Vanneck v. Vanneck

• Decision Date: 27 March 1980
• Citation: 49 N.Y.2d 602,404 N.E.2d 1278,427 N.Y.S.2d 735
• Parties: , 404 N.E.2d 1278 John B. VANNECK, Appellant, v. Isabelle K. VANNECK, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 735

427 N.Y.S.2d 735

49 N.Y.2d 602, 404 N.E.2d 1278

John B. VANNECK, Appellant, v. Isabelle K. VANNECK, Respondent.

Court of Appeals of New York.

March 27, 1980.

Julia Perles and Sheila Riesel, New York City, for appellant.

William G. Mulligan, Sandra W. Jacobson, Hadassah R. Shapiro, New York City, Howard J. Pobiner, Briarcliff Manor, and Arthur H. McGuire, New York City, for respondent.

OPINION OF THE COURT

COOKE, Chief Judge.

John and Isabelle Vanneck were married in New York in 1965 and lived together with their three children in this State until December, 1978. On the 19th of that month, during the children's winter school recess, Isabelle Vanneck took the children to the family's home in North Stamford, Connecticut, and decided to remain. Alleging the irretrievable breakdown of the marriage, Isabelle, defendant here, commenced an action in Connecticut on December 30, 1978 by personal service upon plaintiff in that State, seeking dissolution of the marriage, alimony and custody of the children. Two weeks later, on January 13, 1979, plaintiff commenced this New York action for divorce on the ground of cruelty or, in the alternative, for separation on the ground of abandonment. He too sought custody of the parties' three children.

Plaintiff moved in the New York court to enjoin defendant from prosecuting the divorce action in Connecticut, contending that defendant's move was undertaken to establish divorce jurisdiction in that State to enable her to exploit its equitable distribution laws. Plaintiff also sought temporary custody of the children, urging that daily transportation to New York schools was not in the children's best interest. In opposition, defendant asserted the bona fides of her residence in Connecticut, as well as that of the children, and, in support of her custody of the children, that they had been enrolled in Connecticut schools for the spring 1979 term.

In light of the custody issue present in both the New York and Connecticut actions, Special Term put aside consideration of the traditional criteria for restraining prosecution of a foreign divorce action and applied article 5-A of the Domestic Relations Law, which codifies the Uniform Child Custody Jurisdiction Act (UCCJA) (L.1978, ch. 493, eff. Sept. 1, 1978). Considering such factors as the family's residence in New York of long duration, the children's attendance at schools here, and the secondary nature of the Connecticut home prior to the separation, the court concluded that New York had a substantial interest in the family unit. The court further determined that irrespective of defendant's contacts, residence or domicile in Connecticut, New York bore the closest connection to the children and the family and provided access to evidence concerning the children's care, protection, training and personal relationships. The court therefore granted the injunction against prosecuting the Connecticut action pending a final determination of the New York action for divorce and other relief.

A divided Appellate Division modified the order at Special Term; it agreed that article 5-A of the Domestic Relations Law was applicable, but ruled that Special Term had given inadequate consideration to the pendency of the proceeding in Connecticut and to whether the court there was exercising jurisdiction substantially in conformity with article 5-A. The court found sufficient contacts between the family and Connecticut, at least as a threshold matter, to support jurisdiction in that State under the act. In the majority's view, the act required the New York court to defer the exercise of jurisdiction at least until the communication and co-operation mechanisms statutorily available had been utilized by both courts to determine the most appropriate forum for the litigation. Special Term's failure to follow the act's mandate required reversal of the portion of the order enjoining prosecution of the Connecticut action.

The appeal is before this court on a certified question of law. There should be an affirmance and that question should be answered in the affirmative.

Traditionally, an injunction against prosecution of a foreign divorce would be granted when the rights of a resident spouse were threatened (see Garvin v. Garvin, 302 N.Y. 96, 96 N.E.2d 721). The grant of such relief involves the exercise of discretion after consideration of such factors as the bona fides of the domicile established in the other State, the motivation for commencing an action there and the substantiality of contacts with that forum (see, e. g., Gersten v. Gersten, 61 A.D.2d 745, 401 N.Y.S.2d 806; Browne v. Browne, 53 A.D.2d 134, 385 N.Y.S.2d 983). When the parties to a divorce proceeding seek as ancillary relief a child custody determination, however, the UCCJA is applicable (Domestic Relations Law, § 75-c, subd. 3). A separate inquiry, with proper weight accorded to the provisions of the act, is required for determining whether the custody phase of the litigation may proceed in the foreign court. To assure that the best interests of the child and salutary provisions of the act are not subordinated to the parents' interest in obtaining the best terms of the divorce, the court should determine whether to enjoin prosecution of the divorce only after the inquiry concerning the custody issues has been undertaken. Of course, the decision whether to exercise custody jurisdiction is a factor in determining the propriety of injunctive relief against the divorce phase, and the weight to be accorded this factor may vary depending on the circumstances of the particular case. The preliminary decision concerning New York's exercise of jurisdiction over the custody issues, however, must have as its foundation the proper application of the UCCJA.

The UCCJA represents a considered effort to give stability to child custody decrees, minimize jurisdictional competition between sister States, promote co-operation and communication between the courts of different States, all to the end of resolving custody disputes in the best interests of the child (see Domestic Relations Law, § 75-b; Prefatory Note of Commissioners on Uniform State Laws, 9 ULA (Master Ed.), pp. 111-114; see, generally, Governor's Memorandum approving L.1977, ch. 493; 1977 McKinney's Session Laws of New York, pp. 2514-2515; 96 A.L.R.3d 968). The act offers a standard for determining in the first instance whether the necessary predicate for jurisdiction exists. Custody may be determined in the child's "home state" (Domestic Relations Law, § 75-d, subd. 1, par. (a)), defined as "the state in which the child at the time of the commencement of the custody proceeding, has resided with his parents, a parent, or a person acting as parent, for at least six consecutive months" (Domestic Relations Law, § 75-c, subd. 5), or in the State that had been the child's home State within six months before commencement of the proceeding where the child is absent from the State through removal by a person claiming custody and a parent lives in the State (Domestic Relations Law, § 75-d, subd. 1, par. (a), cl. (ii)). A jurisdictional predicate also exists in New York when "it is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is within the jurisdiction of the court substantial evidence concerning the child's present or future care, protection, training, and personal relationships" (Domestic Relations Law, § 75-d, subd. 1, par. (b)). ¹

The inquiry is not completed merely by a determination that a jurisdictional predicate exists in the forum State, for then the court must determine whether to exercise its jurisdiction. There, too, the act guides the determination, commanding the court to consider whether...