July 2014

In the fourth “international” decision this month, Westchester County Supreme Court Justice Paul I. Marx dismissed a divorce action over which the Court had jurisdiction, deciding, however, that Nicaragua was the better forum. In L.A.B. v. B.M., decided July 9, 2014, the importance of the majority of witnesses and assets being in Nicaragua overcame the wife’s choice of court.

The wife was born and raised in Nicaragua, holding only a Nicaraguan passport. The husband is a U.S. citizen with a U.S. passport. The parties met in Nicaragua and were married in Nicaragua in a civil ceremony in 2003 and a religious ceremony in 2004. After they were married, the parties lived together in the husband’s Manhattan apartment. The parties have two children, the first born in Manhattan; and the younger, born in Nicaragua.

Shortly after the birth of their first son, the wife moved back to Nicaragua. She remained there as a homemaker residing with the parties’ children in one of the parties’ properties in Managua, Nicaragua. The husband is a Risk Manager at Credit Suisse Securities, LLC, residing in a condominium in White Plains, New York.

According to the wife, the husband obtained permission from his employer to work remotely from Nicaragua for several days each month.This allowed The husband to travel each month between New York and Nicaragua, where the wife and the parties’ child (and later children) resided.

The parties owned three properties in Nicaragua. In addition, the husband owned a condominium in Westchester. The parties established a corporation in Nicaragua to purchase two of their Nicaraguan properties and proceeded to build homes on those two properties.

The parties’ marital difficulties began in Fall 2013. In October, the wife notified her husband of her desire to divorce. On December 23, 2013, she wife filed a divorce summons with notice in New York asserting no-fault grounds. On January 13, 2014, the husband filed for divorce in Nicaragua.

The wife moved for an interim award of counsel fees. The husband cross-moved to dismiss the action, arguing that New York was without jurisdiction to hear this divorce action under DRL §§ 230 and 231 and that New York was an improper and inconvenient forum (forum non conveniens).

Justice Marx first held that the court had both personal and subject matter jurisdiction; it had the authority to decide the divorce issues. The residency requirements of D.R.L. §230 had been met. It was undisputed that the parties lived together as husband and wife in Manhattan for approximately three years. The parties further agreed that the wife was not a New York resident.Continue Reading Melting Pot (Part 4 of 4): Although New York Had Jurisdiction, Case Dismissed Because Nicaragua Was Better Forum

The third of four decisions this month with an international context was decided by New York County Supreme Court Justice Manuel J. Mendez.

In Bond v Lichtenstein (pdf), decided July 15, 2014, Justice Mendez granted a mother summary judgment in lieu of complaint under C.P.L.R. §3213 domesticating a $570,110.05 Hong Kong judgment for child support arrears.

The parties lived together for approximately one year beginning in April of 2006. The mother is a citizen of the United Kingdom and the father is a citizen of the United States. Not long after the mother found out she was pregnant, the relationship fell apart, and by April of 2007, the parties had separated.

On August 31, 2007, their female child was born in England. The mother currently resides with the daughter in Hong Kong and with another man.

On November 21, 2008, the mother commenced child support and paternity proceedings in England. There was a trial and resulting December 3, 2010 Support Order from the High Court of England.

The parties then entered into a consent summons for the purpose of obtaining a “mirror order” in Hong Kong reflecting the support obligations obtained by the mother in England and vacating the English Order. In November of 2012, the father submitted to jurisdiction in Hong Kong for obtaining the “mirror order” and resolving other related issues.

In May of 2013, the proceeding brought before the High Court of Hong Kong resulted in a four-day trial concerning child support. The father appeared for the trial by video. He submitted evidence and was represented by attorneys. On June 28, 2013, the High Court of Hong Kong, by Deputy High Court Judge, Bebe Pui Ying Chu, rendered an 87-page Opinion.Continue Reading Melting Pot (Part 3 of 4): Domesticating the Foreign Child Support Judgment

The second of four decisions this month with an international flavor was also decided by New York County Supreme Court Justice Ellen Gesmer.

In M v. M, 2014 N.Y.Misc. Lexis 3201, decided July 3, 2014, Justice Gesmer again voided a marital agreement, this time applying the laws of Spain and the Dominican Republic.

On June 27, 2001, one year and five months before their marriage, the parties signed an Agreement in Madrid, Spain, that purported to govern the disposition of property in the event of marriage and divorce. As with the Agreement in J.R. (see yesterday’s blog post), it provided that the parties would marry in a system of absolute separation of property.

At the time of the Agreement, the wife, born in the Dominican Republic, had Italian citizenship and was a domiciliary of Spain. The Husband is a citizen of Spain.

The parties were married in the Dominican Republic on December 12, 2002. Their marriage certificate, and the certification issued by the Office of Vital Statistics from the local government district, so listed the husband as a Spanish citizen, domiciled in Spain, and the wife as an Italian citizen, domiciled in Spain.

The wife commenced this divorce action in New York in 2012. Seeking now to invalidate the Agreement, the wife alleged that she never read the Agreement before signing it, that no one else read it to her, and that no formalities, particularly an oral recitation of the Agreement, were conducted when it was signed. She claimed that the husband brought her to the office of his attorney, and asked her to sign an accounting document drafted by his attorney to help him protect assets from business dealings. She claimed she never saw the document before the evening she signed it, and never saw or discussed it with the husband again until he raised it after commencement of this action. The husband disputed the wife’s claimed lack of awareness of the contents and significance of the Agreement.Continue Reading Melting Pot (Part 2 of 4): Prenuptial Agreement Voided Applying the Laws of Spain and the Dominican Republic

Among the challenges for the matrimonial bench and bar is the need to become instantly familiar with any type of business and any family situation. Applying the ever-changing New York family law to matters routine and novel is a Herculean task, worthy of  Dwayne “the Rock” Johnson’s IMAX 3D movie opening this weekend.

New York’s cosmopolitan population often presents still another layer of law and fact through which our judges must navigate. Four decisions this month reveal the breadth and complexity of those international issues.

In a July 21, 2014 decision in J.R. v. E.M., New York County Supreme Court Justice Ellen Gesmer decided to apply New York law to set aside a marital agreement for its failure to meet New York formalities, although the procedure followed in the Spanish Consulate where it was signed may have been far better able to achieve the goals New York’s formalities were designed to achieve.

On March 3, 2004, the day after they were married in New York City, the parties signed a “Matrimonial Property Agreement” before the Spanish Consul at the Consulate in New York City.

The wife is a Peruvian citizen; her husband is a Spanish citizen. Justice Gesmer noted that both parties are well-educated and accomplished native Spanish-speaking professionals, both currently employed by the United Nations.

After commencing her divorce action in 2013, the wife moved to set aside the marital agreement. She claimed that although the Agreement had been drafted before the parties went to the Consulate, she did not first see it until arriving at the Consulate on March 3, 2004.Continue Reading New York: The Divorce Melting Pot (Part 1 of 4)

“Estoppel” is the principle that precludes a person from asserting something contrary to that inconsistent with a previous statement, position or ruling. Two decisions last month bringing the principal and to focus.

First, the June 4, 2014 decision  of Kings County Supreme Court Justice Jeffrey S. Sunshine in Zito v. Zito primarily resolved the wife’s motion for temporary relief in a divorce action commenced by the husband on June 7, 2011. The parties had been married 10 years before that, and had a daughter (then 5) and a son (then 3).

The husband works in the family-owned Smiling Pizzeria. The wife, although a licensed pharmacist, alleged that she had been a full-time homemaker since the children were born. Those children attend private school and participate in a number of organized activities.

However, in addition to the wife’s motion for temporary relief, Smiling Pizzeria, itself, had moved to be allowed to intervene in the divorce action. The pizzeria wanted to establish that it was owned only by the husband’s father; that the husband had no ownership interest. Without an ownership interest of the husband, it was argued, it could not be subject to equitable distribution.Continue Reading Being Bound by Statements in Tax Returns and Court Papers