G.Y., Plaintiff, v. U.Y., Defendant.
The following papers were read on this motion:
Motion Sequence 001
Notice of Motion, Affidavit, Affirmation and Exhibits. X
Affidavit and Affirmation in Opposition and Exhibits X
Affidavit and Affirmation in Opposition to Cross-Motion and In Further Support of Motion, and Exhibits X
Motion Sequence 002
Notice of Cross-Motion, Affidavit, Affirmation and Exhibits X
Affidavit and Affirmation in Reply X
The Plaintiff moves by Notice of Motion (Seq. 001) for an Order:
1. Awarding Plaintiff custody of the parties' child, to wit: S.Y., born XXXXXXXX, 2020, with a reasonable parenting time schedule for the Defendant;
2. Awarding Plaintiff monthly direct child support from the Defendant for the parties' daughter, S.Y., in the amount of $ XXXXXXX per month;
3. Awarding Plaintiff an award of pro-rata unreimbursed medical and childcare expenses incurred on behalf of the parties' daughter, S.Y.;
4. Awarding Plaintiff attorney's fees in the amount of $XXXXXXXX from Defendant with leave to request additional fees as incurred; and
5. Granting Plaintiff such other and further relief as this Court may deem fair, just and equitable.
The Defendant moves by Notice of Cross-Motion (Seq. 002) for an Order:
(a) dismissing the above matter pursuant to CPLR § 3211(a)(2), CPLR § 3211(a)(7); CPLR § 3211(a)(8) and DRL § 230;
(b) denying the relief sought in plaintiff's Notice of Motion dated November 23, 2020;
(c) granting a hearing on all issues should the court determine the existence of jurisdiction; and
(d) for such other and further relief as the Court may deem just and proper.
Plaintiff G.Y. (the “Wife”) and defendant U.Y. (the “Husband”) (together, the “Parties”) were married on XXXXXX, 2019, in Nassau County, New York. Prior to the marriage, the Wife resided with her parents in a house she owned at XXXXXXXXXXXX, New York (the “NY Residence”), and worked as a pharmacist at XXXXXXXXXXX, New York. The Husband resided in Philadelphia, Pennsylvania, and worked as an anesthesiologist at XXXXXXXXXXXX in Philadelphia.
On or about XXXXXXX, 2019, the Parties signed a one-year lease for an apartment located at XXXXXXXXXXXX, Pennsylvania (the “PA Residence”), with a move-in date of XXXXXX, 2019. The Husband claims that the PA Residence was the marital residence of the Parties. The Wife claims that due to the location of their respective employment, the Parties lived separately during the marriage — she in New York and he in Pennsylvania — but that she occasionally slept at the PA Residence.
The Wife became pregnant in or around XXXXXXXXXXX, 2019. In or about January of 2020, the Wife resumed living exclusively in the NY Residence. The Husband resided in the PA Residence until the lease expired, and has since been living in a different apartment in the same building.
On March 5, 2020, when the Wife was approximately four months pregnant, she commenced the instant action for divorce by filing a Summons With Notice. On March 30, 2020, the Wife filed an Amended Summons With Notice. On April 2, 2020, the Husband's former counsel filed a Notice of Appearance and Demand for a Verified Complaint. The Wife served the Verified Complaint on or about April 21, 2020. The Husband served the Verified Answer With Affirmative Defense and Request for Counter Relief on or about May 12, 2020.
On XXXXXXXX, 2020, the Parties' daughter, S.Y., was born in the State of New York.
The Wife filed the instant motion for pendente lite relief on November 23, 2020, seeking, among other things, temporary custody and child support. On November 27, 2020 the Husband commenced proceedings in the Court of Common Pleas of Philadelphia County, Pennsylvania, seeking to establish a Child Support Order pursuant to Pennsylvania law.
The Husband filed the instant Cross-Motion on January 28, 2021, seeking to dismiss the above-captioned matrimonial action. Both motions were marked fully-submitted on March 4, 2021. Subsequent to their submission, the Pennsylvania proceeding was dismissed without prejudice pursuant to the Order of the Court dated March 10, 2021, stating: “This Court declines to exercise jurisdiction of this child support matter at this time.”
The Husband's Cross-Motion to Dismiss (Seq. 002).
The Husband asserts that the instant matrimonial cause of action cannot be maintained in New York, because neither Party was domiciled in New York at the time of the commencement of the action, and the Wife does not meet the residency requirement set forth in DRL § 230. The Husband seeks to dismiss the action pursuant to CPLR § 3211(a)(2) (lack of subject matter jurisdiction); CPLR § 3211(a)(7) (failure to state a cause of action); CPLR § 3211(a)(8) (lack of personal jurisdiction); and Domestic Relations Law (DRL) § 230.
Subject Matter Jurisdiction.
Counsel for both Parties frame the dispute regarding the Court's authority over this matrimonial action as a question of subject matter jurisdiction. Central to the discussion is whether the Wife's connection with New York was sufficiently permanent or continuous to allow her to maintain a divorce action here.
According to the Husband, the Wife moved into the PA Residence with the Husband in August of 2019, intending to live there and to make it the Parties' marital home. In support of this claim, the Husband notes that the Wife, together with the Husband, searched for the apartment, signed the lease, decorated the apartment, and shared a joint bank account at a branch in Philadelphia. Although the Wife may have been domiciled in New York prior to the marriage, the Husband contends, she gave up her New York domicile and residency when she moved to Philadelphia shortly after the marriage.
The Wife disputes the Husband's narrative. She insists that the Parties never established a marital residence in Pennsylvania. After the Parties were married, she states, she continued to reside and work in New York. In fact, during the Parties' eight-month marriage, she only spent fourteen nights at the PA Residence. She only signed the lease for the PA Residence, she says, to obtain access to the parking garage and to utilize building amenities. The Wife maintains that she never moved to Pennsylvania, noting that she: (i) retained her New York driver's license; (ii) retained the registration of her motor vehicles in New York; (iii) continued to work in New York; and (iv) continued to file her income tax returns as a New York resident. The Wife states that when the Parties learned that she was pregnant, they began to look for a home in New Jersey. If she contemplated moving anywhere, she claims, it was to a compromise location that would facilitate both of their careers. That plan, however, never came to fruition, because she decided to end the marriage. In the Wife's view, therefore, she remained a New York resident and domiciliary for the entirety of the Parties' marriage.
The Parties' submissions raise distinct, but interrelated issues. For the sake of clarity, the concept of subject matter jurisdiction must be distinguished from the concept of jurisdiction over the marital res. Subject matter jurisdiction pertains to the Court's authority to adjudicate the subject matter of the dispute. The underlying concern is the Court's competence to entertain a particular cause of action. Caivano v. Caivano, 188 Misc. 2d 552, 729 N.Y.S.2d 343 (Sup. Ct. Nassau Cty. 2001), citing Lacks v. Lacks, 41 N.Y.2d 71, 390 N.Y.S.2d 875, 359 N.E.2d 384 (1976). The issue of subject matter jurisdiction may be raised at any time in a dispute, and a judgment rendered without subject matter jurisdiction is void. Id.
The New York State Supreme Court, as a court of general original jurisdiction, is competent to entertain all causes of action unless specifically prohibited, including divorce actions. Lacks v. Lacks, supra. See NY Const., Art. VI, § 7. Thus, subject matter jurisdiction is not actually at issue in this case.
The question of jurisdiction over the marital res is not a matter of subject matter jurisdiction. As noted by the Court in Caivano, supra, jurisdiction over the marital res is a matter of procedural jurisdiction, akin to in rem jurisdiction. Procedural jurisdiction deals with the Court's authority over the parties interested in a dispute. The underlying concern is one of due process. Like in rem jurisdiction, jurisdiction over the marital res allows the Court to adjudicate a status deemed present in the State, and thereby to affect the rights of persons having an interest in such status, whether or not they are party to the proceedings or subject to the personal jurisdiction of the Court.1
See Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945); Senor v. Senor, 272 A.D. 306, 310-311, 70 N.Y.S.2d 909 (1st Dept. 1947). See also Carr v. Carr, 46 N.Y.2d 270, 413 N.Y.S.2d 305, 385 N.E.2d 1234 (1978). A decree entered without jurisdiction over the marital res may be binding upon parties to the marriage who have submitted to the Court's personal jurisdiction, but is not entitled to full faith and credit, and may be subject to collateral attack by third parties. Senor, 272 A.D. at 310-311, 70 N.Y.S.2d 909. Jurisdiction over the marital res requires that at least one of the parties be a domiciliary of the State in which the Court resides. Id.
Both subject matter jurisdiction, and jurisdiction over the marital res must be distinguished from the residency requirements of DRL § 230. “The durational residence requirements imposed by Domestic Relations Law § 230 are in addition to the constitutional and statutory mandates that the court have a proper basis for exercising in rem jurisdiction to adjudicate the question of marital status (see, CPLR 314) and personal jurisdiction to adjudicate the economic rights of domiciliary and nondomiciliary spouses (see, CPLR 301, 302[b]).” Unanue v. Unanue, 141 A.D.2d 31, 532 N.Y.S.2d 769 (2d Dept. 1988). Although often expressed as a jurisdictional requirement, the durational residency requirements of DRL § 230 are not a limitation upon the subject matter jurisdiction of the Court, but are merely substantive elements of the matrimonial cause of action which the plaintiff must allege and prove. Lacks v. Lacks, 41 N.Y.2d 71, 75, 390 N.Y.S.2d 875, 359 N.E.2d 384 (1977); Unanue, 141 A.D.2d at 31, 532 N.Y.S.2d 769.
The durational residency requirements for bringing a divorce action may be satisfied either by the traditional method of proving that a party has been domiciled in New York or, in the alternative, by proving that a party has resided in New York for the continuous period of time specified in the applicable subdivision. Unanue, 141 A.D.2d at 38-39, 532 N.Y.S.2d 769. DRL § 230 provides:
DRL 230 Required residence of parties.
An action to annul a marriage, or to declare the nullity of a void marriage, or for divorce or separation may be maintained only when:
(1) The parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
(2) The parties have resided in this state as husband and wife and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
(3) The cause occurred in the state and either party has been a resident thereof for a continuous period of at least one year immediately preceding the commencement of the action,
(4) The cause occurred in the state and both parties are residents thereof at the time of the commencement of the action, or
(5) Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action. (Emphasis added).
In the case at bar, the one-year period specified in subdivision (1) is applicable, insofar as it is undisputed that the Parties were married in New York, and that the Wife resided in New York at the time the action was commenced. Accordingly, the Wife may demonstrate satisfaction of the durational residence requirement of DRL § 230 by proving either that she resided in New York or that she was domiciled in New York,2 for a continuous one-year period preceding the commencement of this action.
The distinction between residence and domicile was articulated by the Court of Appeals over a hundred years ago in In re Newcomb's Estate, 192 N.Y. 238, 250-251, 84 N.E. 950 (1908):
As ‘domicile’ and ‘residence’ are usually in the same place, they are frequently used, even in our statutes, as if they had the same meaning; but they are not identical terms, for a person may have two places of ‘residence,’ as in the city and country, but only one ‘domicile.’ ‘Residence’ means living in a particular locality, but ‘domicile’ means living in that locality with intent to make it a fixed and permanent home. ‘Residence’ simply requires bodily presence as an inhabitant in a given place, while ‘domicile’ requires bodily presence in that place and also an intention to make it one's domicile. The existing domicile, whether of origin or selection, continues until a new one is acquired, and the burden of proof rests upon the party who alleges a change.
As stated by the Second Department in Unanue, supra, proof of residence is governed by objective fact findings as to where the party physically lived, whereas proof of domicile is controlled by the subjective intent of the party whenever the party moves. Unanue, 141 A.D.2d at 39, 532 N.Y.S.2d 769. See also Black v. Black, 108 A.D.3d 842, 968 N.Y.S.2d 722 (3d Dept. 2013).
Residence in New York depends on whether a party “has a significant connection with some locality in the State as the result of living there for some length of time during the course of a year.” Wittich v. Wittich, 210 A.D.2d 138, 139, 620 N.Y.S.2d 351 (1st Dept. 1994). A party may maintain more than one residence and still be deemed a resident of New York if he or she has resided in New York “with a substantial degree of continuity and permanence notwithstanding the existence of residences elsewhere.” Id.
A party may change residence without changing his or her domicile. A change of residence does not effect a change of domicile unless there is an intention to “give up the old and take up the new.” Black, 108 A.D.3d at 843, 968 N.Y.S.2d 722. “The test of intent with respect to a purported new domicile has been stated as whether the place of habitation is the permanent home of the person, with the range of sentiment, feeling and permanent association with it.” Id., at 843-844, 968 N.Y.S.2d 722 (internal citations and quotation marks omitted). Indicia of domicile include: “a place of residence in the state of 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.” Unanue, 141 A.D.2d at 40, 532 N.Y.S.2d 769.
The advantage to the plaintiff who seeks to establish domicile, as opposed to residence, is that domicile, once established, is presumed to continue. A change of domicile must be proven by clear and convincing evidence, and the burden of proof lies with the party asserting such change. Black, 108 A.D.3d at 844, 968 N.Y.S.2d 722; Unanue, 141 A.D.2d at 39, 532 N.Y.S.2d 769.
Applying the law to the facts of this case, the Court first looks to the question of residence. It is not clear whether the signing of the lease and the alleged transfer of belongings to the PA Residence represented an acquisition of an additional residence, or an actual change of residence, constituting an interruption of the Wife's continuous residency in New York. Looking solely at the infrequency with which the Wife was physically present at the PA Residence and her retention of substantial ties to New York throughout the one year period, it may be argued that the Wife resided in New York with “a substantial degree of continuity and permanence” notwithstanding the existence of her residence in Pennsylvania. The Court need not reach this conclusion, however. The crux of the Husband's argument concerns the subjective intent of the Parties to make the PA Residence their marital home. This goes to the question of domicile.
It is undisputed that the applicable indicia of domicile in New York were present at all relevant times: (i) the Wife owned property in New York where she had lived with her parents prior to and during the marriage, and where she continued to live after the Parties' separation; (ii) the Wife worked in New York throughout the entire one-year period prior to this divorce action; (iii) the Wife had bank accounts in New York; (iv) the Wife voted in New York; (v) the Wife had a New York driver's license and registered her cars in New York; and (vi) the Wife claimed a New York residence on her personal income taxes.
The dispositive question thus becomes whether the actions on the part of the Wife — the acquisition of a lease to the PA Residence in contemplation of marriage, the alleged decoration of the PA Residence, the alleged moving of belongings into the apartment, and the alleged purposeful transfer of the joint bank account from a branch in New York to a branch in Philadelphia — constitute clear and convincing evidence of an intent to make the PA Residence the Wife's permanent home, and thus to change her domicile from New York to Pennsylvania. The Court concludes that they do not.
Although the Court weighs heavily the fact that the PA Residence was acquired in contemplation of marriage, and that it was predominantly the location where the couple resided when they were together as a married couple, the law no longer presumes that the married woman's domicile is that of her husband; each spouse in a marriage is free to choose his or her own domicile, notwithstanding the domicile of the other spouse. Unanue, 141 A.D.2d at 35, 532 N.Y.S.2d 769. The Court will never know what went on in the Wife's mind when she entered the marriage and acquired the PA Residence with the Husband. The Court can only rely upon what she did or did not do as evidence of her intent. First and foremost, she did not give up her job in New York. There is no evidence that she took any affirmative steps to seek employment outside of New York.3 She spent the bulk of her time in New York, even after the marriage. Further, as noted above, she did not change her driver's license or vehicle registrations, she continued to vote in New York, and she affirmed her New York residence on her income taxes. Whether she simply did not have time to make those changes, as the Husband suggests, or she never contemplated doing so, as the Wife suggests, will never be known. Possibly, she remained uncertain. In any event, the totality of her actions do not amount to clear and convincing evidence that she intended to give up her domicile in New York and to make Pennsylvania her permanent home.
Finally, considering that the durational residency requirements were enacted “to preclude the use of our courts in matrimonial proceedings by spouses with no real ties with New York, who would flock here for the sole purpose of obtaining matrimonial relief unavailable in States that had substantial interests in the marital relationship,” it is clear that the Wife does not fall within this class of spouses. Unanue, 141 A.D.2d at 41, 532 N.Y.S.2d 769. Whether characterized as continuous residency or continuous domicile, it is clear that the Wife has longstanding and substantial ties to New York. Allowing her to maintain a matrimonial action in New York is consistent with the goals of the residency requirement.
Based upon the foregoing, the Court finds that the Wife has met her burden to establish that she was domiciled in New York for a continuous period of at least one year prior to the commencement of this action, and that the Husband has not met his burden to establish that the Wife intended to change her domicile upon her marriage and acquisition of a lease to the PA Residence.
As discussed above, insofar as the Court finds the Wife to be a domiciliary of New York, the Court has jurisdiction over the marital res. Accordingly, it may adjudicate the status of the marriage whether or not it has personal jurisdiction over the Husband. Nonetheless, the Wife is seeking monetary relief and thus the issue of personal jurisdiction must be determined.
The Husband maintains that there is no basis for the exercise of personal jurisdiction over him in New York because: (a) he has never been a resident or domiciliary of New York; (b) New York State was never the matrimonial domicile of the Parties; i.e., they never lived in New York State as husband and wife; (c) he did not abandon the Wife in New York State or anywhere else; and (d) no claims accrued and no agreements have been executed in New York. Thus, New York's “long arm” statute allowing personal jurisdiction over a non-resident defendant in a matrimonial action, does not apply. See CPLR § 302(b).
For purposes of discussion, the Court assumes the truth of the above facts as alleged by the Husband. Nonetheless, lack of personal jurisdiction is a waivable defense. “The filing of a notice of appearance in an action by a party's counsel serves as a waiver of any objection to personal jurisdiction in the absence of either the service of an answer which raises a jurisdictional objection, or a motion to dismiss pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction.” JP Morgan Chase Bank, N.A. v. Jacobowitz, 176 A.D.3d 1191, 111 N.Y.S.3d 391 (2d Dept. 2019). See also HSBC Bank USA, N.A. v. Taub, 170 A.D.3d 1128, 97 N.Y.S.3d 60 (2d Dept. 2019); Cadlerock Joint Venture, L.P. v. Kierstedt, 119 A.D.3d 627, 990 N.Y.S.2d 522 (2d Dept. 2014).
Here, it is undisputed that on or about April 2, 2020, the Husband's former counsel filed a Notice of Appearance and Demand for a Verified Complaint (the “Notice of Appearance”). The Notice of Appearance states:
“PLEASE TAKE NOTICE, that the within Defendant UZUNG YOON, hereby admits service of Plaintiff's Amended Summons with Notice dated March 30, 2020, and appears in the above entitled action․” (NYSCEF Doc. 13) (emphasis in original).
The Notice of Appearance included a demand for twenty-one (21) items of affirmative relief, including exclusive use and occupancy of the marital residence, sole custody of the Parties' daughter, and various forms of monetary relief.
The Husband's former counsel also filed a Verified Answer with Affirmative Defense and Request for Counter Relief (the “Answer”) on or about May 11, 2020 (NYSCEF Doc. 15). The Answer contained a single affirmative defense, namely that “Plaintiff's action does not meet the Residency Requirements set forth in NY DRL § 230 (1), (2), (3), (4), or (5).” The defense of lack of personal jurisdiction was not raised.
The Husband's present counsel asserts that, notwithstanding the Notice of Appearance and the Answer which made no objection to personal jurisdiction, the Husband may now assert the defense of lack of jurisdiction in the instant motion to dismiss pursuant to CPLR § 3211(a)(8), and thereby obviate any waiver. Citing CPLR § 3211(e), counsel asserts that insofar as no prior motion to dismiss was made without raising the objection to personal jurisdiction, the objection is now properly and timely raised in the present motion.
The Court does not agree. CPLR § 3211(e) governs the timing of motions to dismiss and the waiver of objections. It provides that at any time before a responsive pleading is required, a party may move to dismiss on one or more of the grounds set forth in CPLR § 3211(a), but that only one such motion may be made. A defense based upon certain enumerated grounds (not including lack of personal jurisdiction) may be waived if not raised in a pre-answer motion to dismiss or in the responsive pleading. A defense based upon lack of subject matter jurisdiction and certain other grounds may be raised at any time. Special rules apply with respect to a defense based upon improper service of process. The language applicable to a defense based upon lack of personal jurisdiction is as follows:
“An objection based upon a ground specified in paragraph eight or nine of subdivision (a) is waived if a party moves on any of the grounds set forth in subdivision (a) without raising such objection or if, having made no objection under subdivision (a), he or she does not raise such objection in the responsive pleading.”
This provision is reasonably construed to provide for two ways in which the defense of personal jurisdiction may be waived: (i) by making a motion to dismiss on any of the other grounds specified in subdivision (a) without raising the defense of lack of personal jurisdiction; or, (ii) where no such prior motion has been made, by failing to raise the objection in the responsive pleading.
Here, as noted by counsel, the Husband did not waive the defense of personal jurisdiction by filing a prior motion to dismiss without raising such defense. The Husband did, however, waive the defense of personal jurisdiction in the second manner articulated by CPLR § 3211(e) — by failing to raise the defense in his Answer. See McGowan v. Hoffmeister, 15 A.D.3d 297, 792 N.Y.S.2d 381 (1st Dept. 2005) (holding that if the defense of lack of personal jurisdiction is not raised in the defendant's first responsive pleading, whether answer or pre-answer motion to dismiss, it is waived).
The Court finds that because the Husband formally appeared in this action, admitted to service of process in his Notice of Appearance, and failed to raise the defense of lack of jurisdiction in his Answer, he has waived the objection to personal jurisdiction. Moreover, the Husband cannot now amend the Answer to raise the jurisdictional defense. McGowan, 15 A.D.3d at 297, 792 N.Y.S.2d 381 (“While permission to amend an answer is to be freely given pursuant to CPLR 3025 (b), the waiver of a jurisdictional defense cannot be nullified by a subsequent amendment to a pleading adding the missing affirmative defense”). Accordingly, dismissal based upon lack of personal jurisdiction is not warranted.
The Wife's Motion for Pendente Lite Relief (Seq. 001)
The Wife moves for pendente lite relief including (i) custody of the Parties daughter, S.Y., born XXXXXXX, 2020, with a reasonable parenting time schedule for the Defendant; (ii) child support in the amount of $ XXXXXXXX per month; (iii) an award of pro-rata unreimbursed medical and childcare expenses incurred on behalf of the Parties' daughter; and attorney's fees in the amount of $10,000, with leave to request additional fees as incurred.
In support of her argument that she should be awarded temporary custody of S.Y., the Wife offers a sworn narrative of her attempts to co-parent with the Husband, and of conduct on the Husband's part that, in her view, demonstrates his unwillingness to cooperate with her or to consider the child's best interests. In opposition, the Husband provides his own sworn statement contradicting the Wife's account, and citing conduct on the Wife's part that, in his view, demonstrates an effort to separate him from their child.
In determining a question of child custody, the Court must make every effort to determine what is in the best interests of the child, under the totality of the circumstances. Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260 (1982). Weighing the various factors involved in such a determination requires an evaluation of the testimony, character and sincerity of the parties. Id.
Here, the Court finds that it cannot reach a determination of custody upon the record presented. Accordingly, an evidentiary hearing is required. Insofar as the issue of custody is not resolved, the Court reserves decision on the ancillary questions of child support and related expenses.
With respect to the Wife's application for counsel fees, the Wife asserts that the Husband earns three times as much money as she does, and argues that absent an award of counsel fees she would be at a disadvantage in the litigation. The Husband opposes the Wife's application, arguing that, in view of the short-term nature of the Parties' marriage, and the fact that both Parties are gainfully employed in the medical field, they both should be responsible for their own legal fees.
DRL § 237 provides that, in a matrimonial proceeding, the Court may exercise its discretion to direct either spouse to pay the counsel fees of the other spouse. In exercising its discretion, the Court shall consider the circumstances of the case. The statute further provides that, “there is a rebuttable presumption that counsel fees shall be awarded to the less monied spouse.” Additionally, “an award of interim counsel fees ensures that the non-monied spouse will be able to litigate the action, and do so on equal footing with the monied spouse.” See Prichep v. Prichep, 52 A.D.3d 61, 858 N.Y.S.2d 667 (2nd Dept. 2008). Where there is no serious dispute that the Defendant's financial resources far exceed those of the Plaintiff, the Plaintiff should not be expected to exhaust all of the finite resources available to her in order to pay her attorneys. See Prichep v. Prichep, supra.
Awards of interim counsel fees to a non-monied spouse are warranted where there is a significant disparity in the financial circumstances of the parties in order to avoid compromising the ability of the non-monied spouse to adequately litigate the case. See Penavic v. Penavic, 60 A.D.3d 1026, 877 N.Y.S.2d 118 (2d Dept. 2009).
In the case at bar, the Wife's W-2 wages, as stated on her 2019 tax returns, were $XXXXXX (NYSCEF Doc. 21). The Husband's wages were $XXXXXXXX in 2019 and $XXXXXXX in 2018 (NYSCEF Doc. 22). The Court finds that the disparity in the Parties' incomes justifies an award of interim counsel fees.
The Court has considered the remaining contentions of the parties and finds that they do not require discussion or alter the determination herein.
Based upon the foregoing, it is
ORDERED, that the branches of the Wife's motion (Seq. 001) that seek an interim award of custody of the Parties' daughter, child support, and related expenses, are referred to a hearing; and it is further
ORDERED, that in accordance with the preceding decretal paragraph, a hearing shall be held via Microsoft TEAMS on XXXXXXXXXXXXXX; and it is further
ORDERED, that pending the hearing set forth above, each of the Parties shall maintain the status quo as consistent with his or her own sworn statements; that is, the Husband shall continue to pay monthly child support in accordance with Pennsylvania child support guidelines, as he claims to have done in his motion papers, and the Wife shall continue to facilitate parenting time between the Husband and the Parties' daughter, as she claims to have done in her motion papers; and it is further
ORDERED, that the branch of the Wife's motion (Seq. 001) that seeks an interim award of attorney's fees is granted to the extent that the Husband is directed to pay the sum of $XXXXXX to the Wife's counsel within 30 days of service of this Decision and Order with Notice of Entry; and it is further
ORDERED, that if payment of legal fees is not made as directed herein, the Clerk of the County of Nassau, upon payment of all appropriate fees, shall enter judgment in favor of the Wife's counsel as against the Husband upon presentation of this Order together with an Affirmation of Non-Compliance; and it is further
ORDERED, that the branch of the Husband's motion (Seq. 002) that seeks to dismiss the above matter pursuant to CPLR § 3211(a)(2), CPLR § 3211(a)(7); CPLR § 3211(a)(8) and DRL § 230 is denied; and it is further
ORDERED, that the branch of the Husband's motion (Seq. 002) that seeks a hearing on all issues raised in the Wife's motion for pendente lite relief is granted with respect to the issues of custody, child support and related expenses, and denied with respect to the issue of attorney's fees.
Any requests for relief not specifically addressed herein are denied.
This is the Decision and Order of this Court.
1. Where the State has jurisdiction over the marital res, the Court may render a judgment of divorce, separation, annulment, or as to the validity of the marriage, in the absence of personal jurisdiction over the defendant spouse, as in the exercise of in rem jurisdiction. An award of monetary relief, however, requires in personam jurisdiction over the defendant. See Alexander, Practice Commentary, McKinney's Cons Laws of NY, CPLR 314, C314:2.
2. Proof of domicile in New York would also satisfy the requirement of jurisdiction over the marital res, and allow the Court to adjudicate the status of the marriage, but not the monetary issues, even in the absence of personal jurisdiction over the Husband.
3. According to the Husband, in November of 2019, after the Wife learned of her pregnancy, the Wife stated that she would apply to the New Jersey or Pennsylvania Pharmacy Board for licensure, depending on where they ultimately purchased a house. He also claims that the Wife announced to friends at a dinner in November of 2019 that she was pregnant and leaving her job at St. Francis. If such claims are credited, their significance is nonetheless outweighed by the fact that she did nothing to further those stated ends.
Erica L. Prager, J.