Anonymous v. Anonymous

• Decision Date: 28 March 2006
• Docket Number: 6874NA.,6874N.,6874NB.
• Citation: 814 N.Y.S.2d 21,2006 NY Slip Op 02294,27 A.D.3d 356
• Parties: ANONYMOUS, Respondent, v. ANONYMOUS, Appellant. STATE OF NEW YORK ex REL. ANONYMOUS, Acting on Behalf of Both Infants Under Age 14, Appellant, v. ANONYMOUS, Respondent.
• Court: New York Supreme Court — Appellate Division

27 A.D.3d 356

814 N.Y.S.2d 21

2006 NY Slip Op 02294

ANONYMOUS, Respondent, v. ANONYMOUS, Appellant.

STATE OF NEW YORK ex REL. ANONYMOUS, Acting on Behalf of Both Infants Under Age 14, Appellant, v. ANONYMOUS, Respondent.

6874N.

6874NA.

6874NB.

Appellate Division of the Supreme Court of the State of New York, First Department.

March 28, 2006.

Orders, Supreme Court, New York County (Judith S. Gische, J.), entered May 11, 2004 and November 16, 2004, which, inter alia, denied defendant's cross motion to refer all disputes in this

matter to the French courts on forum non conveniens grounds and ordered defendant to pay $4,500 in monthly child support until the parties' youngest son attains the age of 21, and judgment, same court and Justice, entered February 8, 2005, in favor of plaintiff in the sum of $73,507.62 plus $634.38 interest for child support arrears and unpaid school expenses, unanimously reversed, on the law, without costs, defendant's motion granted, the orders and judgment vacated, and the proceeding dismissed on condition that defendant promptly appear and waive any jurisdictional objections to any proceeding brought by plaintiff in the French courts to enforce the child support provisions of the French judgment of divorce and any subsequent orders relating thereto.

The parties were married in New York on Bastille Day in 1981 and have two sons who were born in New York and are now aged 23 and 19. In November 1994, plaintiff commenced an action for divorce (index No. 312208/94) in New York County by service of a summons with notice. Defendant never appeared and no complaint was served. In December 1994, defendant countered with an action for divorce in France where he resided and, in January 1995, commenced a habeas corpus proceeding (index No. 101733/95) in New York County seeking custody of the two children. Plaintiff moved in New York to stay the French action and to consolidate the divorce and habeas corpus proceedings and to litigate the custody issue exclusively in New York, which application was granted to the extent of granting consolidation.

Pursuant to a judgment rendered by the French court on March 28, 1996, defendant was granted a divorce and, as pertinent to these appeals, directed to continue paying, until the youngest son reaches 21 years of age, monthly child support for both children of $4,500 plus "the costs of schooling, out-of-school activities and traveling of the children subject to reasonable limits." The French court "declare[d] it inappropriate to rule on the exercise of parental authority, the place of residence of the children, rights of access or accommodation since these matters have been laid before the Court of New York."

On June 18, 1996, a final custody order was entered in the consolidated New York divorce action and habeas corpus proceeding, which order was modified on appeal to, inter alia, appoint defendant sole guardian of the parties' two sons for purposes of selecting an appropriate boarding school, conditioned upon his establishing permanent residency in New York City (254 AD2d 1 [1998]; see also 280 AD2d 433 [2001]). A motion for anonymous status was granted by this Court only to the extent of publishing "the instant decision" with an anonymous caption (254 AD2d 1, 3).

In the meantime, in February 1997, plaintiff brought an action in federal court to declare that the French divorce judgment was not entitled to recognition. Defendant responded with an action in New York County Supreme Court, which, after the federal action was dismissed, the federal court abstaining in favor of the New York courts, resulted in a judgment (Eileen Bransten, J.), entered June 12, 1998, declaring the French judgment of divorce to be valid as a matter of comity, and that its provisions deferring to the New York court all issues concerning custody of the children and directing that defendant continue to pay plaintiff $4,500 monthly for the two children plus the reasonable costs of their schooling, out-of-school activities and traveling expenses are entitled to enforcement. This Court affirmed with the parties' names appearing in the caption (261 AD2d 175 [1999], lv denied 93 NY2d 818 [1999]). On November 18, 1998, plaintiff's consolidated action for divorce was dismissed on grounds of res judicata, which judgment was affirmed by this Court (269 AD2d 157 [2000]), again with the parties' names appearing in the caption.

At some point, after the parties' oldest son turned 18 or 19, he moved to France to live with defendant and to attend school there; the younger son, however, continued to live with plaintiff in New York and attend boarding school here.

In December 2002, defendant sought a downward modification of his child support obligations from the French court. Plaintiff appeared in the French proceeding, but, in January 2004, using the New York County index numbers and captions from the consolidated 1994 divorce action and 1995 habeas corpus proceeding, moved for entry of judgment for child support arrears, alleging that she had received no child support payments for her oldest son since November 2002 and none for her younger son since August 2003. Defendant cross-moved to stay or deny plaintiff's motion, asking the court to decline to exercise jurisdiction over matters concerning child support on the ground that the more convenient and appropriate forum would be France; that the French court was the proper forum because the judgment of divorce was issued there; and that defendant's application for a downward modification of child support was pending there. Plaintiff opposed the cross motion, arguing that because New York granted comity to the French divorce judgment the court had continuing jurisdiction; that under French law, the French court did not have jurisdiction to rule on the issue of child support in its 1996 judgment of divorce since at the time there were pending child custody proceedings in New York; that the only order directing defendant to pay child support is Justice Bransten's June 12, 1998 judgment; and that, pursuant to conflict of laws principles, New York is the jurisdiction with the most significant contacts in this case.

In reply, counsel for defendant affirmed that the pending downward modification proceeding in France had been delayed until the French court received complete birth certificates for the boys and that he was informed by French counsel that the birth certificates had now been delivered to the French court and such proceedings would now proceed to conclusion. Counsel also pointed out to the court that plaintiff had filed her motion to enforce the child support provisions of...