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Plaintiff Petitions Court for Divorce on the Grounds of Abandonment


The Facts:

On 16 January 1981, plaintiff and defendant were married in New York. On 10 September 1983, their daughter was born.

A New York Family Lawyer said the defendant claims that she, plaintiff, and their daughter moved to Israel in about 1987, with the intention of living there permanently. On the other hand, although they purchased an apartment in Israel, plaintiff claims that he had no intention of permanently relocating there and had applied for permanent residency in that country only to obtain government benefits for defendant and their daughter.

Plaintiff returned to New York in 1987, and has lived here ever since; whereas, defendant, who is an Israeli citizen, and their daughter, who is a citizen of both the United States and Israel, have remained in Israel and continue to reside there.

Sometime in September of 1989, during religious divorce proceedings initiated by plaintiff, the Rabbinical Court of Israel, which has jurisdiction over matrimonial matters, awarded custody of their daughter to the defendant and prohibited removal of the child from Israel without permission of the Rabbinical Court. On 12 December 1989, the Rababinical Court ordered plaintiff to pay defendant $30,000 as a guarantee for alimony and child support payments, or $1,000 per month. Plaintiff did not follow through with the religious divorce at that time.

On 17 August 1990, plaintiff obtained a default judgment in the herein court, awarding him a judgment of divorce upon the ground of abandonment. The divorce decree awarded joint custody of their daughter and directed plaintiff to continue paying $1,000 per month in child support. The parties were also ordered to sell the apartment in Israel and to split the proceeds, when either their daughter reaches emancipation or defendant remarries. It appears from the Judgment of Divorce that the court was not made aware of the prior proceedings in Israel.

Sometime in March of 1993, plaintiff reinstated religious divorce proceedings in Israel. On 16 June 1993, the Rabbinical Court ruled that the parties were to obtain a religious divorce and ordered counseling for their daughter to renew her relationship with plaintiff. A Nassau County Family Lawyer said sometime in November of 1993, the Rabbinical Court ordered the parties to negotiate a divorce and reduced the spousal and child support to $500 per month. Sometime in 1994, the Rabbinical Court issued several orders concerning the daughter’s visitation with plaintiff in New York. On 4 August 1994, it reduced the plaintiff’s alimony and child support to $100 per month, as a result of defendant’s failure to comply with the Rabbinical Court’s visitation orders. The appellate Rabbinical Court upheld the lower Rabbinical Court’s support and visitation determinations. Both parties were represented by counsel on each occasion before the Rabbinical Court. The religious divorce in the Rabbinical Court is presently pending.

Plaintiff moves to suspend child support payments which had been ordered by the court, upon the ground that defendant has not complied with the visitation arrangements set forth in the divorce decree; that the court grant comity to child and spousal support orders issued by the Rabbinical Court of Israel but not to child custody/visitation orders which were also issued by the Rabbinical Court.

Defendant cross-moves to vacate the portions of the divorce decree regarding equitable distribution, child support, and visitation; order a hearing on the issue of equitable distribution; and compel plaintiff to provide defendant with a “Get”, a religious divorce in the Jewish faith.

The Ruling:

Under the law, there are two forms of jurisdiction involved in matrimonial cases: in rem over the marital status and in personam over the individual spouse.

The court may exercise in rem jurisdiction over the marital status, provided one of the applicable provisions of the residency requirements is satisfied. A Nassau County Child Support Lawyer said once notice is properly served upon the defendant, the court may enter a binding judgment of divorce, separation, or annulment but it may not enter a judgment adjudicating the economic, child custody, and child support rights of the parties.

On another note, in personam jurisdiction must be acquired over the person or by consent in order to determine the issues.

Here, plaintiff has met the residency and notice requirements. The defendant did not appear and a default judgment for divorce was entered. Although defendant alleges she was never served, she does not challenge the court’s in rem jurisdiction and accepts the judgment of divorce.

However, defendant does challenge the court’s in personam jurisdiction to adjudicate the equitable distribution, child support, and child custody provisions incorporated in the divorce decree. If service has not been properly made, the court is without jurisdiction and the default judgment must be unconditionally vacated. Thus, at issue here is the propriety and sufficiency of service, not in terms of in rem jurisdiction to adjudicate the marital status of the parties, but in personam, to determine economic issues, including equitable distribution, child custody and support and maintenance obligations.

Under the rules, service outside the State of New York must be made in the same manner as service within the State. An exception to this statute is the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters to which the United States and Israel are signatories. This treaty, which supersedes state statutes pursuant to the supremacy clause of the United States Constitution, requires service upon parties in a signatory nation to be made through a Central Authority designated by the signatory nation. The only exception to this rule that is applicable to the instant matter is contained in Article 10 of the Convention.

In the herein case, plaintiff sent the summons and complaint to the son-in-law of defendant’s brother, in Israel, to personally serve the defendant. He did not make service through the Directorate of the Courts, as required by Israel in the treaty. Therefore, service under Article 10 of the Convention was improper.

Moreover, the meaning of the word “send” and whether it encompasses service of process was discussed in several cases concerning Japan, also a signatory to the Convention, who had also objected to paragraphs of Article 10. Here, plaintiff did not send the summons and complaint directly to defendant by registered mail as he had done with the Judgment of Divorce and Notice of Entry which would have satisfied Article 10. Instead, he sent it to a third party for service upon the defendant. Nonetheless, even if plaintiff did send the process directly to defendant by registered mail, the word “send” does not encompass legal service. This is evident by the fact that the word “service” is used in every section of the treaty that prescribes methods of service, except Article 10(a).

In view of the deliberate and careful draftsmanship evident throughout the provisions of the Convention, the court cannot agree with the simplistic approach of the First and Fourth Departments that this was merely careless drafting. The choice of terms here was most deliberate and carefully worded; the approach and construction adopted by the Appellate Division, Third Department, is far more consistent with the intent which underlies the Hague Convention, and the purposes which the treaty sought to address.

At any rate, plaintiff did not comply with any of the requirements of the Hague Convention insofar as they pertain to Israel, sufficient to confer personal jurisdiction over the defendant. Israel did limit and modify the Convention provision, by permitting service of judicial documents only through the Directorate of the Courts, which was not done here.

Thus, the default judgment against defendant, regarding equitable distribution, custody, support and visitation, must be vacated for lack of in personam jurisdiction.

On the argument that service of process by someone authorized to make service by the laws of Israel was proper, there was no proof offered here either in the papers submitted, or in the lengthy hearing which was held, that the person who effected the service in Israel was in fact authorized to serve process under the laws of that country. And, even if proper service was effectuated, the court is without jurisdiction to decide the custody and visitation issues that were brought in plaintiff’s divorce petition, pursuant to the Uniform Child Custody Jurisdiction Act (“UCCJA”). This statute also precludes the court from exercising jurisdiction to modify the Israeli custody and visitation decrees. Two other relevant statutes, the International Child Abduction Act (“ICAA”), which is another Hague Convention Treaty codified in the United States, and the Federal Parental Kidnapping Prevention Act (“PKPA”), are not applicable to the instant matter. Neither party proceeded under the ICAA, which provides for the return of abducted children and for the enforcement of custody and visitation rights in other countries, or the PKPA, which was enacted to determine when one state should grant full faith and credit to child custody judgments from other states. The PKPA does not have a provision recognizing foreign decrees because it was enacted to regulate only interstate jurisdiction.

Under the UCCJA, there is no jurisdiction because New York was not the home state of the daughter at the time the action was commenced; it was not the home state six months prior to the time the action was commenced. The daughter had moved to Israel with her parents, approximately three years prior to when the plaintiff commenced the divorce action, and returned for only one summer in 1988. In addition, there is also no jurisdiction because the daughter does not have a significant connection to the herein state; she has not been physically present in this state by virtue of abandonment or an emergency; she has been an Israeli citizen most of her life; she does not have any friends or other close personal relationships in New York; she has not attended school in New York; she has not visited New York for extended periods of time; and, she does not intend to relocate to New York in the near future. All her present and future care and education remains in Israel. What’s more, the court does not have jurisdiction under the UCCJA because New York would be an inconvenient forum to litigate since both the mother and the child permanently reside in Israel. Finally, the court is without jurisdiction because the Rabbinical Court of Israel has asserted jurisdiction over the matter and appears to have no intention of relinquishing jurisdiction. Israel’s jurisdiction may be recognized by the herein court under the UCCJA, which grants recognition and enforcement to custody decrees from foreign countries involving legal institutions similar in nature if reasonable notice and opportunity to be heard were given to all affected persons. As noted, both parties were present and/or represented at the Rabbinical Court proceedings so they were afforded notice and an opportunity to be heard. Thus, there is no basis to decline recognition of Israel’s jurisdiction under the UCCJA.

On the remaining branches of plaintiff’s motion and defendant’s cross motion, plaintiff’s request for recognition of the Rabbinical Court’s support orders is denied on the ground that there is no application pending in the herein court to enforce these judgments. Also, defendant’s request for a hearing on equitable distribution is denied. The court declines to exercise jurisdiction over this issue, which should more appropriately be addressed in the matrimonial proceedings currently before the Rabbinical Court of Israel. However, the parties are not precluded from seeking to enforce or modify the Rabbinical Court’s equitable distribution decision in the herein court if interests in the State of New York are affected; they are not precluded from seeking equitable distribution in this court if the Rabbinical Court does not address the distribution of property. Lastly, although plaintiff claims that religious divorce proceedings are pending in Israel and that the defendant has stalled the proceedings to prolong spousal support under religious law, plaintiff is directed to follow through the “Get” to remove the barriers to defendant’s remarriage.

In sum, the judgment of divorce is sustained on the ground that the court did not acquire proper in rem jurisdiction over the marital status; the judgment concerning equitable distribution, child custody, visitation, and child support, is vacated on the ground of improper service; defendant is not entitled to a hearing on equitable distribution, and recognition of the Israeli support orders is denied; the court has no jurisdiction to modify the child custody/visitation orders issued in Israel, pursuant to the UCCJA; plaintiff is directed to follow through with the religious divorce proceedings in Israel and provide defendant with a “Get”.

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