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.
The parties disputed whether the husband was, and has been, a New York resident for at least one year prior to the filing of this action. The husband argued that neither he nor his wife were domiciled in New York and that he was not a resident of New York because he “commutes” to New York from Nicaragua.
However, Justice Marx noted that the husband was a full-time employee of Credit Suisse at their Manhattan office. The husband owned an apartment in Manhattan, purchased prior to the parties’ marriage, where the parties lived until November 2006 when the wife returned to Nicaragua and the husband sold the apartment. Less than six months after the sale of the Manhattan apartment, the husband purchased a condominium in White Plains, which he maintained since 2007. The husband used his White Plains address on all of his important financial documents: the parties’ federal income tax returns for 2008, 2009, 2010, 2011, and 2012, his W-2s, his mortgage, his home equity loan, and his checking account. The husband, by his own admission, had limited friends and resources in Nicaragua.” Further, the husband did not provide the Court with sufficient evidence such as plane tickets, credit card receipts, or correspondence with his employer in support of his broad assertion that he was”commuting from Nicaragua” to his full time job in New York.
Accordingly, the Court found that the husband was currently a New York resident currently and and had been for at least the one year preceding the filing that was required to base jurisdiction over the proceeding.
Nonetheless, Justice Marx found that New York was not the proper forum. Justice Marx recognized that the wife and the children were Nicaraguan domiciliaries and residents. The parties’ eldest child had not lived in New York since infancy and the parties’ younger child never lived in New York. The parties’ children never attended school in New York and participated in sports clubs in Nicaragua. They had an established social life there.
Nearly all of the witnesses and evidence were located in Nicaragua. Further, the majority of the parties’ assets that would be subject to appraisal and equitable distribution were in Nicaragua. Three of the parties’ four properties, including two homes, were located in Nicaragua. The parties’ had interests in a Nicaraguan corporation which would be subject to financial evaluation and perhaps further civil litigation.
If this Court were to attempt to equitably distribute this property, it would encounter language barriers and unnecessary delays in the appraisal and financial evaluation of these assets. This carries heavy weight in the Court’s consideration of the forum non conveniens argument, as, contrary to [the wife’s] assertion, it is the convenience of the court, not that of either litigant, that controls this determination.
Further, Justice Marx pointed out, Nicaragua was a suitable alternative forum for the parties’ litigation. Although the wife emphasized that the Nicaraguan action was filed subsequent to the New York action, the “first to file” rule was not to be followed mechanically. The Nicaraguan filing is evidence that an alternative forum is available for the litigation.
The Court believed that the husband would be unduly burdened by sustaining this litigation in New York. Although the husband was a resident of New York, he would be compelled to produce witnesses from Nicaragua to establish his interest in the parties’ Nicaraguan properties. Further, as the monied spouse, the husband might be required to pay for a substantial portion of not only each real property appraisal and financial evaluation necessary in this case, but translation of necessary supporting documents.
The Court found that this case lacked sufficient nexus to New York. As such, the Court was not required to retain jurisdiction over the case.
Clearly, the instant case is best adjudicated within the jurisdiction where the children and [the wife] reside, where the majority of the parties’ assets are located, and where nearly all of the witnesses are located. Accordingly, [the husband’s] motion to dismiss based on forum non conveniens is granted.
Finally, the Court in its discretion denied both parties application for counsel fees for the motion. The wife had standing to file for divorce and maintain her action in New York. She did not improperly file in New York. Therefore, the Court denied the husband’s request for fees on his motion. The Court did not reach the merits of the wife’s motion. Accordingly, the Court denied the wife’s request for fees on her motion.
Neena Tankha, Esq., of Cohen Clair Lans Greifer & Thorpe LLP, of Manhattan, represented the wife. William V. Cally, Esq., of White Plains, represented the husband.