Weiss v. Weiss

• Citation: 958 N.Y.S.2d 311,2010 N.Y. Slip Op. 51671,29 Misc.3d 1202
• Decision Date: 17 August 2010
• Docket Number: No. 26821/08.,26821/08.
• Parties: Elizabeth Benson WEISS, Plaintiff, v. Bruce WEISS, Defendant.
• Court: United States State Supreme Court (New York)

29 Misc.3d 1202
958 N.Y.S.2d 311
2010 N.Y. Slip Op. 51671

Elizabeth Benson WEISS, Plaintiff,
v.
Bruce WEISS, Defendant.

No. 26821/08.

Supreme Court, Kings County, New York.

Aug. 17, 2010.

Philip Kamaras, Esq., Brooklyn, Attorney for Plaintiff.

Saul Edelstein, Esq., The Edelsteins, Faegenburg & Brown, New York, Attorney for Defendant.

JEFFREY S. SUNSHINE, J.

Upon the foregoing papers, defendant-husband Bruce Weiss (defendant) moves for an order: (1) pursuant to CPLR 3211(a)(2), dismissing the complaint of plaintiff-wife Elizabeth Benson Weiss (plaintiff), on the basis of lack of jurisdiction; or (2) in the alternative, pursuant to CPLR 510(3), changing the venue of this action to the District Court, Family Division, Clark County, Nevada.

Facts and Procedural Background

The parties were married in New York, New York, on April 12, 1986. Plaintiff and defendant resided in Brooklyn, New York throughout the marriage, although both parties admit that they physically separated several years ago. One child, Jessica, was born to the marriage, in 1991.

As relevant here, defendant commenced an action for divorce in the District Court, Family Division, of Clarke County, Nevada on or about May 20, 2008. In his verified complaint in the Nevada action, defendant allegedly stated that he had been a bona fide domiciliary of Nevada for more than six weeks prior to the commencement of the action.¹ On or about June 25, 2008, plaintiff found, taped to the door of her Brooklyn, New York residence, copies of defendant's Nevada summons and complaint. It is undisputed that plaintiff did not answer the complaint, nor otherwise make an appearance in the Nevada action. On or about August 29, 2008, plaintiff received, by mail, a final decree of divorce entered by the District Court, Family Division, of Clark County, Nevada on July 31, 2008.

Defendant submits the purported Nevada decree of divorce, which states, among other things, that:

Plaintiff, “having been personally served, and proof having been filed with this Court, and [plaintiff] having failed to answer the Complaint, or otherwise plead within the time allowed by law; the Default of plaintiff] was duly and regularly entered on July 31, 2008; and it appearing to the Court that the law pertaining to service of process on [plaintiff] has been fully complied with herein, and for good cause, the Court hereby finds:

That the Court has only in rem jurisdiction over [defendant] and the marriage; that this Court does not have personal jurisdiction over [plaintiff]; the parties' minor child, or the parties' property or debts; that all other issues must be addressed in New York; that [defendant] is entitled to an absolute Decree of Divorce from [plaintiff] on the grounds as set forth in [defendant's] Complaint for divorce on file herein ...”

Thereafter, on or about September 23, 2008, plaintiff commenced an action for declaratory judgment in this court, seeking a declaration that the Nevada decree of divorce is invalid, and that the parties are still husband and wife. Among other things, plaintiff's verified complaint alleges that defendant was not a bona fide domiciliary of Nevada, and that he did not meet the requisite residential requirements for a divorce in Nevada. Specifically, plaintiff alleges that defendant did not fulfill a minimum residency requirement of six consecutive weeks in Nevada prior to his filing a complaint for divorce. Plaintiff further contends that, during the period when defendant allegedly was “corporeally and physically” present in Nevada, he was actually present in New York—visiting his daughter, making court appearances, cohabiting with his long-time girlfriend, working at his Tasti D'Lite franchise, visiting his parents, and going to local doctors. Plaintiff further argues that during the period defendant was allegedly present in Nevada, he did not surrender his New York State driver's license, cancel his automobile registration, or terminate his automobile insurance. Moreover, plaintiff contends that defendant was not employed in Nevada, he did not open a bank account there, and he did not change the billing address of any of his credit cards from his New York address. According to plaintiff, there exists a real controversy of a justiciable nature between the parties as to whether the purported Nevada divorce decree obtained by defendant is valid, and whether the parties are still husband and wife. According to plaintiff, she has a valid and continuing interest in maintaining her marriage to defendant, including an interest in various assets that he may dispose of or transfer, on the basis of the Nevada divorce decree (e .g., he might change the beneficiaries of any of his ERISA retirement plans).

Issue was joined in this action by defendant's service of a verified answer on or about October 16, 2008. In his answer, defendant denies the substantive allegations listed in plaintiff's complaint, and he asserts an affirmative defense alleging that this court does not have jurisdiction to entertain plaintiff's action for declaratory judgment. Defendant further alleges that the instant “collateral attack” on the Nevada divorce decree should instead be filed and maintained in the State of Nevada.

The Parties' Contentions

In his motion, defendant argues that the Nevada decree of divorce is conclusive and that this court has no leeway to disregard, qualify, or depart from that court's order. According to defendant, a decree of divorce which is granted within the United States, by a court having jurisdiction to do so, is entitled to Full Faith and Credit under the United States Constitution in every court. Defendant also notes that an attack on the jurisdiction of a foreign decree is not permitted in New York unless it is permitted in the rendering state (i.e.Nevada). Further, defendant argues that the burden of showing the availability of the remedy rests upon the party seeking to make that attack (i.e., plaintiff). According to defendant, plaintiff has failed to assert or prove such authority.

In addition, defendant also contends that plaintiff has failed to properly allege or prove any fraud that would support a collateral attack on the Nevada court's jurisdiction. According to defendant, perjury and fraud as to domicile are usually not the basis for vacating or setting aside a final judgment, nor for making an attack on the rendering court, especially if there are no intervening rights of a third party involved (i.e., subsequent spouses). Defendant argues that, in the instant case, there has been no prejudice, there are no third parties, and there are no allegations of a lack of due process, since plaintiff had notice and an opportunity to be heard in the Nevada court.

Defendant also notes that plaintiff was served with process in New York, giving the Nevada court in rem jurisdiction. According to defendant, plaintiff could have hired counsel in New York or Nevada in order to make a special appearance to contest the residency jurisdiction in the Nevada court. However, rather than respond to the Nevada summons and complaint, defendant avers that plaintiff sat on her rights and did nothing, and should be estopped from making the instant belated application for relief.

Finally, defendant asserts that any factual questions relating to jurisdiction should be heard in Nevada, rather than New York. Defendant points out that the Nevada decree of divorce stated that proof had been filed sustaining the Nevada court's in rem jurisdiction. With respect to the evidence presented to the Nevada court, defendant avers that he had the opportunity to submit proof that he registered to vote in Nevada, obtained a Nevada drivers license, and had a lease for an apartment in Nevada. Among other things, defendant alleges that he received correspondence in Nevada, had Nevada cell phone and land-line telephone numbers, and resided in Nevada for six weeks. Defendant further argues that plaintiff has suffered no prejudice as a result of the Nevada divorce decree because she may still proceed in this court to obtain maintenance and/or distribution of marital property following the Nevada judgment of divorce. According to defendant, granting declaratory judgment to plaintiff under the circumstances would serve no useful purpose and would only preserve an admittedly “dead marriage.”

In opposition, plaintiff primarily argues that defendant was not domiciled in Nevada and, therefore, that he perpetrated a fraud on the Nevada court in order to obtain a divorce there. Plaintiff notes that, if the court finds in her favor, the issue of defendant's actual residence at the time of the Nevada divorce becomes an issue of fact for determination by a trier of fact. In this regard, plaintiff avers that, although a foreign divorce decree is ordinarily entitled to the full faith and credit given to the judgments of a foreign state under Article IV of the Constitution of the United States, a foreign divorce that is obtained by fraud, including fraudulently establishing residence, may be challenged in New York, and is subject to collateral attack. Plaintiff further notes that, contrary to defendant's claims, fraud in the procurement is not an exception to the definition of fraud, and such fraud could vitiate the court's jurisdictional foundation. Plaintiff maintains that her attack on jurisdiction, being made in New York, is proper. In addition, plaintiff maintains that her action for declaratory judgment was appropriately commenced pursuant to DRL § 236(B)(2)(a).²

Plaintiff also cites to Vaile v. Vaile (118 Nev 262 [2009] ) to show that Nevada courts have considered fraud in the purported establishment of residence as a valid means of overturning a divorce decree, thereby making it subject to attack in that state. According to plaintiff, since she has established that her action for declaratory judgment, based upon defendant fraudulently obtaining a divorce in Nevada, is proper, the next step is for the...