DeMontmorin v. DuPont

• Decision Date: 30 November 1984
• Docket Number: No. 83-1329.,83-1329.
• Citation: 484 A.2d 582
• Parties: Nicole DuPont DeMONTMORIN, Appellant, v. Edmund R. DuPONT, Appellee.
• Court: D.C. Court of Appeals

484 A.2d 582

Nicole DuPont DeMONTMORIN, Appellant, v. Edmund R. DuPONT, Appellee.

No. 83-1329.

District of Columbia Court of Appeals.

Argued October 19, 1984.

Decided November 30, 1984.

Michael H. McConihe, Washington, D.C., with whom Jeffrey S. Weintraub, Washington, D.C., was on brief, for appellant.

Daniel G. Grove, Washington, D.C., for appellee. Carol A. Joffe, Washington, D.C., was on brief for appellee.

Before FERREN, TERRY and ROGERS, Associate Judges.

ROGERS, Associate Judge:

Appellant contends the trial court abused its discretion in granting appellee's motion to dismiss her petition for support under the doctrine of forum non conveniens. Upon review of the record we hold that the trial court abused its discretion; we therefore reverse the trial court's order and remand the case for reinstatement of appellant's support petition.

I

The parties, Nicole DuPont DeMontmorin (hereinafter appellant) and Edmund DuPont (hereinafter appellee) were divorced by decree in the District of Columbia on February 6, 1979. The divorce decree ratified and affirmed a separation agreement between the parties; the agreement was not merged into the decree of divorce, but survived the decree. The separation agreement provided that appellee was to pay child support to appellant for the three then minor children of the parties. Thereafter appellant, now living in New York with the youngest child (the older two are living and studying abroad), brought a "Petition for Support" in the District of Columbia alleging that appellee "has failed, neglected and refused to provide any support or other subsistence for the three minor children as he is well able to do and in spite of a specific agreement to do so." This petition was filed on May 4, 1983. Thereafter, on or about June 13, 1983, appellee, a resident of the District of Columbia, moved to dismiss the petition for forum non conveniens, asserting that on May 11, 1983 he filed suit in New York to enforce his visitation rights under the separation agreement and further asserting that the New York suit would necessarily involve issues of support.¹

Appellant opposed the motion to dismiss, asserting that the sole issue before the District of Columbia court was support as set forth in her petition seeking back support due under the separation agreement, and that appellee's New York suit was a "totally separate and distinct action."

Thereafter, the trial court, in a hearing on September 7, 1983, granted the motion to dismiss. The trial court, in the hearing and by written order dated October 14, 1983, found that: (1) the visitation action pending in New York could not avoid the issue of support;² (2) appellee had completely submitted himself to the jurisdiction of the New York courts; (3) appellant would suffer no prejudice by dismissal; (4) appellee would suffer prejudice because it would be exceedingly difficult for him to enforce a District of Columbia visitation order in New York; and (5) duplicitous litigation would result if the motion were not granted. The trial court thus concluded that "[w]hile the District of Columbia is a convenient forum, bifurcation of this case would simply go against logic and common sense" (emphasis added).

Several days later, on October 19, the parties, in New York, agreed to a stipulated settlement of appellee's visitation rights; appellee's attorney in that proceeding informed the New York court that the stipulation read into the record settled "the issues and matters presented in this action. . . ." No mention of support was made in the proceeding.

II

"The decision to grant or deny a motion to dismiss on the ground of forum non conveniens is committed to the sound discretion of the [trial] court, and will not be overturned absent a clear abuse of discretion." Asch v. Taveres, 467 A.2d 976, 978 (D.C. 1983). A defendant seeking dismissal on the basis of forum non conveniens, has a heavy burden, id; "`unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.'" Id. (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947)). The trial court, when ruling on a motion to dismiss for forum non conveniens, must take into account the private interest of the litigant and the public interest. Asch v. Taveres, supra, 467 A.2d at 978; Cohane v. Arpeja-California, Inc., 385 A.2d 153, 156 (D.C.), cert. denied, 439 U.S. 980, 99 S.Ct. 567, 58 L.Ed.2d 651 (1978).

Factors relevant to the private interest concern the ease, expedition, and expense of the trial, and include the relative ease of access to proof; availability and cost of compulsory process; the enforceability of a judgment once obtained; [and] evidence of an attempt by the plaintiff to vex or harass the defendant by his choice of forum, while public interest considerations include administrative difficulties caused by local court dockets congested with foreign litigation; the imposition of jury duty on a community having no relationship to the litigation; and the inappropriateness of requiring local courts to interpret the laws on another jurisdiction.

Asch v. Taveres, supra, 467 A.2d at 978 (citing Carr v. Rio-Medical Applications of Washington, Inc., 366 A.2d 1089, 1092 (D.C. 1976) (citations omitted)).

With regard to the private interests, the trial court found that New York has the greatest number of contacts in this case. We cannot agree. While it is true that appellant and her children reside in that state, appellee resides in the District of Columbia. Further, the separation agreement was entered into in the District and was ratified and affirmed by the District of Columbia court. This jurisdiction treats separation agreements as contracts, Owen v. Owen, 427 A.2d 933, 937 (D.C. 1981); and, in determining issues arising in contracts, applies the law of the jurisdiction with the more substantial interest in the litigation. Id.; Fowler v. A&A Co., 262 A.2d 344, 348 (D.C. 1970). Where, as here, a District of Columbia resident is alleged to be in violation of a separation agreement entered into in the District, we would apply the law of the District; thus New York does not have the greater interest in this litigation and the trial court erred in holding otherwise.

The trial court also found that appellee would suffer great prejudice by litigating his visitation claim in the District because of the difficulty of enforcing a District of Columbia visitation order in New York. But appellee has not demonstrated that he need drop his New York visitation suit if appellant's support suit is allowed to go forward here. Appellant's verified petition filed herein demonstrated that, contrary to the trial court's finding, the action here was for support and did not involve visitation; this jurisdiction could not prevent appellee from continuing his visitation suit in New York. The trial court relied on the mere assertion of counsel for appellee that the support and visitation issues were interdependent in the New York suit. Although appellee had the heavy burden to demonstrate forum non conveniens, Deupree v. Le, 402 A.2d 428, 429 (D.C. 1979), he introduced nothing to support the bare assertion of counsel that the support and visitation issues were both going to be litigated in New York. Indeed, the record demonstrates that the parties entered a stipulated settlement in...