds that most, if not all, of the witnesses, evidence, marital assets, including a marital house in Vicenza and the Italian-based company, Legor Group, which would be subject to appraisal and equitable distribution, are all situated and located in Italy. The court would encounter both language barriers and certain delays in the appraisal and distribution of the marital assets. ( Catapodis v Onassis, 2 Misc 234.) These facts lend a heavy weight in determining that this case would create an unnecessary burden on this court, as it is the convenience of the court, not that of the litigants, that controls the determination. ( Williams v Seaboard Airline R. Co, 9 AD2d 268.)
Insofar as the parties have been in negotiations with Italian lawyers throughout the Spring of 2009, and an action has since been commenced in Italy, the court finds that a suitable alternative forum is available. ( Nasser v Nasser , 52 AD3d 306 .) The Court finds the Italian judicial system suitable for these parties to litigate the matters at bar. Both parties are Italian citizens, who were born in Italy, married in Italy, are residents of Italy, and who raised their children there. Both parties reap the economic fruits of an Italian-based company. Indeed, a parallel action is pending in Italy, and despite the fact that the Italian action was brought by the defendant subsequent to the instant action, New York courts are not compelled to retain jurisdiction over any case which does not have a substantial nexus to New York. ( Smolik v Turner Constr. Co., supra; Wentzel v Allen Mach., 277 AD2d 446; Silver Lane Advisors v Bellatore, 2009 NY Slip Op. 51514 [Sup. Ct., NY County July 6, 2009].) The "first to file" rule is not to be followed mechanically, particularly when the actions are filed close in time. ( Silver Lane Advisors v Bellatore, supra.) Moreover, the court finds that New York would be burdened with the task of adjudicating this matter all the while at the risk of having the foreign state determine the matter differently. ( Sturman v Singer, 213 AD2d 324; Hart v General Motors Corp., 129 AD2d 179.)
The court also finds that sustaining litigation in this forum would present an undue burden upon the defendant, who has since ceased his temporary residency here and returned to Italy. ( Nasser v Nasser, supra.) Moreover, insofar as plaintiff herself indicates the marital difficulties began in 2000, a substantial amount of the underlying causes of action would necessarily have occurred in Italy, where the relevant witnesses would be located. The fact that the transactions out of which the cause of action arose occurred primarily in a foreign jurisdiction weighs strongly in favor of granting a dismissal on forum non conveniens. ( Silver Lane Advisors v Bellatore, supra.)
Forum non conveniens relief should be granted when it plainly appears that New York is an inconvenient forum and that another is available which will best serve the ends of justice, the convenience of the parties, and the New York court system. ( Silver v Great Am. Ins. Co., 29 NY2d 356, 361.) The issue at hand is best dealt with in the state where both parties to the case are citizens, where most, if not all, assets, witnesses, and substantive elements of the litigation are located, and where a parallel suit has already been filed. Given the action's marginal nexus to New York, the court determines that the action is properly dismissed on grounds of forum non conveniens.
Finally, the court considers the parties' claims concerning proceedings ongoing in Federal court, the Eastern District of New York, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Remedies Act (referred to herein as the Hague Convention action). Although the existence of the Federal court proceedings would not, in and of itself, be grounds to dismiss a New York divorce action in its entirety, the court finds that the defendant is correct in that this court cannot properly address any custody claims in light of the Federal proceedings. The court first finds that movant sought only to stay or dismiss any custody proceedings in this court while the Hague Convention action was pending, and did not seek Hague Convention relief from this court. Rather this court, by defendant's motion, was made "aware" of the Hague Convention action. ( See Barzilay v Barzilay, 536 F3d 844 [8th Cir 2008].) Defendant simply chose to exercise the right to seek relief under the Hague Convention in Federal court while simultaneously pursuing other remedies in this court. ( See Gaudin v Remis, 415 F3d 1028 [9th Cir 2005].) It follows that it is not for this court to undertake the analysis as to whether the children have been "wrongfully removed" from their home state, nor does defendant request this court to undertake that analysis.
Accordingly, it is not necessary for this court to consider the abstention doctrines where, as plaintiff herself recites, the Hague Convention, codified in 42 USCS § 11601, would prohibit a custody determination by this court until after a determination of whether the children were wrongfully removed or retained from the place of habitual residence is made. The court finds controlling the analysis of Yang v Tsui ( 416 F3d 199 [3rd Cir 2005]), that, were this action not already dismissed on other grounds, this court's custody determination would properly be held in abeyance while Hague Convention proceedings were ongoing in the Federal Court. ( Yang v Tsui, supra; see also Barzilay v Barzilay, supra.) Only if a Hague Convention proceeding were ongoing before this court would it be appropriate for the Federal court to abstain. ( Barzilay v Barzilay, supra.) Thus, it follows that insofar as there is no Hague Convention proceeding before this court, the Federal action shall continue unimpeded, and this court, had it not dismissed this action on other grounds, would have held any determination of custody in abeyance.
A copy of this order has been faxed and/or mailed to the parties and/or their respective counsel.