Opinion
DOCKET NO. A-6020-12T2
01-14-2015
RUTH VERONICA KEMUNTO-ANGWENYI, Plaintiff-Respondent, v. ELLIOT MGHENYI, Defendant-Appellant.
Jacobowitz & Defino, P.C., attorneys for appellant (Benjamin M. Hoffman, on the brief). Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Hayden. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM-09-934-12. Jacobowitz & Defino, P.C., attorneys for appellant (Benjamin M. Hoffman, on the brief). Respondent has not filed a brief. PER CURIAM
This appeals involves the first-to-file rule. Defendant Elliot Mghenyi appeals from the trial court's interlocutory order denying his motion to dismiss the New Jersey divorce action of plaintiff Ruth Veronica Kemunto-Angwenyi, in favor of his action for annulment in Kenya. He appeals from subsequent orders denying his motions for reconsideration and for relief from the prior orders. He also appeals from the final judgment of divorce entered by default, after defendant refused to appear for trial. Having reviewed Mghenyi's arguments in light of the record and applicable principles of law, we affirm.
I.
As we note below, each party's pleadings and sworn statements contain significant internal inconsistencies, as well as contradict those of his or her adversary. Nonetheless, we discern the following material facts from the record.
The record includes various pleadings and affidavits filed in Kenya. Although Kemunto-Angwenyi contested the authenticity of some of the documents, we assume their admissibility for this decision.
The parties were married in August 2003 in Nairobi, Kenya. They were both Kenyan citizens. There have been no children of the marriage. Prior to the marriage, Mghenyi resided in the United States. He was a student at Michigan State University. Soon after the marriage, both parties moved to the United States. Mghenyi had a visa reflecting his status as a student. Kemunto-Angwenyi had one reflecting her status as Mghenyi's spouse.
Kemunto-Angwenyi variously asserted the marriage occurred on August 16, August 3 and August 1, 2003. Mghenyi claimed in most of his statements that the marriage occurred on August 1, 2003, but in a New Jersey certification he stated the parties were married on August 16, 2003, and he also admitted the allegation in Kemunto-Angwenyi's complaint that the date was August 16, 2003.
Mghenyi initially returned to Michigan to continue his studies. The parties dispute whether they cohabited in the United States. Mghenyi consistently denied that Kemunto-Angwenyi ever lived with him in the United States. At one point in the litigation here, he presented various Michigan leases to prove he lived alone in Michigan. After completing all but his dissertation in Michigan, he moved to Maryland and began work at the World Bank in Washington, D.C.
In his Kenyan pleadings, Mghenyi alleged he lived in Washington, D.C.
He asserted that in 2004, Kemunto-Angwenyi was living in New Jersey with her mother. He met Kemunto-Angwenyi there on at least two occasions, when visiting other friends. He asserted they discussed dissolving their marriage, but Kemunto-Angwenyi was concerned about the impact on her immigration status. Mghenyi claimed that Kemunto-Angwenyi only married him to secure entry to the United States.
Kemunto-Angwenyi asserted in a New Jersey certification that she moved to the United States in early September 2003, a month after the marriage. She testified at the default hearing that she lived in New Jersey for all but a few months out of her ten years in the United States. However, she also stated, both at the default hearing and in her New Jersey pleadings, that she and Mghenyi separated in March 2007 — implying that she and Mghenyi lived together for almost four years. In her statements filed in Kenya, she variously claimed she lived with Mghenyi in Michigan for four years and two years. But, she also filed a statement that she lived with him for only three months. Kemunto-Angwenyi claimed she requested Mghenyi seek a divorce in Kenya several times during their separation.
Although sworn, we note that Kemunto-Angwenyi's signature on the Kenyan statements appears markedly different from her signature on the New Jersey statements.
Mghenyi filed a divorce petition in Kenya in May 2011. In September 2011, Kemunto-Angwenyi filed a divorce action in Hudson County. In December 2011, Mghenyi filed a separate action for annulment in Kenya.
It is unclear when service was actually accomplished in connection with the three actions. Mghenyi claimed that in May 2011, his attorney served his Kenyan divorce petition on Kemunto-Angwenyi by mail to her former Kenyan address — where she had not resided in almost eight years. He provided a certification of mailing, which did not reflect the mailing's contents. Kemunto-Angwenyi alleged service of the Kenyan petition was effected on October 6, 2011, and her Kenyan attorney entered an appearance in that divorce case in November 2011. Kemunto-Angwenyi did not provide proof of actual service of her New Jersey complaint. She alleged Mghenyi acknowledged service, but no signed acknowledgement of service was filed. Mghenyi asserted he was served by mail. He filed an answer to the complaint on December 28, 2011. As for the Kenyan annulment action, Kemunto-Angwenyi filed an answer and cross-petition on February 15, 2012.
Mghenyi's allegations in his two pleadings, and the relief sought, differ significantly. Mghenyi's two petitions also bear different docket numbers: "Divorce Cause No. 83 of 2011" and "Nullification Cause No. 193 of 2011" - each in the High Court at Nairobi. Although Mghenyi maintained that the annulment claims were amendments of his original pleading, he provided no supporting documentation.
In the divorce petition, Mghenyi indicated that the marriage was consummated, and the parties cohabited until 2004. He alleged that after the marriage on August 1, 2003, he and Kemunto-Angwenyi "live[d] as husband and wife in Nairobi West in Nairobi, and in Wundanyi in Taita Taveta in Coast Province, in the matrimonial home till their marriage irrevocably broke down." He asserted that Kemunto-Angwenyi "constructively deserted [Mghenyi] in 2004 by refusing to join him in the United States of America." He stated he and Kemunto-Angwenyi "have never consorted or lived with each other since 2004." He requested an order dissolving the marriage.
In the annulment action, Mghenyi denied that the marriage was physically consummated or that he ever cohabited with his wife. He alleged, in contrast to the divorce petition, that "within hours after the celebration of the marriage [Kemunto-Angwenyi] deserted the petitioner without any justifiable cause." He alleged they "never consorted or lived with each other since the desertion . . . in 2003" and "the marriage . . . has never been consummated owing to the willful refusal of [Kemunto-Angwenyi] to consummate the marriage." Mghenyi asserted that the divorce action "has been withdrawn by [Mghenyi] before it was prosecuted to conclusion." He sought an order that the marriage be nullified.
Mghenyi alleged before the trial court here that the divorce action nonetheless remained pending; but, the only support for that assertion was an admission in Kemunto-Angwenyi's answering affidavit to the nullification action, in which she stated her attorneys informed her the divorce petition was still pending and not withdrawn.
In certifications filed in New Jersey, Mghenyi alleged not only that the marriage was not physically consummated, but that it was procured by fraud. He alleged that Kemunto-Angwenyi married him solely to gain entry to the United States.
In Kemunto-Angwenyi's New Jersey divorce complaint, she alleged she had lived continuously in New Jersey for one year; she and Mghenyi were lawfully married in Kenya in August 2003 and separated March 16, 2007, after which they lived separate and apart without cohabitation. She alleged irreconcilable differences. She alleged there were no previous proceedings seeking dissolution of the marriage. She sought a judgment of divorce. In an amended complaint dated December 8, 2011, she deleted admittedly erroneous allegations that her child, born in 1999, was a product of her relationship with Mghenyi.
On December 28, 2011, Mghenyi answered Kemunto-Angwenyi's initial complaint, and sought dismissal without prejudice because there was "presently a prior proceeding filed in this matter in the Republic of Kenya." He referenced the annulment action, but incongruously referred to it by the divorce petition docket number. "[T]here is presently an annulment proceeding pending between the parties in the Republic of Kenya in the High Court of Nairobi, Family Division under Divorce Case No. 83 of 2011." Relying on the allegations in his nullification petition, Mghenyi also denied the marriage was ever consummated or that the parties ever cohabited. In February 2012, Mghenyi filed a similar answer to Kemunto-Angwenyi's amended complaint.
Meanwhile, in February 2012, Kemunto-Angwenyi's Kenyan attorneys filed her answer to the nullification petition in Nairobi. She sought its dismissal and cross-petitioned for an order dissolving the marriage. She alleged that the annulment action was brought in bad faith, solely to harass and burden her, and that the action for annulment was untimely under Kenyan law. She alleged the parties cohabited in Michigan for over two years, and the marriage irretrievably broke down.
In his motion to dismiss here, filed after his answer, Mghenyi invoked the first-to-file rule. He alleged that he filed his Kenyan action in May 2011, before Kemunto-Angwenyi filed her New Jersey complaint. He alleged the annulment action was a mere amendment to his initial Kenyan action. Kemunto-Angwenyi opposed the motion.
The court denied the motion and recounted many of the facts set forth above. The judge acknowledged the general rule of comity that the court that first acquires jurisdiction over a matter has precedence, but he noted that the doctrine is not inflexible and may yield to special equities. The court held that the issue of the court's jurisdiction would be determined in conjunction with its adjudication of the divorce complaint. The court stated that Mghenyi could seek to amend his answer to add a counterclaim for annulment.
However, the court did not discuss the contradictions between Mghenyi's divorce and nullification petitions. Mghenyi at that point had not provided the court with a copy of the divorce petition; instead, he provided proof of filing of the divorce petition, and a copy of his nullification petition.
Mghenyi sought reconsideration. He alleged that the first-to-file rule should be applied, and claimed that Kemunto-Angwenyi had made numerous false statements to the court. After several adjournments at Mghenyi's request, the motion came before the court in October 2012. The court denied the motion, finding that there were disputed issues of fact that prevented the court from reaching a final decision as to whether the New Jersey action should be dismissed or stayed in favor of the Kenyan action. For the sake of judicial economy, the court ordered that the testimony and evidence regarding the applicability of the first-to-file rule would be received at the same proceeding as the trial on the divorce complaint. The court reiterated that Mghenyi could seek to add a counterclaim for annulment, to preserve that claim should the court not stay its hand.
Mghenyi discharged his lawyer, and filed two amended answers to the complaint. He alleged for the first time that the court lacked jurisdiction on the ground that Kemunto-Angwenyi was not a bona fide resident of New Jersey, as she lacked a New Jersey driver's license and was living in the United States in violation of federal immigration law. He asserted in his amended answer that the marriage should be nullified by a Kenyan court, based on Kemunto-Angwenyi's alleged fraud in entering the marriage, and the lack of consummation.
In February 2013, he filed a motion seeking relief from the April 5 and October 11, 2012, orders, which the court denied on March 20, 2013. On June 26, 2013, Mghenyi filed another motion for relief from the April 5, and October 11, 2012, orders.
In the meantime, the case was assigned to a different judge for trial, which was scheduled for July 2, 2013. Mghenyi failed to appear. The trial judge confirmed that Kemunto-Angwenyi sought only dissolution of the marriage, and waived any claims of alimony or equitable distribution. After the trial judge elicited the basic elements of the cause of action, and established Kemunto-Angwenyi's residence here for over nine years, she granted her a final judgment of divorce. This appeal followed.
The court later denied Mghenyi's second motion for relief from the two orders as untimely.
Mghenyi raises the following two points for our consideration:
I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S REQUEST TO DISMISS THE PLAINTIFF'S AMENDED COMPLAINT AND THEN [PROCEEDED] TO ENTER A JUDGMENT OF DIVORCE FOR THE PLAINTIFF WHEN IN ACCORDANCE WITH THE FIRST-FILE DOCTRINE THE DEFENDANT'S COMPLAINT FOR DIVORCE WAS FILED IN THE REPUBLIC OF KENYA PRIOR TO THE PLAINTIFF'S COMPLAINT FOR DIVORCE WHICH WAS FILED IN THE STATE OF NEW JERSEY, THE PLAINTIFF ACCEPTED AND WAS [PARTICIPATING] IN THE LITIGATION IN THE REPUBLIC OF KENYA AND HAD ACKNOWLEDGED THAT THE REPUBLIC OF KENYA HAD JURISDICTION AND THERE WERE NO SPECIAL EQUITIES WHICH WOULD RESULT IN THE STATE OF NEW JERSEY TAKING JURISDICTION OVER FROM KENYA.
II. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO DISMISS THE PLAINTIFF'S AMENDED COMPLAINT FOR DIVORCE AND ENTERING A JUDGMENT OF DIVORCE IN FAVOR OF THE PLAINTIFF AND SAME SHOULD BE VACATED UNDER R. 4:50-1 (C) AND (F) AS SAME WAS ENTERED BASED UPON FRAUDULENT AND MISREPRESENTATIONS FROM THE PLAINTIFF AS IT RELATES TO THE ISSUES OF JURISDICTION, PRIOR PLEADINGS, AND A PRIOR MATTER BEING FILED IN THE REPUBLIC OF KENYA AND SAME RESULTED IN A JUDGMENT OF DIVORCE BEING ENTERED WHICH WAS INEQUITABLE, UNFAIR AND UNCONSCIONABLE TO THE DEFENDANT.
II.
Mghenyi argues the court erred in refusing to dismiss Kemunto-Angwenyi's divorce action in favor of his Kenyan annulment action. He does not directly address his failure to appear at the trial. However, he contends that the court lacked jurisdiction to proceed, based on the first-to-file doctrine. We disagree.
The first-to-file rule is a principle of comity that is well-established in our nation's jurisprudence. See Riggs v. Johnson Cnty., 73 U.S. (6 Wall.) 166, 196, 18 L.Ed. 768, 776 (1868) (stating that "the court that first obtains possession of the controversy, or of the property in dispute, must be allowed to dispose of it without interference or interruption from the co-ordinate court."); Smith v. M'Iver, 22 U.S. (9 Wheat) 532, 535, 6 L.Ed. 152, 154 (1824) ("In all cases of concurrent jurisdiction, the court which first has possession of the subject must decide it."). The rule of comity encompasses deference to proceedings in the court of a foreign nation. See Exxon Research & Eng'g Co. v. Indus. Risk Insurers, 341 N.J. Super. 489, 503 (App. Div. 2001) (stating that "[c]omity is the recognition that one nation gives to the 'legislative, executive or judicial acts of another nation'") (quoting Hilton v. Guyot, 159 U.S. 113, 164, 16 S. Ct. 139, 143, 40 L.Ed. 95, 108 (1895).
"Comity, in a legal sense, is neither a matter of absolute obligation on the one hand nor of mere courtesy and good will upon the other." Fantony v. Fantony, 21 N.J. 525, 533 (1956). In other words, the applicability of the first-to-file rule does not divest the second court of the power to act. See Sensient Colors Inc. v. Allstate Insurance Co., 193 N.J. 373, 386-87 (2008) ("The question is not whether a state court has the power to exercise jurisdiction over a case filed within its jurisdiction, but whether the court should restrain itself and not exercise that power.").
Our Supreme Court outlined the contours of the first-to-file rule in Sensient Colors, supra. To obtain a dismissal or stay of a New Jersey case for comity reasons, the moving party bears the burden to establish two facts: (1) there is an earlier-filed action in another court; and (2) that prior action "'involve[s] substantially the same parties, the same claims, and the same legal issues'" as the second-filed action. Id. at 391 (quoting Am. Home Prods. Corp. v. Adriatic Ins. Co., 286 N.J. Super. 24, 37 (App. Div. 1995)). If the party seeking the stay or dismissal satisfies these two prerequisites, then the party advocating the exercise of jurisdiction in the second-filed action bears the burden to "show that it will not have the opportunity for adequate relief in the first-filed jurisdiction." Id. at 392.
Although the parties disputed when and how service was accomplished in the two jurisdictions, the first-to-file rule is triggered by the filing, not the service, of a claim. See, e.g., Barber-Greene Co. v. Blaw-Knox Co., 239 F.2d 774, 778 (6th Cir. 1957); Daniel R. Coquillete, et al., 1-3 Moore's Federal Practice - Civil § 3.02[9] (2014).
"The inability of the first-filed jurisdiction to provide adequate relief is akin to a special equity." Ibid. "Special equities" provide an exception to the first-to-file rule, and arise when proceeding in the first forum "would cause great hardship and inconvenience" to the plaintiff in the second-filed action, while proceeding in the second forum would inflict "no unfairness to the opposing party." Id. at 389 (internal quotation marks omitted). Without providing a comprehensive list of examples of special equities, we note that special equities include forum non conveniens factors. Ibid.
A trial court's decision to apply the first-to-file rule requires "a fact-specific inquiry that weighs considerations of fairness and comity." Id. at 389-90. The decision generally is vested in the trial court's discretion. Id. at 390. Therefore, we review the trial court's decision for an abuse of discretion.
Applying these principles, we discern no error in the trial court's interlocutory orders to deny Mghenyi's motion to dismiss and for reconsideration based on the first-to-file rule; and the court's decision to proceed with the default hearing in Mghenyi's absence.
First, the trial court did not initially decide whether to refrain from exercising jurisdiction. Rather, consistent with the Supreme Court's observation that the first-to-file issue requires a "fact-specific inquiry," the trial court decided that the parties presented factual issues which required resolution at a plenary hearing. The court identified issues pertaining to the authenticity of Kenyan documents, the competing allegations regarding the parties' cohabitation, and the claims regarding the immigration status of the parties. The court intended to conduct that hearing in conjunction with the trial of the divorce claim, which presumably would be brief, given that both parties claimed that the marriage broke down. Mghenyi failed to appear at the trial. In doing so, he defaulted not only on his defense of Kemunto-Angwenyi's divorce claim; he also defaulted on his assertion of the first-to-file rule, as to which he bore the initial burden.
Although the annulment claim may have been more involved, Mghenyi never formally amended his answer to include that counterclaim.
Second, we are unpersuaded that the record before us compelled application of the first-to-file rule. Simply put, the record does not support a finding that Mghenyi satisfied his initial burden to show that he filed the first action. Rather, he filed his nullification petition after Kemunto-Angwenyi filed her New Jersey divorce complaint.
We reject the notion that the nullification petition should be deemed filed as of the filing date of the Kenyan divorce petition, which concededly preceded the New Jersey action. Cf. Young v. Schering Corp., 275 N.J. Super. 221, 231 (App. Div. 1994) (holding that relation back under Rule 4:9-3 did not apply where "the amended complaint plead[ed] entirely new facts and theories from those pleaded in the original complaint"), aff'd, 141 N.J. 16 (1995). The allegations in the nullification petition were irreconcilable with those in the divorce petition. In the former, Mghenyi alleged the marriage was never consummated and he never cohabited with Kemunto-Angwenyi before returning to the United States in 2003. In the divorce petition, he alleged he cohabited with Kemunto-Angwenyi "as husband and wife" in two separate places in Kenya, before returning to the United States in 2004. Moreover, the form of relief sought in the two petitions differed.
We do not suggest that principles governing the relation back rule should be uniformly applied to determine applicability of the first-to-file rule. However, the principles are nonetheless instructive. We recognize that some federal courts have taken the position that satisfying prerequisites of the relation back rule is not necessary to apply the first-to-file rule to an amended complaint, holding that the court that first acquires jurisdiction of the subject matter of dispute should retain jurisdiction, "regardless of the addition of a new party." Schering Corp. v. Amgen Inc., 969 F. Supp. 258, 267 (D.Del. 1997); see also Shire U.S., Inc. v. Johnson Mathey, Inc. 543 F. Supp. 2d 404, 408-09 (E.D.Pa. 2008).
We also do not view the nullification petition as an amendment to the divorce petition. There is no evidence that the second Kenyan petition amended the first. Rather, Mghenyi asserted in the nullification petition that the divorce petition would be withdrawn. It is also ultimately of no significance that Kemunto-Angwenyi repeated her attorney's hearsay statement that the divorce petition remained pending when she answered the nullification petition. Whether or not it remained pending, Mghenyi made clear his intention to treat it as a dead letter, choosing instead to seek the annulment of the marriage based on contradictory allegations of fact.
Just as the allegations and claims in Mghenyi's nullification petition were at odds with those in his divorce petition, they were at odds with those in Kemunto-Angwenyi's divorce complaint. In short, the two actions did not involve the "same claims, and the same legal issues," as required under the second prong of the test under Sensient Colors, supra, 193 N.J. at 391 (internal quotation marks and citation omitted). For this reason as well, Mghenyi failed to meet his initial burden.
Moreover, "special equities" favored retention of jurisdiction here, primarily on forum non conveniens grounds. Kemunto-Angwenyi had apparently resided in the United States since 2003. Mghenyi lived here as well, although he travelled back to Kenya. It would be burdensome for Kemunto-Angwenyi to travel back to Kenya for trial, even putting aside its potential negative impact on her immigration status. Also, to the extent cohabitation became an issue in an annulment counterclaim, evidence and witnesses pertaining to cohabitation in Michigan were available here.
We recognize the obvious undercurrent in this litigation involving the immigration consequences of the parties' choice of forum. However, we ultimately need not resolve whether Mghenyi's commencement of an annulment action in Kenya was intended to negatively affect Kemunto-Angwenyi's immigration status here.
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Furthermore, there is some indication the nullification petition was untimely, as Kemunto-Angwenyi's Kenyan counsel asserted. Consequently, there was a potential basis to conclude that the petition was brought solely to harass and burden her. Although Mghenyi has not briefed Kenyan law, it appears that a court in Kenya "shall only grant a decree of annulment if the petition is made within one year of the celebration of the marriage." The Marriage Act, (2014) Cap. 73 § 2 (Kenya), available at http://www.kenyalaw.org.
Mghenyi's remaining points lack sufficient merit to warrant extended discussion. See R. 2:11-3(e)(1)(E). Kemunto-Angwenyi's immigration status did not disable her from establishing bona fide residence in New Jersey under N.J.S.A. 2A:34-8, -10. See Caballero v. Martinez, 186 N.J. 548, 560 (2006) ("[A]n undocumented alien's intent to remain in New Jersey can satisfy the intent required by the UCJF to qualify as a 'resident.'"); A.Z. ex rel B.Z. v. Higher Educ. Student Assistance Auth., 427 N.J. Super. 389, 402 (App. Div. 2012) ("[A] person's federal immigration status does not necessarily bar a person from becoming a domiciliary of a state."); Das v. Das, 254 N.J. Super. 194, 200 (Ch. Div. 1992) (denying husband's motion to dismiss wife's divorce action based on wife's illegal status, stating, "Enforcement of immigration laws is the function of the Federal government. The determination of a party's domicile, on the other hand, must be resolved in accordance with state decisional law."). Finally, we need not reach Mghenyi's claim that that final judgment of divorce should be set aside pursuant to Rule 4:50-1(c) and 1(f). Mghenyi did not present that argument to the trial court. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (stating we "will decline to consider questions or issues not properly presented" below).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION