Zwerling v. Zwerling

• Decision Date: 07 December 1995
• Citation: 167 Misc.2d 782,636 N.Y.S.2d 595
• Parties: Andrew ZWERLING, Plaintiff, v. Rachel ZWERLING, Defendant.
• Court: New York Supreme Court

Page 595

636 N.Y.S.2d 595

167 Misc.2d 782

Andrew ZWERLING, Plaintiff, v. Rachel ZWERLING, Defendant.

Supreme Court, Queens County.

Dec. 7, 1995.

Dikman & Dikman by Michael Dikman, Jamaica, for Plaintiff.

Sharyn M. Witlin, and Adam J. Edelstein, Brooklyn Heights, for Defendant.

DAVID GOLDSTEIN, Justice.

In this action, plaintiff moves to suspend child support payments which had been ordered by the court, upon the ground that defendant has not complied with the visitation arrangements set forth in the divorce decree. The plaintiff also requests that this court grant comity to child and spousal support orders issued by the Rabbinical Court of Israel, but not to child custody/visitation orders which were also issued by the Rabbinical Court. Defendant cross-moves to 1) vacate the portions of the divorce decree regarding equitable distribution, child support, and visitation; 2) order a hearing on the issue of equitable distribution and 3) compel plaintiff to provide defendant with a "Get"--a religious divorce in the Jewish faith. Defendant claims she was never served with the summons and complaint for divorce but is willing to submit to the jurisdiction of this court only for the purposes of the civil divorce and to have a new hearing on equitable distribution.

Plaintiff and defendant were married in New York on January 16, 1981. On September 10, 1983, daughter Ariella was born. Defendant claims that she, plaintiff, and Ariella moved to Israel in about 1987, with the intention of living there permanently. Although they purchased an apartment in Israel, plaintiff claims that he had no intention of permanently relocating there and had applied for permanent residency in that country only to obtain government benefits for defendant and Ariella. It appears that Mr. Zwerling returned to New York during 1987, and has lived here ever since. Defendant, an Israeli citizen, and Ariella, who is a citizen of both the United States and Israel, have remained in Israel and continue to reside there.

In September of 1989, during religious divorce proceedings initiated by plaintiff, the Rabbinical Court of Israel, which has jurisdiction over matrimonial matters, awarded custody of Ariella to the defendant and prohibited removal of the child from Israel without permission of the Rabbinical Court. On December 12, 1989, the Rabbinical Court ordered plaintiff to pay defendant $30,000 as a guarantee for alimony and child support payments, or $1,000 per month. Plaintiff did not follow through with the religious divorce at that time.

On August 17, 1990, plaintiff obtained a default judgment in this court, awarding him a judgment of divorce upon the ground of abandonment (Judgment, Gallagher, J.). The divorce decree awarded joint custody of Ariella and directed plaintiff to continue paying $1,000 per month in child support. The parties were also ordered to sell the apartment in Israel and to split the proceeds, when either Ariella reaches emancipation or defendant remarries. It appears from the Judgment of Divorce that this court was not made aware of the prior proceedings in Israel.

In March of 1993, plaintiff reinstated religious divorce proceedings in Israel. On June 16, 1993, the Rabbinical Court ruled that the parties were to obtain a religious divorce and ordered counseling for Ariella to renew her relationship with plaintiff. In November of 1993, the Rabbinical Court ordered the parties to negotiate a divorce and reduced the spousal and child support to $500 per month. In 1994, the Rabbinical Court issued several orders concerning Ariella's visitation with plaintiff in New York. On August 4, 1994, it reduced the plaintiff's alimony and child support to $100 per month, as a result of defendant's failure to comply with the Rabbinical Court's visitation orders. The appellate Rabbinical Court upheld the lower Rabbinical Court's support and visitation determinations. Both parties were represented by counsel on each occasion before the Rabbinical Court. The religious divorce in the Rabbinical Court is presently pending.

There are two forms of jurisdiction involved in matrimonial cases--in rem over the marital status and in personam over the individual spouse. The court may exercise in rem jurisdiction over the marital status (CPLR 314[1]; see, Renaudin v. Renaudin, 37 A.D.2d 183, 185, 323 N.Y.S.2d 145), provided one of the applicable provisions of the residency requirements of DRL § 230 is satisfied. (See, Carr v. Carr, 46 N.Y.2d 270, 273, 413 N.Y.S.2d 305, 385 N.E.2d 1234; Lacks v. Lacks, 41 N.Y.2d 71, 72-73, 390 N.Y.S.2d 875, 359 N.E.2d 384; Eckert v. Eckert, 34 A.D.2d 684, 312 N.Y.S.2d 183.) Once notice is properly served upon the defendant (see, DRL § 232) the court may enter a binding judgment of divorce, separation, or annulment (see, CPLR 105[p] ), but it may not enter a judgment adjudicating the economic, child custody, and child support rights of the parties. In personam jurisdiction must be acquired over the person pursuant to CPLR 301, 302, 313, or by consent in order to determine these issues. (See, Baron v. Baron, 75 A.D.2d 797, 797-98, 427 N.Y.S.2d 510; Renaudin v. Renaudin, supra, at 185, 323 N.Y.S.2d 145; Pitrowski v. Pitrowski, 97 Misc.2d 755, 758-59, 412 N.Y.S.2d 316.)

In the present case, plainly, plaintiff has met the residency requirements contained in DRL § 230(1) and the notice requirements of DRL § 232. The defendant did not appear and a default judgment for divorce was entered. Although defendant alleges she was never served, she does not challenge the court's in rem jurisdiction and accepts the judgment of divorce.

Defendant, however, does challenge the court's in personam jurisdiction (see, CPLR 5015[a][4] ) to adjudicate the equitable distribution, child support, and child custody provisions incorporated in the divorce decree. If service has not been properly effected, the court is without jurisdiction and "a default judgment must be unconditionally vacated." (Citibank v. Keller, 133 A.D.2d 63, 64-65, 518 N.Y.S.2d 409; see, DeMartino v. Rivera, 148 A.D.2d 568, 569, 539 N.Y.S.2d 38; Smith v. Wilson, 130 A.D.2d 821, 822, 515 N.Y.S.2d 146.) Thus, at issue here is the propriety and sufficiency of service, not in terms of in rem jurisdiction to adjudicate the marital status of the parties, but in personam, to determine economic issues, including equitable distribution, child custody and support and maintenance obligations.

The defendant was served pursuant to CPLR 313. Under CPLR 313, service outside the State of New York must be made in the same manner as service within the State. (McLaughlin, Practice Commentaries, McKinney's Cons. Law of N.Y., Book 7B, CPLR C313:2 at 427.) An exception to this statute is the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (20 U.S. Treaties 361, TIAS No. 6638 [1969]; see, McLaughlin, Practice Commentaries, McKinney's Cons. Law of N.Y., Book 7B, CPLR C313:2 at 428), to which the United States and Israel are signatories. This treaty, which supersedes state statutes pursuant to the supremacy clause of the United States Constitution (U.S. Const., art. VI § 2), requires service upon parties in a signatory nation to be made through a Central Authority designated by the signatory nation. (Convention on Service Abroad, supra, at ch. 1, art. 2-3.) The only exception to this rule that is applicable to the instant matter is contained in Article 10 of the Convention:

Provided the State of designation does not object, the present Convention shall not interfere with--

(a) the freedom to send judicial documents, by postal channels, directly to persons abroad;

(b) the freedom of judicial officers, officials, or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials, or other competent persons of the State of destination;

(c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials, or other competent persons of the State of designation.

Israel objected to paragraphs (b) and (c) and signed the treaty with the following reservation:

"b) The State of Israel, in its quality as State of destination, will, in what concerns Article 10, paragraphs b) and c), of the Convention, effect the service of judicial documents only though the Directorate of the Courts, and only where an application for such service emanates from a judicial authority or from the diplomatic or consular representation of a Contracting State."

In the instant matter, plaintiff sent the summons and complaint to the son-in-law of defendant's brother, in Israel, to personally serve the defendant. He did not make service through the Directorate of the Courts, as required by Israel in the treaty. Therefore, service under paragraphs (b) and (c) of Article 10 was improper.

Service under Article 10(a) was also improper here. The meaning of the word "send" in Article 10(a) and whether this encompasses service of process was discussed in several cases concerning Japan, also a signatory to the Convention, who had also objected to paragraphs (b) and (c) of Article 10.

In Ordmandy v. Lynn, 122 Misc.2d 954, 955, 472 N.Y.S.2d 274, the court concluded that, " * * * a liberal reading of 'send' to include effective service of legal process would vitiate the fundamental intent of the parties [expressed in the Hague Convention] to establish more formal modes of service * * * " Thus, since direct service upon a defendant, by registered mail, directed to him in Japan, was not authorized by paragraph (a) of Article 10, the Ordmandy court concluded that the Hague Convention did not authorize such service by mail.

In Reynolds v. Koh, 109 A.D.2d 97, 99, 490 N.Y.S.2d 295, the Appellate Division, Third Department, adhered to the principle discussed in Ordmandy and held that, since the Hague...