R.L. v D.L.

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[*1] R.L. v D.L. 2006 NY Slip Op 51119(U) [12 Misc 3d 1169(A)] Decided on February 23, 2006 Supreme Court, Nassau County Balkin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 23, 2006
Supreme Court, Nassau County

R.L., Plaintiff,

against

D.L., Defendant.



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Ruth C. Balkin, J.

Upon the foregoing papers and for the following reasons, the motion by Plaintiff R.L. (hereinafter "Mother") and the cross motion by Defendant D.L. ("Father"), for certain relief, are hereby respectfully referred to the Nassau County Family Court.

The following facts are essentially undisputed. On September 16, 2000, Mother and Father, who are New York residents, were married in a civil ceremony while in Las Vegas, Nevada. At the time of said marriage, the Mother believed that she had been divorced from her prior husband, one Mitchell B., with whom she has a nine-year old child named, Tony B., as they had executed a Stipulation Agreement settling their New York divorce action on January [*2]19, 2000. However, the B. marriage was in reality not dissolved until the issuance of a Judgment of Divorce dated December 21, 2000, which incorporated but did not merge with the Agreement. This notwithstanding, the Mother and Father lived as husband and wife with Tyler, the son of the prior "B. marriage," and on May 15, 2001, they had the child subject to this proceeding, D. L. (5).

Difficulties apparently ensued between the couple in 2004, prompting the Mother a practicing attorney to commence custody, family offense and support proceedings against the Father in Nassau County Family Court on January 25, 2005. A Temporary Order of Protection (Pessala, J.) was issued in the Mother's favor. There was Child Protective Services involvement with the family. On August 26, 2005, the Family Court (Dwyer, S.M.) entered a Temporary Order of Support ordering the Father to pay temporary support and child care expenses in the sum of $486 biweekly to the Mother. The Father was apparently current in his child support payments. Those proceedings were, however, eventually either withdrawn or dismissed by the Family Court.

Shortly thereafter, on or about September 14, 2005, the Father commenced an Action for Annulment against the Mother in the District Court of Clark County in the State of Nevada, on the grounds that the Mother was married to someone other than him at the time of their marriage, and had not cohabited with her since learning the truth. Despite service upon her as found by the District Court in Nevada, the Mother failed to answer or appear on that action and a default was declared against her on October 10, 2005. The Eighth Judicial District Court of Clark County, State of Nevada (Page, J.) then issued a Decree of Annulment on November 15, 2005, declaring the Lino marriage to be "null and void and of no effect," and restoring each of the parties to the status of a "single unmarried person." Relevantly, the Nevada Decree also adjudged and decreed that "each party be awarded his or her property as determined in accordance with Nevada law * * * [and] that each party be held responsible for any liabilities, debts or obligations incurred in their own name of associated with property awarded to him or her."

Following the commencement of the Nevada action but prior to its Decree of Annulment, the Mother also commenced the instant action against the Father to declare the nullity of a void marriage on October 26, 2005, in Nassau County Supreme Court, seeking the annulment of the marriage, necessaries for the living expenses of the parties' child D., and recovery of chattel, to wit: a 2004 Nissan Sentra automobile. This Court scheduled a preliminary conference on this matter, and the parties declined to enter into a discovery schedule due to the pendency of the Family Court proceedings. There was an agreement to the continuation of child support by the Father, who, in the interim, also returned the Nissan automobile to the Mother.

Simultaneously with this action, there are two contentious custody proceedings currently pending against the Mother in Nassau County Family Court, with involvements by CPS, TASC and a Law Guardian. On November 15, 2005, the Mother's former husband, M. B., commenced a custody proceeding against her in Family Court, seeking to modify the joint custody Agreement between the parties to sole custody to him of their infant, Tony. On November 18, 2005, the Father also commenced a custody and visitation proceeding against the Mother in Family Court, raising similar allegations of maternal unfitness as herein. Those proceedings are currently sub judice with an appearance scheduled for the week of February 27, 2006.

By Order to Show Cause returnable December 13, 2005, the Mother moves for an order: (1) consolidating the Family Court support proceedings with this action; (2) granting her custody of the parties' child; (3) awarding her child support and the proportionate share of child related [*3]expenses pursuant to the Child Support Standards Act; and (4) directing the Father to immediately return her Nissan automobile. The Mother argues that the Supreme Court is the proper venue to air the issues of custody and necessaries, and that she should be D.'s custodian because, among other things, the Father has a history of mental illnesses, drug and gambling addictions incompatible with the best interests of the child.

In opposition to the motion, the Father argues that it is the Mother who is an inappropriate custodian suffering from alcoholism, bipolar disorder and parenting failures, and cross-moves, by Notice of Cross Motion, for an order, inter alia, dismissing this proceeding outright in favor of a reference and consolidation with the Family Court's custody proceedings currently pending between these parties and the Barnett family (Index No. V-12301-05/05A), on the grounds that they involve similar factual and legal issues as well as parties and witnesses. This Court agrees.

It is well settled that the Supreme Court enjoys a constitutionally as well as statutorily guaranteed concurrent jurisdiction over any matter within the jurisdiction of the Family Court (see NY Const, art VI, § 7; Family Court Act §§ 651, 652; Kagen v Kagen, 21 NY2d 532, 537; Matter of Renzulli v McElrath, 286 AD2d 335, 336; Vásquez v Vásquez, 26 AD2d 701). It is for that reason that referrals from Supreme Court to Family Court of ancillary issues are appropriate under certain circumstances (see Domestic Relations Law § 251; Matter of Kubista v Kubista, 11 AD3d 743, 744; 12 Scheinkman, New York Law of Domestic Relations § 25.3, at 409-410). Specifically, Family Court Act § 115(b) provides that the family court has jurisdiction "over applications for support, maintenance, a distribution of marital property and custody in matrimonial actions when referred to the family court by the supreme court." That court also has exclusive original jurisdiction over the support of children born out-of-wedlock, as here (Family Court Act § 115[a][iii]).

Applying these principles to the matter at bar, the Father has sufficiently established that a referral of this proceeding to the Family Court is warranted. It should be initially noted that the Mother does not challenge the existence and validity of the Nevada Decree of Annulment of November, 2005, which declared the nullity of the parties' marriage and its retention of jurisdiction regarding property issues. In light of that Decree, this Court does not appear to be the proper forum to raise any issues of marriage, necessaries or distribution of property between the now unmarried parties. Nor should this Court be involved in litigation over the custody and support of her children when there are custody proceedings currently pending in Family Court, a court uniquely equipped to deal with the serious and myriad of issues presented by the Father against the Mother. The matters should not be heard in different fora at the whim of the Mother.

Moreover, the Family Court is fully familiar with these parties as a result of the pendency of the other custody proceeding between the Mother and Mr. B., which involves the subject child's half-brother, Tony, who lives with the Mother and D. Were this matter not transferred, there would basically be two trials with the same parties, same witnesses, same attorneys cross-examining, possibly the same Law Guardian, and the same CPS workers being questioned. Since the Mother may obtain full redress of her custody and support rights in Family Court (see Family Court Act §§ 115[b], 464), judicial economy, the best interests of the child, and the convenience of the parties and witnesses shall be better served by a referral to Family Court.

Accordingly, the Mother's motion is hereby referred to the Family Court, and the Father's cross-motion is granted in part and also referred insofar as it seeks custody and support of the parties' child. The remaining causes of action are hereby dismissed without prejudice to [*4]reinstitution in the proper forum. The Mother's attorney shall file a copy of this referral order with the Clerk of the Nassau County Family Court within ten days from the date below (see Domestic Relations Law § 251). The Nassau County Matrimonial Clerk shall forthwith transmit all papers, documents and minutes, exchanged and filed by the parties in this proceeding, to the Family Court with this referral order (22 NYCRR 202.16[a], [j]). This constitutes the decision, order and judgment of the Court. ENTER:

Dated: February 23, 2006 ________________________________________________

Mineola, New York J.S.C.

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