Van Everdingen v Van Everdingen

[*1] Van Everdingen v Van Everdingen 2009 NY Slip Op 51911(U) [24 Misc 3d 1247(A)] Decided on July 23, 2009 Supreme Court, Rockland County Weiner, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 23, 2009
Supreme Court, Rockland County

Frederick P. Van Everdingen, Petitioner,

against

Kathryn Van Everdingen, Respondent.



1033/09



Brown Burgoon & Hartnagel, P.C.

Attorneys for Petitioner

Gregory G. Hoover, Sr., P.C.

Attorney for Respondent

Alfred Weiner, J.

The parties to this proceeding settled their New Jersey divorce action by a stipulation of settlement dated July 8, 1996. In the stipulation, Petitioner agreed to pay Respondent the sum of $700 on a "...continuing and permanent..." basis, only to terminate upon the Respondent's death or remarriage. The stipulation was then incorporated but not merged into their Judgment of Divorce of that same date.[FN1]

Petitioner now seeks to change his financial obligation to the Respondent contending [*2]that his expenses exceed his income thereby causing him extreme hardship. A Net Worth Statement submitted by the now 62 year old unemployed Petitioner tends to support his claim.

Respondent opposes the application contending that the courts of New York State cannot exercise jurisdiction in this matter and, further, that Petitioner unsuccessfully sought the exact same relief in the courts of New Jersey - an allegation Petitioner refutes.

It is undisputed that at the present time neither party resides in the State of New Jersey. Petitioner resides in New York State and Respondent resides in the State of Arizona.

Due process requires that the court have some foundation for exercising it jurisdiction in a matter. If the defendant is outside the state, the provisions of CPLR §302 - the "long-arm" statute - control.

In order to sustain personal jurisdiction over a non-resident defendant in a matrimonial action Petitioner's claim for relief must have accrued under the laws of this state or this state must have been the marital domicile of the parties before their separation. CPLR 302(b); Sovansky v. Sovansky, 139 AD2d 724, 2nd Dept., 1988.

As in Sovansky, Petitioner's claim for relief herein did not accrue under the laws of New York. Petitioner seeks relief from a Stipulation of Settlement that was negotiated, drafted and executed in the State of New Jersey and then incorporated into a New Jersey Judgment of Divorce while the parties were residents of the State of New Jersey. In addition, the record fails to establish that New York was at any time, the marital residence of the parties. Consequently, for this Court to exercise in personam jurisdiction over the Respondent would violate the principles of due process. Sovansky v. Sovansky, supra; Kulko v. California Superior Ct., 436 U.S. 84, 98 S. Ct. 1690, 56 L. Ed. 2d 132, reh denied, 438 U.S. 908, 98 S. Ct. 3127, 57 L. Ed. 2d 1150.

Although Petitioner's attorney contends that "[T]his is not a matrimonial action, it is a post-divorce proceeding",[FN2] this Court finds that it is still without in personam jurisdiction of the Respondent since Petitioner has failed to demonstrate that Respondent, a non-domiciliary, is subject the jurisdiction of this Court. Accordingly, the petition is dismissed.

Dated:New City, NY

July 23, 2009

ENTER: [*3]

HON. ALFRED J. WEINER JSC

To:

Brown Burgoon & Hartnagel, P.C.

Attorneys for Petitioner

Gregory G. Hoover, Sr., P.C.

Attorney for Respondent Footnotes

Footnote 1: The Judgment of Divorce provides, in relevant part, that

"...the Separation Agreement [sic] executed between the parties be incorporated into this Judgment but shall merge in same....This agreement shall become a part of this Order,..."

It would appear that the Stipulation of Settlement was expressly intended not to survive the final judgment and merge therein. However, such was not the intent of the parties since the Stipulation of Settlement specifically provides, in relevant part, that

"...it... [is]...understood by and between the parties that this agreement shall survive and shall not be merged into any decree, judgment, or order of divorce or separation."

Footnote 2: April 9, 2009 Burgoon affirmation, page 2 / par.4