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Divorce Action Dismissed Due to Jurisdiction Issue


The Facts:

On 18 April 1998, the parties got married. There are two children of the marriage, born 21 August 1998 and 21 April 2002. From the date of the parties’ marriage until 14 August 2002, the parties and their two children resided in Eastchester, in Westchester County with the wife’s mother in a residence owned by the wife’s mother. A New York Injury Lawyer said ccording to the wife, the husband abandoned her on 14 August 2002. Thereafter, the husband resided for some period of time in Nassau County with a woman with whom he has an out-of-wedlock child. Then, the wife and the parties’ children moved to Dobbs Ferry, New York. The husband resided with the wife and children in the Dobbs Ferry residence for a two and a half week period in April and May of 2008. The husband’s 15 January 2009 driver’s license states that his address is the wife’s Dobbs Ferry residence.

A New York Criminal Lawyer said that on or about 21 February 2003, the husband commenced an action for divorce in Nassau County. On 18 June 2003, the venue of said action was transferred to Westchester County.
Thereafter, the husband also commenced another divorce action against the wife in Westchester County. Both actions were dismissed.

Or about 1 August 2009, the husband became a month-to-month tenant of an apartment in a private residence in Massapequa and his rent is $900.00 a month. Thereafter, he commenced another action for divorce in Nassau County. His complaint asserts three causes of action, viz: actual abandonment; social abandonment; and adultery. All the causes of action allegedly occurred in Dobbs Ferry in Westchester County.

The wife served an answer and sought for its dismissal. The wife moved for a change of venue from Nassau County to Westchester County on the ground that the convenience of material witnesses will be promoted. She has not interposed a counterclaim for divorce.

The Arguments:

The wife alleges that she will have to call various witnesses who reside and work in Westchester County, viz: her mother and another person. She states that each witness will testify that the husband resided in the Dobbs Ferry premises for two and a half weeks and never resided there after May of 2008 and deny that the husband asked them to intercede on his behalf on issues relating to the children because the wife would not speak to him. The wife asserts that the witnesses will be inconvenienced if they must travel to Nassau County to testify.

In opposition, the husband alleges that he moved to an apartment in Massapequa on 1 August 2009; that he was a resident of Nassau County at the time of the commencement of the action; that all issues of custody and child support have been resolved by the Westchester Family Court; that he never resided in the Dobbs Ferry residence after May of 2008; and that the wife’s mother does not work and can drive to Nassau County with the wife.

The Ruling:

The court finds that the husband’s second cause of action of social abandonment is devoid of merit.

On the first cause of action of actual abandonment, the husband admits he did not reside in Dobbs Ferry after May 2008. Accordingly, a Nassau County Family Lawyer said it appears that none of the three witnesses identified by the wife will have relevant testimony to offer at trial.

Nonetheless, the venue of the action must be transferred to Westchester County in the interest of justice.

Here, both parties indicate that custody and child support issues have been adjudicated in the Westchester Family Court but neither party has provided copies of any orders issued by that court. The husband’s prayer for relief set forth in his complaint seeks a judgment of divorce incorporating two Westchester County “F” docket support orders, but makes no mention of any “V” docket custody order. The husband’s prayer for relief asks that the judgment of divorce grant custody to the wife and grant him visitation pursuant to a detailed schedule set forth in the said prayer for relief. However, the Court cannot ascertain whether or not the visitation sought by the husband reflects the terms of any existing Westchester County Family Court order.

It appears that there may be visitation issues raised in the context of the divorce action. Even if the Westchester County Family Court has issued final orders of custody and visitation identical to the relief sought by the husband in his within complaint, enforcement or modification issues, often arise during the pendency of the action for divorce.

Notably, the parties’ children have resided in Westchester County their entire lives. Obviously, a Queens Family Lawyer said in issues of custody and visitation, which may arise in the context of a divorce action, should be determined in Westchester County and an attorney must be appointed for the children or a forensic evaluation is required.

Moreover, the Court notes that the husband has struck out twice in the Supreme Court Westchester County. His acquisition of a month-to-month rental unit in Nassau County on 1 August 2009 at a cost of $900.00 a month appears designed to establish predicate residency and his commencement of an action for divorce in Nassau County constitutes improper forum shopping.

Henceforth, the motion is granted. Venue of the action is transferred to Westchester County.
Nassau County Family Lawyers at Stephen Bilkis & Associates can help you with your legal problems. Contact us and have a free consultation. Know what court procedures are involved so you could properly plan how to legally resolve certain family issues. A Nassau County Child Custody Lawyer from our firm can also assist you with custody and visitation issues.

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