Nemes v. Tutino

• Citation: 101 N.Y.S.3d 538,173 A.D.3d 16
• Decision Date: 26 April 2019
• Docket Number: CAF 18–01161,1372.1
• Parties: In the Matter of Jaclyn H. NEMES, Petitioner–Respondent, v. Mark C. TUTINO, II, Respondent–Appellant. In the Matter of Mark C. Tutino, II, Petitioner–Appellant, v. Jaclyn H. Nemes, Respondent–Respondent.
• Court: New York Supreme Court — Appellate Division

173 A.D.3d 16
101 N.Y.S.3d 538

In the Matter of Jaclyn H. NEMES, Petitioner–Respondent,
v.
Mark C. TUTINO, II, Respondent–Appellant.

In the Matter of Mark C. Tutino, II, Petitioner–Appellant,
v.
Jaclyn H. Nemes, Respondent–Respondent.

1372.1
CAF 18–01161

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: April 26, 2019

BETZJITOMIR LAW OFFICE, BATH (SUSAN BETZJITOMIR OF COUNSEL), FOR RESPONDENT–APPELLANT AND PETITIONER–APPELLANT.

CHAFFEE & LINDER, PLLC, BATH (RUTH A. CHAFFEE OF COUNSEL), FOR PETITIONER–RESPONDENT AND RESPONDENT–RESPONDENT.

LORENZO NAPOLITANO, ROCHESTER, ATTORNEY FOR THE CHILD.

PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND CURRAN, JJ.

OPINION AND ORDER

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It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted, the order entered February 8,

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2017 is vacated, and the petition and cross petition are dismissed.

Opinion by NeMoyer, J.:

Absent an emergency, the New York courts may exercise subject matter jurisdiction in child custody cases only as permitted by Domestic Relations Law § 76(1). Because Family Court had no such jurisdiction in this case, we reverse.

FACTS

The parties are the biological parents of a male child born in New Jersey on February 18, 2015. Following his birth, the child lived in New Jersey with both petitioner-respondent mother and respondent-petitioner father. The mother thereafter relocated with the child to Steuben County, New York, and she commenced this proceeding against the father on January 8, 2016 in the Family Court of that county (hereafter, court). In her petition, which sought sole custody of the child, the mother averred that the child was moved from New Jersey to New York on July 15, 2015. Thus, the mother argued, the New York courts had subject matter jurisdiction over this matter

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because "this state is the home state of the child on the date of the filing of the petition." The father, who still resided in New Jersey, thereafter cross-petitioned under the same index number for shared custody. In his cross petition, the father averred that the child was moved from New Jersey to New York on an unspecified date in August 2015.

The parties appeared before the court on six occasions between February and November of 2016. Throughout the hearings, the father expressed his frustration at, inter alia, the pace of the proceeding and the court's reluctance to fashion a visitation schedule that took account of the distances involved. When the case was called for the seventh time on January 19, 2017, the father did not appear and could not be reached telephonically. The court then dismissed the father's cross petition and granted the mother's petition from the bench. Notably, however, the court took no testimony on the mother's petition.

In its final written order of February 8, 2017, the court, in relevant part, dismissed the father's cross petition "based on his failure to appear"; granted the mother "sole legal custody and physical placement of the minor child"; and granted the father "visitation in New York as the parties agree, not to include overnight visitation." The father's appeal from that order was subsequently dismissed "on the ground that no appeal lies from an order entered upon default" ( Matter of Nemes v. Tutino, 2017 N.Y. Slip Op. 93913[U], 2017 WL 5897879, *1 [4th Dept. 2017] ).

The father then moved to vacate the foregoing order, arguing principally that the court lacked subject matter jurisdiction over this proceeding because, at the time of its commencement on January 8, 2016, New York was not the child's "home state" for purposes of the Domestic Relations Law (see CPLR 5015[a][4] [authorizing a motion to vacate a judgment or order "upon the ground of ... lack of jurisdiction"]; see generally Domestic Relations Law § 76[1] ). The balance of the father's motion consisted of complaints about the fairness of the underlying proceedings that are not cognizable grounds for vacatur under CPLR 5015(a).

The mother opposed the motion to vacate and argued, insofar as relevant to this appeal, that the court had subject matter jurisdiction over this proceeding because:

"[the father's] own facts indicate that, at most, the child was present in the State of New Jersey for five and a half months. Subsequent to that, the

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child was then present in the State of New York for five and a half months. Based

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on those facts, it is undisputed that either state could assume jurisdiction as the child, in fact, did not have a ‘home state.’ "

The court denied the father's motion to vacate and held, insofar as relevant here, as follows:

"[the father's] claim that the court lacked jurisdiction is raised for the first time in this motion. The subject child had resided in Steuben County[, New York] for approximately half of his young life and [thus New York] was the home state of the child on the date of commencement of the proceeding ... [The father] failed to raise any jurisdictional issues throughout the numerous appearances prior to the scheduled hearing date and in fact filed his own [custody] application in Steuben County."

The father appeals, and we now reverse.

DISCUSSION

A

Historically, jurisdiction in custody matters depended upon the physical presence of the child, and courts tended not to credit the custody determinations of other states (see Merril Sobie, Practice Commentaries, Introductory Commentary, McKinney's Cons Laws of NY, Book 14, Domestic Relations Law art 5–A at 401–402 [2010 ed] [hereafter Sobie, Practice Commentaries] ). Consequently, a parent who was unhappy with a custody determination in one state could retry the case from the beginning by bringing the child to another state (see id. ). That created "jurisdictional anarchy" and encouraged parents to adopt a " ‘seize and run’ " strategy in custody disputes (id. at 402; see Vernon v. Vernon, 100 N.Y.2d 960, 967, 768 N.Y.S.2d 719, 800 N.E.2d 1085 [2003] [noting the tendency for " ‘a disgruntled parent ... to relitigate an adverse custodial de[c]ree in a more hospitable state’ "] ).

In 1968, the National Conference of Commissioners on Uniform State Laws promulgated the Uniform Child Custody Jurisdiction Act (UCCJA). The Conference's primary motivation was to "avoid jurisdictional competition and conflict with courts of other states in matters of child custody" (Domestic Relations Law former § 75–b [1][a] ). To this end, the Conference proposed a simple framework for determining jurisdiction

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in custody matters (see former § 75–d [1] ). A state would have jurisdiction if, among other bases, it was the "home state" of the child at the commencement of the proceeding or in the preceding months (former § 75–d [1][a]; see Vanneck v. Vanneck, 49 N.Y.2d 602, 609, 427 N.Y.S.2d 735, 404 N.E.2d 1278 [1980] ). "Home state," in turn, was defined as the state where the child had lived for six months before the proceeding, or, if the child was less than six months old, where he or she had lived since birth (see former § 75–c [5] ).

By the early 1980s, each state had adopted the UCCJA (see Sobie, Practice Commentaries at 402). New York adopted the uniform legislation in 1977, in a form "substantially identical" to that proposed by the Conference (id. ). The UCCJA framework worked well at first, but its simplicity and comprehensiveness was eroded over the ensuing decades by the Hague Convention on the Civil Aspects of International Child Abduction and a patchwork of preemptive federal legislation addressing custodial interference and child-support enforcement (see Sobie, Practice Commentaries at 402). Consequently, in the late 1990s, the Conference proposed the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (see Sobie, Practice Commentaries at 404). The

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UCCJEA has since been enacted in every state except Massachusetts.¹

"While the ‘home state’ provision was [already] a basis for establishing jurisdiction in custody proceedings ..., the newly-enacted UCCJEA elevate[d] the ‘home state’ to paramount importance" ( Matter of Michael McC. v. Manuela A., 48 A.D.3d 91, 95, 848 N.Y.S.2d 147 [1st Dept. 2007], lv dismissed 10 N.Y.3d 836, 859 N.Y.S.2d 607, 889 N.E.2d 485 [2008] ). Consistent with that new paradigm, the legislature rewrote Domestic Relations Law § 76 to create one primary and three alternative categories of jurisdiction in custody cases. Each category is keyed to the child's "home state," which is now defined as either "the state in which a child lived with a parent ... for at least six consecutive months...