New York Family Law Blog
The parties met in New York, while the defendant (husband) was on a vacation from his employment as a diplomat with the United Nation particularly, a Deputy Director of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) in the Gaza Strip. At that time, the plaintiff (wife), was newly admitted to the New York bar and employed as an attorney with a law firm.
A New York Family Lawyer said that the defendant transferred to Jerusalem as Director of UNRWA operations. A New York Divorce Lawyer said that the parties maintained a long-distance relationship for a year until the plaintiff terminated her employment in New York and joined the defendant in Jerusalem, where she became a Lecturer and Program Supervisor. For over a year of living together, they married each other at the British Consulate in Jerusalem.
Thereafter, defendant was transferred to Lebanon while the plaintiff had been a working with the United Nations Development program in Jerusalem and continued for a few months more before joining defendant in Lebanon. The parties’ child was born in Beirut, Lebanon.
Defendant was transferred in Jordan as a Country Director. Such transfer made the parties to jointly decide that Jordan would be a less stressful location than Lebanon, to pursue a more positive and balanced family life. A Nassau County Family Lawyer said before moving to Jordan, plaintiff look for a suitable residence for their family. However, prior to the defendant’s transfer, plaintiff informed the defendant that she had been offered a short-term job in Lebanon which would be helpful to her career development. In spite of this, defendant visited plaintiff in Lebanon every two weeks. A year after plaintiff informed the defendant of her uncertainty in continuing their married life. However, she allegedly told defendant that she would stay in Lebanon until he retired in, and would continue to look for work in Vienna, Austria, parties’ preferred potential residence after his retirement.
Plaintiff then informed the defendant that she wanted a divorce and would be moving to New York with their child to establish residency. Shortly thereafter, the family traveled to the United Kingdom to visit defendant’s adult children from previous marriage. Thereafter, the plaintiff and their child left for New York while the defendant returned to Jordan.
The defendant said that they jointly purchased an apartment in Brooklyn, New York and that plaintiff and their child currently reside there. The couple never resided there as it was intended only for investment purposes. The parties used the property as a place to stay during extended visits to the plaintiff’s family in the United States. Defendant states that the property has been rented out to tenants for the majority of the time that the parties have owned the same.
The parties visited New York together on seven different occasions during their marriage. Three of these visits took place subsequent to the parties’ purchase of the apartment in Brooklyn with one occurring after the birth of the parties’ child. A Nassau County Child Support Lawyer said each visit was approximately 2-3 weeks in duration with the most recent visit lasting approximately four weeks.
According to the defendant, the couple had minimal contacts with New York during their marriage; they owned a joint account with a Credit Union, and a small amount of furniture. While the wife has voted in United States elections and filed US tax returns throughout the marriage she has done so as a non-resident; and she did not file New York State income tax returns. Further, while the plaintiff had a New York driver’s license, the same expired some time ago. Moreover, the plaintiff was admitted to the New York bar and permitted her attorney registration to lapse years ago; and, they had no affiliation with any church or religious organization or membership in any social or community organization in New York.
On the other hand, the wife contends among others that: she is a domicile of New York, where she was born, raised and educated, including her attendance at law school. She spent her early adult years in New York as well, admitted to New York Bar and worked as an attorney. She has voted in New York, filed New York state and federal tax returns, continually maintained two bank accounts in New York, maintained her New York State driver’s license and purchased in Brooklyn, New York with Husband the only residence she has ever owned. She lists the Brooklyn home as her “permanent address” as part of her United Nations profile.
Further, wife avers that she resided with Husband subsequent to the parties’ marriage at numerous temporary residences in Israel and Lebanon while he was posted at various duty stations located therein. Likewise, she states that the parties never bought real property, established residency, voted in local elections or filed local tax returns while residing in the various locations in the Middle East where Husband was stationed during the marriage. She maintains that she took no steps to change her New York domicile to any other jurisdiction during the eleven years of the parties’ marriage and traveled home to visit family and friends in New York “as often as was feasible.” Wife states that after Husband was transferred to Jordan, she and the parties’ child, also a U.S. citizen, were given complimentary 3-year non-extendable extensions to stay in Lebanon, at the sole discretion of the Lebanese government because of the former diplomatic status of Husband in Lebanon, a courtesy extended to all foreign diplomats serving within that country. With respect to the Brooklyn property, Wife states that she and Husband determined that Brooklyn, New York was the “right place” to purchase a home for their family and stayed there for several weeks in order to view as many properties as possible before making said purchase. She avers that the parties specifically decided that they wanted their family marital home and long term residence to be in Brooklyn, New York. She notes that Husband chose the real estate company and they viewed many properties with said realtor before choosing the Brooklyn residence.
Furthermore, Wife describes New York City as the locus of Husband’s employment, banking relationships, real estate broker, tax payments, insurance company and pension retirement accounts. She notes that his employer is the United Nations, which has its headquarters located in New York City and, as a result, he has regularly received salary, engaged in ongoing communications with his employer, attended business meetings and conducted work related activities in New York.
Lastly, the plaintiff stated that they regularly discussed that upon the defendant’s retirement, they would return to New York their Marital Residence. They discussed retirement to Vienna, mainly for tax reasons. They chose New York over Vienna, which led them to purchase the Brooklyn property. After their child was born, they resolved to retire in New York, as it was important to both of them that their child be able to develop a close relationship with the relatives in New York. Moreover, Husband applied for several jobs in United Nations Headquarters in New York. The parties’ child is attending pre-school near the Brooklyn residence and is set to attend kindergarten. Wife avers that she is entitled to an interim order of protection, child custody of their child and exclusive occupancy of the Brooklyn residence based upon alleged longstanding verbal and physical spousal abuse by Husband. Thus, asking for child support in the monthly expenses for her and their child.
In view of the forgoing facts, the defendant moves for an order granting the following relief: (1) dismissing the instant divorce action pursuant to CPLR for lack of personal jurisdiction on the ground that the jurisdictional requisites of CPLR do not obtain in this matter; or alternatively (2) dismissing the action pursuant to CPLR for failure to state a cause of action on the grounds that the residency requirements have not been adequately pled by plaintiff (Wife); or (3) dismissing the action pursuant to CPLR on the ground that New York is an inconvenient forum for litigating same.
Whereas, the wife opposes the instant motion and cross-moves for an order granting the following relief: (1) issuing an order of protection to her as against Husband; (2) awarding her exclusive use and occupancy of the alleged marital residence located in Brooklyn, New York; (3) awarding her interim child custody of the parties’ infant child with whom she currently resides in Brooklyn; (4) directing Husband to pay interim spousal and child support to Wife in the amount of $8,710.00 per month and requiring him to maintain all insurance for and on behalf of Wife and the infant child, to pay all unreimbursed health expenses for Wife and the parties’ child and to provide all payments for the child’s private school, summer expenses and any and all other costs related to the child’s care; (5) directing Husband to pay interim counsel fees of $25,000.00 to Wife; and (6) restraining Husband from making any and all transfers of assets during the pendency of this action.
The issues in the case are as follows: (1) whether the New York Law has jurisdiction to hear the divorce case filed by the plaintiff; (2) whether plaintiff is entitled for an order of protection, child custody, and child support over their child.
The Court insofar as deciding the question on the jurisdiction of the New York law to hear the divorce proceedings, denies Husband’s motion to dismiss the complaint upon the grounds asserted by him; namely, lack of personal jurisdiction, failure to state a cause of action for divorce and forum non conveniens. In considering the extensive record before it, the Court finds that New York is properly construed as the parties’ marital domicile, thereby authorizing the imposition of personal jurisdiction over Husband pursuant to the provision of the CPLR and similarly fulfilling Wife’s residency pleading requirement under DRL.
In so determining, the Court focuses on the salient issue of the parties’ intent concerning their choice of permanent residence. Thus, the Court cited the provisions of CPLR 302 (b) which provides, in relevant part, the following concerning the imposition of personal jurisdiction in matrimonial actions: A court in any matrimonial action or family court proceeding involving a demand for support, alimony, maintenance, distributive awards or special relief in matrimonial actions may exercise personal jurisdiction over the respondent or defendant notwithstanding the fact that he or she no longer is a resident or domiciliary of the state if the party seeking support is a resident of or domiciled in this state at the time such demand is made, provided that this state was the matrimonial domicile of the parties before their separation.
The relevant residency requirement of DRL provides that an action for divorce may be maintained in New York where either party has been a resident of the state for a continuous period of two years immediately preceding the commencement of said action. With respect to jurisdiction pursuant to CPLR 302(b), it has been held that a Court may exercise jurisdiction where New York has sufficient interest in the outcome of the action and the defendant possesses adequate minimum contacts with the state to avoid any due process violation. In addition, it must be demonstrated that New York was the last substantial matrimonial domicile before the parties’ separation.
The Court held that “Domicile” has been defined as the location where a person has voluntarily fixed his or her abode with the present intention of making same his or her permanent home. Accordingly, once a domicile is acquired in New York, it is not lost merely due to temporary absences from the state and a person can change residences numerous times while retaining his or her original domicile. Stated differently, domicile, once established, unlike mere physical residency, is presumed to continue and is controlled by the subjective intent of the party claiming domicile. Although a change of domicile may be established through clear and convincing evidence the burden of proving said change is upon the party asserting same.
In the instant case, the determination as to whether New York is properly construed as the parties’ marital domicile for purposes of the provision on CPLR jurisdiction is a difficult one. As noted by Husband, although the parties owned the Brooklyn residence since 2002, they only utilized the same during temporary, albeit regularly scheduled, trips to New York to visit Wife’s friends and family. Moreover, the parties lived an international lifestyle during their marriage.
In looking at the crucial elements of “intent” and “permanence” associated with the issue of domicile, however, the Court finds that New York was the intentionally chosen marital domicile of the parties. New York is the only jurisdiction in which the parties bought real property together and regularly returned to, regardless of where Husband was stationed at the time. The importance of such trips to New York was such that Husband ultimately listed the United States as his “home state” for purposes of United Nations travel benefits. Although Husband maintains that said property was purchased solely for investment purposes, the parties did not rent out the property until several years after its purchase, resided there whenever they traveled to New York prior to its rental and did not enter into a rental agreement in excess of one year when they finally did lease the property to tenants. For several years, furniture, clothes and other personal belongings were kept at the premises. When such belongings were put into storage, they were kept in a facility located in Brooklyn.
The Court said that, the purchase of the Brooklyn property is the key. The parties never purchased real property in the Middle East. There is no indication that any of their residences in the Middle East were other than transitory when Husband was given a new assignment by the United Nations, the parties relocated to that area. There is no evidence of any indication of permanency remained in any of their prior residences after the parties moved from Israel to Lebanon or when Husband moved from Lebanon to Jordan. Indeed, Husband asserts that he took the assignment in Jordan as Lebanon had proven to be a stressful location and was not conducive to a stable family life, hardly an indication that Lebanon was considered in any way by the parties to be their permanent home. Moreover, once Husband moved to Jordan, Wife was given a “grace period” during which she could remain in Lebanon, but there is no evidence that such grace period would have or could have been extended. There is also no evidence whatsoever that either Israel or Jordan were at any time either the domicile of Husband or Wife separately or could be construed as the parties’ marital domicile. Husband states that the parties considered both the Middle East and Austria as potential domiciles for their permanent relocation subsequent to his retirement, but the Court notes that New York is the only jurisdiction where the parties actually bought property.
It is a well settled rule that in construing domicile, the Court must weigh objective evidence in order to identify subjective intent and often the accumulation of informal, as opposed to formal, “declarations” concerning the parties’ intention to make a specific locale their permanent home, are the most persuasive.
In weighing the accumulated factors here, Wife’s longstanding connection to New York, the jurisdiction where she was born, raised, schooled, first became a professional and maintains close connections to friends and family, the location in New York City of the United Nations headquarters, Husband’s long-time employer, the purchase together by the parties of the Brooklyn residence and their retention and personal use of same for several years, the parties’ regular trips to New York and the transient, largely employment-focused nature of the parties’ residences in the Middle East lead this Court to find that New York was the only permanent, mutual home the parties shared, in other words, their marital domicile, prior to their separation. Moreover, the location of Husband’s employer, various financial accounts and the Brooklyn residence in New York, establish the requisite minimum contacts to allow for the exercise of jurisdiction by this Court over him without offending any related due process requirements.
An easier question presents itself with respect to Wife’s status as a New York domiciliary for purposes of the residency requirements mandated by DRL. It is well settled that physical residency is not the sole test for determining compliance with Domestic Relations Law, but is an alternative to domicile. Therefore, once his or her domicile is established in New York, a plaintiff can be deemed in compliance with the residency requirements of DRL.
When undertaking to determine an issue of domicile, evidence of the following circumstances is relevant: a place of residence in the State of the alleged domicile; length of time of residence, location of schools attended by children; leasing, buying, negotiating for or building a home; declarations, oral or written, made at time of, or in connection with, a move which shows intent that a residence shall be permanent; place of worship and club memberships; place of performance of civic duties, such as voting, jury duty, payment of personal income taxes; place of bank account; jurisdiction where automobile is registered and the State of issuance of a driver’s license.
In addition, the Court must be mindful that an existing domicile is presumed to continue absent sufficient evidence that an intentional change to same has been made. In the case at bar, Wife was born, raised and educated in New York, including her attendance at law school. She spent her early adult years in New York as well, was admitted to the New York bar and worked in New York during her initial employment as an attorney. She has voted in New York, filed New York state and federal tax returns, continually maintained two bank accounts in New York, maintained her New York State driver’s license and purchased in Brooklyn, New York with Husband the only residence she has ever owned. She lists the Brooklyn home as her “permanent address” as part of her United Nations profile. Although she resided in various locations in Israel and Lebanon during the parties’ marriage and was employed with some regularity while living in Lebanon, there is no evidence that Wife intended to make any of these jurisdictions her new domicile or intentionally ceased to consider New York to be her permanent home.
Accordingly, the Court held that it find sufficient evidence exists to support Wife’s compliance with the residency requirement of DRL and, therefore, her complaint is not subject to dismissal based upon her alleged failure to do so.
Finally, the action is not subject to dismissal pursuant to the doctrine of forum non conveniens (means to refuse exercise or assume jurisdiction). On a motion to dismiss on the ground of forum non conveniens, the burden is on the movant to demonstrate the relevant private or public factors which militate against accepting the litigation in the New York jurisdiction. Dismissal on this ground is addressed to the sound discretion of the Court. In determining whether dismissal on forum non conveniens grounds is appropriate, the court should consider such factors as the potential hardship on defendant, whether an alternative forum is available or not and the residency of both parties, as well as the situs of the actionable events, hardship to potential witnesses and the burden which will be imposed on New York Courts with no one factor controlling. However, unless these factors weigh heavily in the defendant’s favor, the plaintiff’s choice of forum will not be rejected and the action will not be dismissed under this doctrine.
Thus, in the court’s discretion, it determines that dismissal of the instant action is not warranted on forum non conveniens grounds. Husband has traveled to New York many times and has the means and ability to do so, particularly given that he will be retiring in approximately six months time. The parties own both financial assets and real property in New York. Wife and the parties’ child are currently residing at the Brooklyn residence. Potential witnesses such as Husband’s grown daughter and the parties’ child care worker have already proffered affidavit evidence and there is no indication that either would be inconvenienced by the retention of jurisdiction by a New York court. Moreover, given the transient nature of the parties’ residences throughout the Middle East, Husband has failed to demonstrate that a viable alternative forum exists other than New York, the jurisdiction which the court already has determined is properly construed as the most permanent of the parties’ marital residences, thereby rendering it the “marital domicile” for CPLR purposes, as well as the longstanding domicile of Wife.
In view of the forgoing, the Court declines to dismiss the instant action on forum non conveniens grounds. With respect to the pending litigation relief sought by Wife, the court finds that she is entitled to spousal support and child support pending litigation. Accordingly, the Court finds sufficient corroboration to impose a temporary order of protection in this case. With respect to temporary custody of the parties’ child, a hearing is necessary to determine the appropriate arrangement pending a final custody/visitation determination. Currently, Mother has residential custody of the parties’ child in Brooklyn and it is unclear to the court whether any visitation has been scheduled with respect to Husband’s access to the child. As in custody matters, the Court said that the standard to be applied in visitation disputes would be the best interests of the children.
In sum, the Court ordered that Husband shall be responsible for the following expenses/payments, pending litigation: (1) monthly non taxable spousal and child support payments to Wife, to be made on or before the 1st of each month, retroactive to the date of her application for same, giving credit for any payments voluntarily paid by Husband to Wife, in the aggregate amount of $7,000 ($5,000 spousal support, $2,000 child support); (2) all health, life, homeowner’s and automobile insurance; (3) all unreimbursed medical expenses for the parties’ child; and (4) the child’s private school tuition and expenses for after school and summer activities for the child. (5) Attorney’s fees payable to the wife’s lawyer in the amount of $20,000 without prejudice to further application should circumstances warrant. If the attorney’s fees are not paid within 30 days, the clerk is directed to enter a money judgment in favor of counsel upon written affirmation. The Court further ordered that Wife shall have exclusive possession and occupancy of the Brooklyn residence during the pendency of this action; and that a separate appropriate temporary order of protection shall issue from this court. While the portion of Wife’s motion seeking to restrain Husband from making any and all transfers of assets during the pendency of the action is denied in its entirety.
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