Hanjis v Hanjis
Annotate this CaseDecided on October 3, 2011
Supreme Court, Queens County
Joanne Hanjis, Plaintiff,
against
Hercules Hanjis, Defendant.
14074/2009
Appearances of Counsel:
Mielo & Stasko, LLP, Counsel for Plaintiff
Del Vecchio & Reanse, LLP, Counsel for Defendant
Pam Jackman Brown, J.
Recitation as required by CPLR § 2219(a), of the papers considered in review of the Order to Show Cause for an order (1) pursuant to CPLR 3211(a) 1, 2, and 5 dismissing the complaint which seeks a judgment of divorce on the grounds that the parties have previously been divorced by a judgment made and entered in the courts of Greece; and (2) granting Defendant such other and further relief as to the court may seem just and proper.
PapersNumbered
Order to Show Cause and Affirmation ...................................................1-2
Exhibits Annexed to Order to Show Cause ................................................3a-3d
Affirmation in Opposition.........................................................................4
Exhibits Annexed to Affirmation in Opposition........................................5a-5b
Reply Affirmation......................................................................................6
Plaintiff's Memorandum of Law...............................................................7
Exhibits Annexed to Memorandum..........................................................8a-8b
Upon the foregoing cited papers, the Decision/Order on the Court is as follows:
The instant matrimonial proceeding is the second matrimonial proceeding commenced in Queens County, New York, seeking a dissolution of the marriage and resolution of ancillary issues between these parties. Plaintiff, Joanne Hanjis, commenced the first proceeding with a Summons with Notice on December 23, 2004. On December 20, 2005, the first matrimonial [*2]proceeding was dismissed for lack of jurisdiction pursuant to New York Domestic Relations Law § 230. On May 28, 2009, Plaintiff commenced the instant matrimonial proceeding with a Summons with Notice in New York State, Queens County and Defendant was served with the Summons with Notice in the instant proceeding on June 5, 2009. However, on June 1, 2009, Defendant, Hercules Hanjis, commenced a divorce proceeding in Greece. On March 4, 2011, the Athens Multi Member Court of First Instance issued a decision declaring the dissolution of the marriage between the parties.
On June 2, 2011, Defendant files the instant Order to Show Cause seeking dismissal of the instant matrimonial proceeding pursuant to CPLR 3211(a)(1), (2) and (5) on the grounds that the parties were divorced by a judgment made and entered in the courts of Greece. Plaintiff opposed the motion. Defendant filed a reply affirmation. The motion was fully submitted.
Upon the papers, the court makes the following findings and orders.
The Court notes that the parties have commenced several matrimonial proceedings, in both New York and Greece. A review of the record indicates that another prior divorce proceeding was commenced in Greece May 2004 by Defendant but the action was withdrawn February 2005. During these dates, Plaintiff commenced a matrimonial proceeding in Queens County on December 23, 2004 and it was dismissed on December 20, 2005 for lack of jurisdiction.
The parties entered into a written agreement on February 1, 2006, regarding issues of property, their children and maintenance and/or support. In May 2007, Plaintiff commenced a divorce proceeding in Greece. In May 2008, Plaintiff commenced an action in Supreme Court, Queens County to enforce the written agreement, dated February 1, 2006. Additionally, in November 2008, Defendant commenced an action for divorce in Greece. On May 7, 2009, the parties executed a second written agreement in the Greek matrimonial proceeding and subsequently withdrew their respective divorce proceedings in Greece. On July 9, 2009, Plaintiff's enforcement proceeding was discontinued on consent. Plaintiff commenced the instant proceeding on May 28, 2009. Defendant commenced a matrimonial proceeding in Greece on June 1, 2009.
On or about October 30, 2009, Defendant filed a Notice of Motion seeking: (1) the dismissal of the instant proceeding pursuant to CPLR 3211(a)(2) and (8), CPLR 302(b) and DRL § 230 for lack of jurisdiction; or in the alternative, (2) dismissal pursuant to CPLR 327(a) on the grounds of forum non conveniens, or in the alternative (3) judicial estoppel or unclean hands; or in the alternative, (4) dismissal on the grounds that there was a prior action pending in Greece prior to the commencement of the instant proceeding; (5) the imposition of sanctions upon Plaintiff and/or her counsel for frivolous conduct in commencing and prosecuting the instant proceeding; and (6) granting Defendant other relief as may be just and proper. Plaintiff opposed the motion. On December 20, 2010, the Honorable Sidney Strauss directed that a hearing must be held to determine the motion. The parties were directed to contact the Clerk of the court to schedule a hearing date. The hearing has been stayed by this Court pending the determination of the instant motion.
The New York Court of Appeals has held that a "divorce action may lie in New York only if the parties are still married" (Gotlib v Ratusky, 83 NY2d 696 [1994]). In the instant [*3]matter, the Athens Multi Member Court of First Instance entered a decision dissolving the marriage between the parties. While Plaintiff argues that the instant matrimonial proceeding was commenced prior to the Greek action, the Court declines to apply the first-in-time rule in the instant matter. Notably, The Greek action was commenced four days after Plaintiff commenced the instant matrimonial proceeding in New York. However, Defendant was served with the Summons with Notice in the instant proceeding four days after he commenced the Greek action in June 5, 2009. Moreover, since 2004, the parties have availed themselves of the legal systems in both New York and Greece, ping ponging between both jurisdictions as evinced by the prior proceedings between the parties.
Plaintiff further opposes the motion on the grounds that pursuant to Greek law, a marriage may only be dissolved by a divorce, which is established by an irrevocable court decision. Plaintiff further argues that she filed an appeal of the Greek decision; thus the Greek decision is not an irrevocable decision and the parties are not divorced. Defendant argues that until the Greek courts consider and rule on the merits of Plaintiff's appeal, the judgment of divorce stands.
New York courts have recognized judgments rendered in foreign counties under the doctrine of comity, "which is, the equivalent of full faith and credit given by the courts to judgments of our sister States" (Greschler v Greschler, 51 NY2d 368, 376 [Ct App 1980]). "It is axiomatic that comity should be extended to uphold the validity of a foreign divorce decree absent a showing of fraud in its procurement or that recognition of the judgment would do violence to some strong public policy of the state" (Farag v Farag, 4 AD3d 502, 504 [2nd Dept 2004]). To invoke the public policy exception to the doctrine of comity, it must be demonstrated that the decree violates fundamental principles of justice. Foreign judgments should be upheld unless enforcement would result in the recognition of an immoral, vicious or wicked transaction, which is shocking to the prevailing moral sense (Greschler at 377).
In the instant matter, Plaintiff does not deny that she was timely served in the Greek action or that she retained counsel to represent her in the Greek action. While Plaintiff argues that her attorney in the Greek action appeared to contest jurisdiction, a review of the Greek decision indicates that Plaintiff's counsel appeared for a "postponement petition" and made no objection to jurisdiction. Furthermore, the New York action was served after the commencement of the Greek action. There is no showing that Defendant was aware of the yet another filing in New York prior to his commencement in Greece. Therefore, the fraud exception to the doctrine of comity is not applicable in the instant matter.
Plaintiff further argues that she is entitled to receive a maximum of one-third of the marital assets and may proceed in an action against Defendant in a Greek proceeding to receive her entitled share. But Plaintiff acknowledges that the New York assets are not subject to equitable distribution under Greek law and claims that if this Court upholds the Greek decision, Defendant would retain all of the parties' New York assets. Plaintiff argues that such a result would violate New York public policy and offend our notions of due process entitlements. The Court finds that the notion that Plaintiff would receive a maximum of one-third of the marital assets does not violate the public policy of New York State. The underlying theory of the equitable distribution law of New York State is that the parties receive their equitable and fair share of the marital assets, considering the needs and circumstances of the parties (see Rodgers v [*4]Rodger, 98 AD2d 386 [2nd Dept 1983]). Therefore, equitable distribution of the marital property need not be an equal division. Therefore, if this Court should find that Plaintiff should be awarded an equitable share of one-third division of the marital property, this determination does not in and of itself violate the public policy of New York. This argument is without merit since the parties of themselves are playing the game of forum shopping with their multiple actions in both jurisdictions.
The existence of the Greek judgment of divorce does not prevent Plaintiff from seeking equitable distribution of the New York marital assets. New York Domestic Relations Law § 236 (B)(5)(a) permits the parties to bring an action seeking equitable distribution of marital property following a foreign judgment of divorce. While New York courts frown upon forum shopping and the bifurcation of divorce and equitable distribution proceedings, the parties are not per se estopp from commencing an action for equitable distribution where the claims were not actually litigated or could not have been litigated in the prior divorce proceeding. (See, O'Connell v O'Corcoran, 1 NY3d 179 [Ct App 2003]).
Plaintiff, circularly, argues that Greek courts are not empowered to distribute the New York assets. Wherein the New York assets are not distributed by the Greek Courts, any rights the parties have to the New York assets are reserved for further litigation in New York. However, the equitable distribution rights in New York marital assets does not affect the validity nor divest this Court from accepting the foreign divorce decree.Accordingly, Defendant's motion to dismiss is granted.
Dated: October 3, 2011So Ordered:
___________________________
Pam Jackman Brown, JSC
Courtesy Copy Sent to:
Mielo & Stasko, LLP
Attorneys for Plaintiff
61 Chichester Road
Huntington, NY 11743
Del Vecchio & Reane, LLP
Attorneys for Defendant
1100 Franklin Avenue, Suite 202
Garden City, NY 11530
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
