Opinion
26821/08.
August 17, 2010.
Philip Kamaras, Esq., Attorney for Plaintiff, Brooklyn, New York.
Saul Edelstein, Esq., The Edelsteins, Faegenburg Brown, Attorney for Defendant, New York, New York.
Upon the foregoing papers, defendant-husband Bruce Weiss (defendant) moves for an order: (1) pursuant to CPLR 3211 (a) (2), dismissing the complaint of plaintiff-wife Elizabeth Benson Weiss (plaintiff), on the basis of lack of jurisdiction; or (2) in the alternative, pursuant to CPLR 510 (3), changing the venue of this action to the District Court, Family Division, Clark County, Nevada.
Facts and Procedural Background
The parties were married in New York, New York, on April 12, 1986. Plaintiff and defendant resided in Brooklyn, New York throughout the marriage, although both parties admit that they physically separated several years ago. One child, Jessica, was born to the marriage, in 1991.
As relevant here, defendant commenced an action for divorce in the District Court, Family Division, of Clarke County, Nevada on or about May 20, 2008. In his verified complaint in the Nevada action, defendant allegedly stated that he had been a bona fide domiciliary of Nevada for more than six weeks prior to the commencement of the action. On or about June 25, 2008, plaintiff found, taped to the door of her Brooklyn, New York residence, copies of defendant's Nevada summons and complaint. It is undisputed that plaintiff did not answer the complaint, nor otherwise make an appearance in the Nevada action. On or about August 29, 2008, plaintiff received, by mail, a final decree of divorce entered by the District Court, Family Division, of Clark County, Nevada on July 31, 2008.
In this regard, defendant submits the following Nevada statutory law:
Pursuant to NRS § 125.010, "Nevada courts have jurisdiction over a cause of action for divorce for any of three causes:
1. Insanity existing for two years propr to commencement of the action.
2. Separation for one year or longer without cohabitation.
3. Incompatibility."
Moreover, under NRS § 125.020 (1), "a particular district court for a county has jurisdiction over a divorce case if the complaint is brought in the county:
1. In which the cause of action accrued;
2. Where the defendant resides or can be found;
3. Where the plaintiff resides;
4. Where the parties last cohabitated; or
5. Where the plaintiff has resided for at least six weeks prior to the filing of the complaint."
Defendant submits the purported Nevada decree of divorce, which states, among other things, that:
Plaintiff, "having been personally served, and proof having been filed with this Court, and [plaintiff] having failed to answer the Complaint, or otherwise plead within the time allowed by law; the Default of plaintiff] was duly and regularly entered on July 31, 2008; and it appearing to the Court that the law pertaining to service of process on [plaintiff] has been fully complied with herein, and for good cause, the Court hereby finds:
That the Court has only in rem jurisdiction over [defendant] and the marriage; that this Court does not have personal jurisdiction over [plaintiff]; the parties' minor child, or the parties' property or debts; that all other issues must be addressed in New York; that [defendant] is entitled to an absolute Decree of Divorce from [plaintiff] on the grounds as set forth in [defendant's] Complaint for divorce on file herein . . ."
Thereafter, on or about September 23, 2008, plaintiff commenced an action for declaratory judgment in this court, seeking a declaration that the Nevada decree of divorce is invalid, and that the parties are still husband and wife. Among other things, plaintiff's verified complaint alleges that defendant was not a bona fide domiciliary of Nevada, and that he did not meet the requisite residential requirements for a divorce in Nevada. Specifically, plaintiff alleges that defendant did not fulfill a minimum residency requirement of six consecutive weeks in Nevada prior to his filing a complaint for divorce. Plaintiff further contends that, during the period when defendant allegedly was "corporeally and physically" present in Nevada, he was actually present in New York — visiting his daughter, making court appearances, cohabiting with his long-time girlfriend, working at his Tasti D'Lite franchise, visiting his parents, and going to local doctors. Plaintiff further argues that during the period defendant was allegedly present in Nevada, he did not surrender his New York State driver's license, cancel his automobile registration, or terminate his automobile insurance. Moreover, plaintiff contends that defendant was not employed in Nevada, he did not open a bank account there, and he did not change the billing address of any of his credit cards from his New York address. According to plaintiff, there exists a real controversy of a justiciable nature between the parties as to whether the purported Nevada divorce decree obtained by defendant is valid, and whether the parties are still husband and wife. According to plaintiff, she has a valid and continuing interest in maintaining her marriage to defendant, including an interest in various assets that he may dispose of or transfer, on the basis of the Nevada divorce decree (e.g., he might change the beneficiaries of any of his ERISA retirement plans).
Issue was joined in this action by defendant's service of a verified answer on or about October 16, 2008. In his answer, defendant denies the substantive allegations listed in plaintiff's complaint, and he asserts an affirmative defense alleging that this court does not have jurisdiction to entertain plaintiff's action for declaratory judgment. Defendant further alleges that the instant "collateral attack" on the Nevada divorce decree should instead be filed and maintained in the State of Nevada.
The Parties' Contentions
In his motion, defendant argues that the Nevada decree of divorce is conclusive and that this court has no leeway to disregard, qualify, or depart from that court's order. According to defendant, a decree of divorce which is granted within the United States, by a court having jurisdiction to do so, is entitled to Full Faith and Credit under the United States Constitution in every court. Defendant also notes that an attack on the jurisdiction of a foreign decree is not permitted in New York unless it is permitted in the rendering state (i.e. Nevada). Further, defendant argues that the burden of showing the availability of the remedy rests upon the party seeking to make that attack (i.e., plaintiff). According to defendant, plaintiff has failed to assert or prove such authority.
In addition, defendant also contends that plaintiff has failed to properly allege or prove any fraud that would support a collateral attack on the Nevada court's jurisdiction. According to defendant, perjury and fraud as to domicile are usually not the basis for vacating or setting aside a final judgment, nor for making an attack on the rendering court, especially if there are no intervening rights of a third party involved (i.e., subsequent spouses). Defendant argues that, in the instant case, there has been no prejudice, there are no third parties, and there are no allegations of a lack of due process, since plaintiff had notice and an opportunity to be heard in the Nevada court.
Defendant also notes that plaintiff was served with process in New York, giving the Nevada court in rem jurisdiction. According to defendant, plaintiff could have hired counsel in New York or Nevada in order to make a special appearance to contest the residency jurisdiction in the Nevada court. However, rather than respond to the Nevada summons and complaint, defendant avers that plaintiff sat on her rights and did nothing, and should be estopped from making the instant belated application for relief.
Finally, defendant asserts that any factual questions relating to jurisdiction should be heard in Nevada, rather than New York. Defendant points out that the Nevada decree of divorce stated that proof had been filed sustaining the Nevada court's in rem jurisdiction. With respect to the evidence presented to the Nevada court, defendant avers that he had the opportunity to submit proof that he registered to vote in Nevada, obtained a Nevada drivers license, and had a lease for an apartment in Nevada. Among other things, defendant alleges that he received correspondence in Nevada, had Nevada cell phone and land-line telephone numbers, and resided in Nevada for six weeks. Defendant further argues that plaintiff has suffered no prejudice as a result of the Nevada divorce decree because she may still proceed in this court to obtain maintenance and/or distribution of marital property following the Nevada judgment of divorce. According to defendant, granting declaratory judgment to plaintiff under the circumstances would serve no useful purpose and would only preserve an admittedly "dead marriage."
In opposition, plaintiff primarily argues that defendant was not domiciled in Nevada and, therefore, that he perpetrated a fraud on the Nevada court in order to obtain a divorce there. Plaintiff notes that, if the court finds in her favor, the issue of defendant's actual residence at the time of the Nevada divorce becomes an issue of fact for determination by a trier of fact. In this regard, plaintiff avers that, although a foreign divorce decree is ordinarily entitled to the full faith and credit given to the judgments of a foreign state under Article IV of the Constitution of the United States, a foreign divorce that is obtained by fraud, including fraudulently establishing residence, may be challenged in New York, and is subject to collateral attack. Plaintiff further notes that, contrary to defendant's claims, fraud in the procurement is not an exception to the definition of fraud, and such fraud could vitiate the court's jurisdictional foundation. Plaintiff maintains that her attack on jurisdiction, being made in New York, is proper. In addition, plaintiff maintains that her action for declaratory judgment was appropriately commenced pursuant to DRL § 236 (B)(2)(a).]
DRL § 236 (B)(2)(a) states, in relevant part, that:
"2. Matrimonial actions. A. Except as provided in subdivision five of this part, the provisions of this part shall be applicable to actions for an annulment or dissolution of a marriage, for a divorce, for a separation, for a declaration of the nullity of a void marriage, for a declaration of the validity or nullity of a foreign judgment of divorce . . ."
Plaintiff also cites to Vaile v Vaile ( 118 Nev 262) to show that Nevada courts have considered fraud in the purported establishment of residence as a valid means of overturning a divorce decree, thereby making it subject to attack in that state. According to plaintiff, since she has established that her action for declaratory judgment, based upon defendant fraudulently obtaining a divorce in Nevada, is proper, the next step is for the court to conduct a hearing and make a finding of fact as to whether or not defendant had a legal domicile in Nevada. Plaintiff also concedes that the burden at a hearing of fact to demonstrate such fraud will rest upon her.
In reply, defendant argues that "the burden of attacking jurisdiction in the foreign state rests upon proof and law as to whether the rendering state permits the same, especially on extrinsic fraud." Defendant asserts that a collateral attack may not be maintained unless it has been established by statute or caselaw that the law of the sister state permits such an attack. According to defendant, plaintiff fails to cite any authority regarding the appropriateness of the instant collateral attack. Defendant also contends that he could have submitted, as evidence on the instant motion, several documents demonstrating the factual prerequisite for Nevada's residency requirement. However, defendant states that he chose not to submit any such documents, since the present issue before the court involves a question of law, rather than a question of fact. Defendant also argues that he cannot introduce the aforementioned documents into evidence without laying the proper foundation, which he could do in Nevada, by calling live witnesses, including his landlords and neighbors, as well as voter registration personnel. Finally, defendant attempts to distinguish the Vaile case cited by plaintiff, by stating that, in that case, the court found that a partial reversal was in order because the court had no in personam jurisdiction over the children, but concluded that it nonetheless had in remjurisdiction over the marriage and, therefore, upheld that portion of the divorce decree.
Defendant lists the following documents: "Voter Registration Card; Driver's License; Lease in Reno, Nevada; Car Rental bills; Telephone bills; Affidavit from landlords; incorporation of Business Papers; Affidavits from neighbors; Affidavits from the Maitre D of local restaurants."
Defendant's Request for Dismissal of the Complaint
The Law
Turning to that branch of defendant's motion which seeks dismissal of plaintiff's complaint, on the ground of lack of jurisdiction, CPLR 3211 states, in relevant part, that:
"(a) Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that: . . .
2. the court has not jurisdiction of the subject matter of the cause of action; . . ."
As a general principle, "[t]he full faith and credit doctrine requires recognition of [a] foreign judgment as proof of the prior-out-of-State litigation and gives it res judicata effect, thus avoiding relitigation of issues in one State which have already been decided in another' (citations omitted) ( Matter of Farmland Dairies v Barber, 65 NY2d 51, 55; see also US Const, art IV, § 1)" ( Ionescu v Brancoveanu, 246 AD2d 414, 416.
"Under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter. The rule applies not only to claims actually litigated but also to claims that could have been raised in the prior litigation. The rationale underlying this principle is that a party who has been given a full and fair opportunity to litigate a claim should not be allowed to do so again ( see O'Connell v Corcoran , 1 NY3d 179, 184-185; Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485)."
( In re Hunter, 4 NY3d 260).
Hence, it is beyond dispute that "[t]he constitutional requirement of full faith and credit precludes any inquiry into the merits of the judgment, the logic or consistency of the decision underlying it or the validity of the legal principles on which it is based" ( Cadle Co. v Tri-Angle Assocs. , 18 AD3d 100). In other words, "inquiry into the merits of the underlying dispute is foreclosed; the facts have bearing only in the limited context of our jurisdictional review" ( Fiore v Oakwood Plaza Shopping Ctr., 78 NY2d 572, 577, cert denied 506 US 823, citing Parker v Hoofer, 2 NY2d 612, 616-617, cert denied 355 US 833; accord Mortgage Money Unlimited v Schaffer , 1 AD3d 773, 774 [as a matter of full faith and credit, the court's review of the foreign judgment at issue was limited to whether the rendering court had jurisdiction]; JDC Fin. Co. I v Patton, 284 AD2d 164, 166 [although a collateral attack on the merits of a judgment rendered by a court of a sister state was precluded, a party aggrieved by the judgment could challenge the basis of the judgment court's personal jurisdiction]; All Terrain Props. v Hoy, 265 AD2d 87, 91 [a judgment rendered by a court of a sister state is accorded the same credit, validity, and effect in every other court in the United States which it had in the state where it was pronounced, so that while inquiry into the underlying merits is precluded, the court will ascertain whether the foreign court had jurisdiction to enter the judgment]).
As is also relevant herein, it is equally well settled that full faith and credit applies to judgments obtained on default:
"Because there is a full faith and credit clause, defendant may not a second time challenge the validity of plaintiff's right which has ripened into a judgment ( Magnolia Petroleum Co. v Hunt, 320 US 430), which is to say that a judgment of a court having jurisdiction of the parties and of the subject matter operates as res judicata in the absence of fraud or collusion, even if obtained upon default ( Riehle v Margolies, 279 US 218, 225)."
( Parker, 2 NY2d at 616; see also Riehle v Margolies, 279 US 218, 225 [a judgment of a court having jurisdiction of the parties and of the subject matter operates as res judicata in the absence of fraud or collusion, even if obtained upon default]; see generally Cook v Cook, 260 AD2d 160, 160-161 [in an action by a former husband against a former wife seeking equitable distribution with respect to the alleged former marital residence, the court properly granted the wife's motion to dismiss the action on the ground of res judicata based on a prior default judgment of divorce and denied the former husband's motion pursuant to CPLR 5015 (a) (1) to vacate the default]).
It must also be recognized that the preclusive effect of a judgment is determined by the law of the jurisdiction which rendered it ( see Ionescu, 246 AD2d at 417; see generally Goldsmith v Goldsmith, 25 AD2d 515, 516, affd 9 NY2d 710, remittitur amended 19 NY2d 939, cert denied 389 US 831 [where a judgment is not subject to collateral attack in the rendering State, the decree is entitled to full faith and credit in the courts of this state and it may not be attacked here]; Elrick v Elrick, 20 AD2d 879 [the court correctly recognized the rule that the prior divorce decree was not subject to collateral attack in the instant action if the law of the rendering jurisdiction, the Virgin Islands, did not permit such collateral attack]). In this regard, the burden of proof is "upon defendant to show that the collateral attack which he seeks to make here on the foreign judgment, which on general principles is entitled to full faith and credit, is admissible by the law of [the jurisdiction issuing the subject judgment]" ( Klarish v Klarish, 19 AD2d 170, 172, affd 14 NY2d 662; accord De Luca v De Luca, 284 App Div 987, 987-988 [although a party may seek to impeach the judgment of a sister state by evidence sufficient to establish that the granting court had no jurisdiction because of respondent's lack of domicile, the burden is upon the party seeking to challenge the judgment]).
Furthermore, "[t]he power of any court to grant a divorce rests ultimately on jurisdiction of the subject matter of the action. In turn, that depends on the domicile, in the state granting the decree, of at least one of the parties; mere appearance without domicile does not confer jurisdiction" ( Senor v Senor, 272 AD 306, 316). A foreign divorce judgment in an action in which both parties were subject to the personal jurisdiction of the court is entitled to full faith and credit, even if the judgment was obtained by virtue of substituted service in an action in which the nonresident defendant did not appear, as long as the form and nature of the substituted service meet the requirements of due process and it is shown that the plaintiff was actually domiciled in the state granting the divorce ( see generally Kulaka v Fire Dept. Article I Pension Fund, 145 AD2d 538).
To the contrary, New York courts have held that "collateral attacks on foreign divorce decrees, by persons who had appeared in the actions in the foreign states, or who were served with process in the foreign states," are not permissible ( Rosenbluth v Rosenbluth, 34 Misc 2d 290, 292 [1962][emphasis added]).
However, a decree of divorce, entered by a court which does not have jurisdiction over the marital res, because neither party is a domiciliary of the state, is not valid. Such a decree is not entitled to full faith and credit and is, therefore, subject to collateral attack in another state ( see Williams v State of North Carolina, 317 US 287; see also e. g. Ammermuller v Ammermuller, 181 Misc 98, 104[the trial court "may inquire if the jurisdictional requirements were present or lacking in order to determine whether the judgment of divorce of the Nevada District Court is entitled to full faith and credit and should be binding here, and [this court] may decline to give such judgment recognition if it finds that the defendant's domicile in Nevada was a simulated one and in that event may declare that the judgment of the court of a sister state is invalid and unenforceable and that such foreign judgment is not binding on the spouse domiciled here"]; see also In re Veltri's Estate, 202 Misc 401 ["a finding of domicile in Nevada does not foreclose a re-examination by a sister state of the very finding where domicile is the sole basis for the exercise of jurisdiction by the decreeing court"]; see also Rosenstiel v Rosenstiel, 368 F Supp 51, 56-57[internal citations and quotation marks omitted][the question of domicile in an ex parte divorce proceeding is open to collateral attack in a sister state; and upon a finding that domicile was lacking, the decree of divorce is not entitled to full faith and credit]).
In addition, a sister-state decree is also invalid if it was obtained by extrinsic fraud. In this regard, "[i]t is well-settled law that the fraud for which a judgment can be impeached must be in some matter other than the issue in controversy in the action"( Chenu v Board of Trustees of Police Pension Fund of City of NY, 12 AD2d 422, 424[internal citations and quotation marks omitted]). A judgment can only be set aside on the basis of extrinsic, rather than intrinsic fraud. "Fraud is extrinsic when it is collateral to the matter decided by the court and deprives the opposing party of an opportunity to present his claim or defense, as where a defendant is induced not to defend by a false promise to discontinue the action" ( DiRusso v DiRusso, 55 Misc 2d 839, 844). Fraud is intrinsic when it relates to the very matter decided by the court, as when perjured testimony is produced ( DiRusso, 55 Misc 2d at 844). Unlike extrinsic fraud, intrinsic fraud cannot be attacked collaterally, and relief is available only in the original action ( see Chenu, 12 AD2d at 424). The Supreme Court, Kings County, has previously noted that "[t]he plaintiff's right to attack the [foreign divorce] decree by exposing the falsity of the factual representations or the claims of domicile is an attack based upon fraud in the procurement'" ( Marcus v Marcus, 194 Misc 464, 467). In such cases, fraud in the procurement, or extrinsic fraud, must be established by clear, positive, and convincing evidence ( see Marcus, 194 Misc at 469 [internal quotation marks omitted]).
Finally, the party attacking the validity of the sister-state judgment bears the burden of establishing its validity ( see Williams v North Carolina, 317 US 287). The attack must overthrow the apparent jurisdictional validity of the foreign decree by disproving defendant's intention to establish a domicile in Nevada/the rendering state ( see Marcus at 469; see also Manasseri v Manasseri, 121 AD2d 697, 698 [the party attacking the validity of the foreign decree had to demonstrate that the defendant had not acquired a bona fide domicile in Nevada at the time the divorce action in that state was commenced]). A sister state decree is valid unless and until attacked by collateral evidence that the plaintiff was not in fact domiciled in the sister state at the time of its rendition ( Marcus at 469; see also McCloskey v McCloskey, 117 NYS2d 770, 771-772 [1952][in an action by divorced husband for declaratory judgment that a foreign Florida decree was valid, evidence was sufficient to establish the validity of the divorce decree, as there was no clear evidence that the decree was procured by fraud regarding husband's residence in Florida]).
Discussion
In the declaratory judgment action, plaintiff alleges that the Nevada court did not have subject matter jurisdiction to enter the instant divorce decree because defendant had not established a bona fide domicile in that state. She urges this court to invalidate the Nevada divorce decree, and declare her to be defendant's lawful wife. Defendant moves to dismiss plaintiff's complaint based upon this court's lack of subject matter jurisdiction to set aside his Nevada divorce decree.
The court notes, initially, that plaintiff was served with process of the Nevada action at her residence in New York. Plaintiff did not answer the complaint or otherwise participate in that action. As previously discussed, since the Nevada divorce decree was obtained by virtue of substituted service in New York, and because plaintiff did not appear in the Nevada action, the Nevada divorce decree will be given full faith and credit in this state unless plaintiff demonstrates that the service upon her did not meet the requirements of due process or that defendant was not properly domiciled in Nevada ( see Kulaka v Fire Dept. Article I Pension Fund, 145 AD2d 538). Plaintiff does not contest the propriety of the substituted service on her. Rather, she contends that the Nevada court lacked subject matter jurisdiction because defendant was not domiciled in Nevada.
(a)
As previously stated, the full faith and credit clause precludes collateral attack on a foreign divorce decree unless the law of the state granting the divorce permits such an attack. Here, the court finds that plaintiff has presented sufficient evidence to establish that the instant challenge to the Nevada court's jurisdiction, based upon the alleged lack of domicile of defendant, could have been similarly brought in Nevada. In Vaile, the Nevada case cited by plaintiff, the court held (at pages 269-270 of its decision) that failure to establish a domicile in Nevada at the time the complaint was filed would result in a failure to confer upon the court the jurisdiction to grant a divorce. The Vaile court further noted, (at page 271) that, "[r]esidency is a question of fact to be determined by the district court. Courts in this state are obligated to determine that the residency requirement has actually been met and that residency is not being established by fraudulent means." Under the facts in that case, the Vaile court found that the divorce decree was voidable, rather than void, and refused to set it aside, because it found that the husband provided sufficient evidence to show jurisdiction over the marital res (because he showed proof that he had resided in Nevada for the required six weeks). However, the Vaile court also noted that when divorces have a "mail order appearance," it would not hesitate to set them aside. Clearly, a Nevada court considers the finding of a bona fide domicile in Nevada to be a prerequisite to the conferral of jurisdiction in that state. Therefore, plaintiff's instant attack on the jurisdiction of the Nevada court, based upon defendant's alleged fictitious domicile in Nevada, would also be permitted in Nevada.
(b) New York courts have similarly considered a lack of domicile in the rendering state as a basis for vitiating the jurisdictional foundation of a foreign divorce decree ( see e.g. Fondiller v Fondiller, 182 Misc 628, 630[a Nevada divorce based upon constructive service on the wife, without a bona fide domicile of either party in Nevada, was not entitled to full faith and credit in New York]; see also Lewis v Lewis, 147 NYS2d 725 [1955][the court found that the residence of defendant husband in Nevada, preparatory to the decree of that state (which was entered in favor of the husband after the wife failed to appear), was utterly fictitious, the Nevada divorce decree was struck down as invalid in New York]; see also Edelman v Edelman, 3 AD2d 859[evidence conclusively showed that husband did not become a bona fide resident of Nevada, any proof he submitted to the Nevada court, upon which the finding of bona fide residence was based, constituted a fraud on the court; the Appellate Division, Second Department declared that the Nevada judgment of divorce was properly void for lack of jurisdiction]; see also Mascioli v Mascioli, 6 Misc 2d 846, affd 5 AD2d 1016[Supreme Court, Westchester County granted wife's motion seeking a declaration that an Arkansas divorce obtained by husband was invalid, based upon evidence that husband was never a domiciliary of Arkansas]; see also Harges v Harges, 21 Misc 2d 59[husband obtained a Nevada divorce decree based upon constructive service of process, and wife did not appear in the action, the wife's subsequent action in New York to have the Nevada decree declared void was granted; based upon evidence that the husband was never domiciled in Nevada and, therefore, that the Nevada court lacked jurisdiction to grant the divorce decree]; compare e.g. Vallianos v Vallianos, 5 Misc 2d 789[the Supreme Court, Queens County found that the defendant was a bona fide resident of Florida at the time the Florida judgment of divorce was entered, it gave full faith and credit to the Florida judgment and declared that such judgment was valid and in full force and effect]; compare also Maray v Maray, 35 AD2d 603[the husband genuinely intended to make Nevada his home when he went there to obtain a divorce without the appearance or consent of the wife, the Appellate Division, Second Department found that he was domiciled in Nevada when he obtained his divorce decree there, and that such decree would be given full faith and credit in New York]).
Contrary to defendant's arguments, under the circumstances presented here, this court has jurisdiction to consider whether defendant was properly domiciled in Nevada before the divorce decree was issued in that state ( see Myers v Connor, 93 NYS2d 623 [1949][service was made upon defendant in New York and defendant did not appear in the plaintiff's Nevada action for divorce, the trial court had jurisdiction to pass upon the "bona fides" of plaintiff's Nevada residence]; see also In re Veltri's Estate, 202 Misc 401[the record showed that defendant was served a copy of the Nevada summons and complaint in New York, and defendant never appeared in the Nevada action in any manner, the court held that plaintiff's domicile in Nevada was subject to re-examination]).
(c)
Insofar as the Nevada divorce obtained by defendant herein is concerned, the court begins with the presumption that a judgment of absolute divorce, obtained upon constructive service, in an action in which the nonresident did not appear or participate, is valid in the state granting the divorce, and is entitled to full faith and credit in any other state, including the state of matrimonial domicile ( see Williams v North Carolina, 317 US 287; see also In Matter of Holmes' Estate, 291 NY 261, 273, [the determination of the Nevada court that it had jurisdiction of the marital res is entitled to prima facie weight: "Instinct in these and other decisions of this court is the rule that the foreign judgment of divorce will be given full force and effect as a judgment in rem dissolving the marriage of the plaintiff until impeached by evidence which establishes that the court had no jurisdiction over the res"]). "In such instance, however, the domicile of the party obtaining the divorce is an important factor, and if the facts show that the residence in a foreign State was solely for the purpose of getting a divorce, or is otherwise shown to be a sham, full faith and credit need not be afforded" ( Rappel v Rappel, 39 Misc 2d 222, 223-224[internal citations omitted][the Supreme Court, Special and Trial Term, New York County, found that defendant's allegations of domicile were a fraud on the Nevada court, and his Nevada divorce decree a nullity, since defendant moved to Nevada solely for the purpose of divorcing his first wife so that he could marry another woman]).
Under the law of both Nevada and New York, domicile consists of actual residence within a state with the intention of making that state one's permanent home or one's home for an indefinite period ( see Rosensteil, 368 F Supp at 57 [regarding the definition of domicile in New York]; see also Vaile v Vaile, 118 Nev 262, 269 [regarding the definition of domicile in Nevada, as stated in NRS § 10.155]). "The question of domicile is one of fact to be determined on evidence submitted" ( Rappel, 39 Misc 2d at 224). Since plaintiff maintains that the residence of the husband in Nevada was fictitious and fraudulent, she has the burden of rebutting the prima facie effect of the Nevada court's finding of residence ( see Williams v North Carolina, 325 US 226, 233-234).
Here, this court finds that material facts are in dispute as to whether defendant was a bona fide Nevada resident as required for a divorce under Nevada law. Plaintiff's declaratory judgment action is a proper vehicle to determine the marital status of the parties ( see DRL § 236 [B][2][a]) and to decide whether the Nevada court had original jurisdiction to enter its divorce decree. The court, however, finds that before an appropriate declaration may be made, an evidentiary hearing is necessary to fully explore the question of the validity of the husband's domicile in Nevada. Accordingly, that branch of defendant's motion which seeks dismissal of plaintiff's complaint, on the ground of lack of jurisdiction, is denied.
Defendant's Request to Change Venue
The Law
Alternatively, defendant requests that, pursuant to CPLR 510 (3), this court transfer the instant action to the District Court, Family Division, Clarke County, Nevada. "Defendant's motion to transfer venue on the ground of witness convenience (CPLR 510) is discretionary and can be made at any time before trial" ( Velasco v Blue Spartan LLC, 20 Misc 3d 1119(A) [2008]). "A party moving for a change of venue pursuant to CPLR 510(3) has the burden of demonstrating that the convenience of material witnesses would be better served by the change" ( McManmon v York Hill Housing, Inc. , 73 AD3d 1137, 1139-1140 [internal citations and quotation marks omitted]). "In doing so, the moving party must set forth (1) the names, addresses, and occupations of numerous prospective witnesses, (2) the facts to which the witnesses will testify at trial, so that the court may judge whether the proposed evidence of the witnesses is necessary and material, (3) a statement that the witnesses are willing to testify, and (4) a statement that the witnesses would be greatly inconvenienced if the venue of the action was not changed" ( McManmon, 73 AD3d at 1140 [internal quotation marks omitted]).
CPLR 510 states, in relevant part, that:
"The court, upon motion, may change the place of trial of an action where: . . .
(3) the convenience of material witnesses and the ends of justice will be promoted by the change."
Discussion
Here, defendant generally identified several potential witnesses — landlords and neighbors, as well as voter registration personnel — who allegedly could testify to his compliance with the six-week residency requirement for Nevada divorce. Defendant states only that in Nevada he could call the aforementioned witnesses to "lay a proper foundation" for the submission of certain documentary evidence. However, even assuming that defendant provided sufficient information for the court to ascertain whether the proposed evidence of the witnesses was necessary and material, the convenience of defendant per se is not a factor in considering a change of venue based on CPLR 510(3) ( see generally McManmon, 73 AD3d at 1140). Moreover, defendant did not establish how the potential witnesses would be greatly inconvenienced if venue were not changed to Nevada ( see generally McManmon at 1140), nor did he provide a statement that the aforementioned witnesses would be willing to testify in Nevada. Under the circumstances, a transfer of this case to Nevada is inappropriate. As such, the remaining branch of defendant's motion which seeks to change the venue of the instant action to the District Court, Family Division, Clarke County, Nevada is denied.
Conclusion
Defendant's motion which seeks dismissal of plaintiff's complaint, on the basis of lack of jurisdiction, or, alternatively, a change of venue to the District Court, Family Division, Clarke County, Nevada, is denied in its entirety. The issue of defendant's domicile in Nevada for the six-week period preceding the commencement of the Nevada divorce action is referred to Special Referee Charmaine E. Henderson to be heard on October 18, 2010, at 9:30 a.m. in room 455. Counsel shall contact Special Referee Henderson by conference call at (347) 401-9127 no later than September 15, 2010, to arrange to execute the necessary forms to effectuate the referral to hear and report or if agreed to hear and determine pursuant to 22 NYCRR Part 122. The foregoing constitutes the decision and order of the court.