Robert G. v Noelle G.
Annotate this CaseDecided on December 3, 2009
Supreme Court, Nassau County
Robert G., Plaintiff
against
Noelle G., Defendant
XX
Counsel for plaintiff: Keith, Shapiro & ford (516) 222-0200;
Counsel for defendant: Charles J. Fine, Esq. (212) 354-0966.
Anthony J. Falanga, J.
This is a motion by the defendant wife for an order pursuant to CPLR 510(3) changing venue from Nassau County to Westchester County on the grounds that the convenience of material witnesses will be promoted by the change in venue.
The parties were married on April 18, 1998. There are two children of the marriage, born August 21, 1998 and April 21, 2002. From the date of the parties' marriage until August 14, 2002, the parties and their two children resided in Eastchester, in Westchester County with the wife's mother in a residence owned by the wife's mother. According to the wife, the husband abandoned her on August 14, 2002. Thereafter the husband resided for some period of time in Nassau County with a woman with whom he has an out-of-wedlock child. The wife and the parties' children moved to Dobbs Ferry New York. The husband resided with the wife and children in the Dobbs Ferry residence for a two and a half week period in April and May 2008. The husband's January 15, 2009 driver's license states his address is the wife's Dobbs Ferry residence.
On or about February 21, 2003, the husband commenced a prior action for divorce in Nassau County. Pursuant to an order dated June 18, 2003, venue of said action was transferred to Westchester County by the undersigned Justice. Thereafter, the husband also commenced another action for divorce against the wife in Westchester County. Both actions were dismissed. The wife has served an answer in the above captioned action seeking dismissal of the within action. She has not interposed a counterclaim for divorce.
The husband became a month-to-month tenant of an apartment in a private residence in Massapequa on or about August 1, 2009. His rent is $900.00 a month. Thereafter, he commenced the within action for divorce in Nassau County. His complaint asserts three causes of action, to wit: actual abandonment; social abandonment; and adultery. All the causes of action allegedly occurred in Dobbs Ferry in Westchester County. [*2]
In support of the within application, the wife alleges that in order to defend the issue of grounds she will have to call various witnesses who reside and work in Westchester County, to wit: the wife's mother; who resides and works in Westchester County, and H. A. who resides and works in Westchester County. The wife has summarized the nature of the testimony she intends to elicit from said witnesses. She states that each witness will testify that the husband resided in the Dobbs Ferry premises for two and a half weeks and never resided there after May 2008. Further, the witnesses will deny that the husband asked them to intercede on his behalf on issues relating to the children because the wife would not speak to him. The wife asserts that the witnesses will be inconvenienced if they must travel to Nassau County to testify.
In opposition to the within motion, the husband alleges the following: he moved to an apartment in Massapequa on August 1, 2009; he was a resident of Nassau County at the time of the commencement of the action; all issues of custody and child support have been resolved by the Westchester Family Court; he will admit that he never resided in the Dobbs Ferry residence after May 2008; and the wife's mother does not work and can drive to Nassau County with the wife.
The wife replies that her mother is employed and would be inconvenienced if forced to testify in Nassau County.
The husband's second cause of action sounding in social abandonment is devoid of merit (see, Davis v Davis, 2009 WL 3873826). Further, with regard to the cause of action sounding in actual abandonment, the husband admits he did not reside in Dobbs Ferry after May 2008. Accordingly, it appears that none of the three witnesses identified by the wife will have relevant testimony to offer at trial.
Nevertheless, the interests of justice require that venue of the action be transferred to Westchester County.
Both parties indicate that custody and child support issues have been adjudicated in the Westchester Family Court, but neither party has provided copies of any orders issued by that court. The husband's prayer for relief set forth in his verified complaint seeks a judgment of divorce incorporating two Westchester County "F" docket support orders, but makes no mention of any "V" docket custody order. The husband's prayer for relief in this action asks that the judgment of divorce grant custody to the wife and grant him visitation pursuant to a detailed schedule set forth in said prayer for relief. This Court cannot ascertain whether or not the visitation sought by the husband reflects the terms of any existing Westchester County Family Court order. Accordingly, it appears that there may be visitation issues raised in the context of this divorce action. Even if the Westchester County Family Court has issued final orders of custody and visitation identical to the relief sought by the husband in his within complaint, enforcement or modification issues, often arise during the pendency of the action for divorce.
The parties' children have resided in Westchester County their entire lives and clearly, issues of custody and visitation, which may arise in the context of a divorce action should be determined in Westchester County, particularly in the event an attorney must be appointed for the [*3]children or a forensic evaluation is required (see, Arcuri v Osuna, 41 AD3d 841).
In addition, the Court notes that the husband has "struck out twice" in the Supreme Court Westchester County. His acquisition of a month-to-month rental unit in Nassau County on August 1, 2009 at a cost of $900.00 a month, appears designed to establish predicate residency and his commencement of an action for divorce in Nassau County constitutes improper forum shopping.
Based upon all of the foregoing, the motion is granted. Venue of the action is transferred to Westchester County. Within 15 days of the date of this order, the wife shall serve a copy of this order upon the Office of the Nassau County Clerk. Upon receipt thereof, the Nassau County Clerk shall forward all papers in the above captioned action to the Office of the Clerk of Westchester County for assignment of the action to a Justice of the Supreme Court, Westchester County under a Westchester County Supreme Court index number.
This constitutes the decision and order of the Court.
E N T E R:
_________________________
Anthony J. Falanga, Justice
Supreme Court, Nassau County
Dated: December 3, 2009
Mineola, NY
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