Scanlon v Scanlon

[*1] Scanlon v Scanlon 2013 NY Slip Op 51573(U) Decided on September 27, 2013 Supreme Court, New York County Cooper, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 27, 2013
Supreme Court, New York County

Preston Payne Scanlon, Plaintiff,

against

Todd Thomas Scanlon, Defendant.



305094/2013



For the Plaintiff

Drexel LLC

By Orrit Hershkovitz, Esq.

220 East 42nd Street, 29th Floor

New York, NY 10017

Tel. (212) 231-2682

For the Defendant

Stein & Ott LLP

By Lara Ott, Esq.

305 Madison Avenue, 47th Floor

New York, NY 10165

Tel. (212) 867-7770

Matthew F. Cooper, J.

The plaintiff ex-wife, a resident of the state of Florida, has commenced a post-judgment proceeding in this court to enforce a United Kingdom judgment of divorce. The defendant ex-husband, who states he is returning to the United Kingdom after having lived in New York for two years, opposes enforcement on a number of grounds, the first being that New York is not the proper forum for the proceedings.

Before the court are two motions by the ex-wife. The first, designated Motion Sequence [*2]1, concerns recognition of the foreign judgment and the enforcement of its provisions, particularly spousal and child support. The second motion, designated Motion Sequence 2, concerns matters related to the enforcement proceeding itself. Also before the court is the ex-husband's cross-motion to Motion Sequence 2, in which he seeks dismissal of the proceeding.

Consolidation of the Motions

Motion Sequence 1 was brought by notice of motion and made returnable in the Motion Submissions Part of this court. On the return date, the motion was referred to this part for argument. The ex-husband appeared pro se, submitting, in lieu of opposition papers, a collection of unsigned, unsworn documents, along with various spreadsheets and emails. Since his papers were clearly improper (see CPLR 2101[FN1]), the court informed the ex-wife's counsel that reply papers were not necessary. The motion was marked submitted and the court began rendering its decision.

Thereafter, the ex-wife brought Motion Sequence 2 by Order to Show Cause seeking related relief. The ex-husband, now represented by counsel, properly opposed the motion and filed a cross-motion. Motion Sequence 2 was returnable on June 26, 2013, at which time the ex-husband requested leave to file proper opposition papers to Motion Sequence 1. The court allowed the ex-husband to submit proper papers on the condition that he pay $15,000 toward the ex-wife's counsel fees. Having done so, Motion Sequence 1 was then fully briefed and resubmitted. Because the two motions and cross-motion are related, the court consolidates them for disposition.

Background & Relief Sought

The parties were divorced in 2007 in England, but since then the ex-wife and the parties' five children — ages 14, 14, 16, 17 and 18 — have relocated to Coral Gables, Florida where she is a high school teacher. The ex-husband still owns a home in England, but when this action was filed he worked for Bank of America Merrill Lynch in Manhattan and lived on the Upper West Side. Their judgment of divorce provided that the ex-husband would pay child and spousal support subject to certain termination events. One such event, which would terminate spousal support, is the ex-wife's cohabitation with an unrelated male for three consecutive months ("the cohabitation clause").

Subsequently, while the ex-husband still lived in the United Kingdom ("the UK"), he sought downward modification of his spousal and child support obligations in the UK courts. After negotiations between the parties, the UK court adjusted the ex-husband's obligations so [*3]that he was required to pay monthly spousal support in the amount of 13.33% of his monthly net salary and 10% of any net bonus he receives, as well as monthly child support in the amount of 26.65% of his monthly net salary and 20% of any net bonus he receives. As part of effecting this order, the ex-husband must provide pay stubs and tax returns — be they United States W2 forms or the UK equivalent — on a recurring basis.

In Motion Sequence 1, the ex-wife seeks an order (1) granting summary judgment recognizing the parties' divorce decree and modification order granted in the UK ("the UK judgment") and converting the UK judgment to judgment of this court; (2) enforcing said judgment such that (a) the ex-husband must provide proof of his income pursuant to the UK judgment from November 1, 2009 to present, (b) the ex-husband must pay child and spousal support arrears accrued since November 1, 2009, (c) the ex-husband must re-commence and continue to fulfill his obligations under the UK judgment; (3) granting the ex-wife a money judgment for said arrears; (4) executing an income deduction order both for the arrears and for his prospective child and spousal support obligations under the UK judgment; (5) directing the ex-husband to pay his pro rata share of the children's college expenses; and (6) awarding $30,000 as and for the ex-wife's counsel fees.

In Motion Sequence 2, the ex-wife seeks an order (1) that the ex-husband advance her $100,000 as security for future support payments, (2) enjoining the ex-husband from "removing, withdrawing, secreting, hiding, transferring, selling, assigning, hypothecating, mortgaging, encumbering or causing liens or judgments or lis pendens or other encumbrances to be placed upon" any of his assets pending determination of the issues related to this enforcement proceeding, (3) directing the ex-husband to provide at least 30 days notice of an address change, (4) compelling the ex-husband to respond to a subpoena served on him April 23, 2013, and (5) directing the ex-husband to pay additional counsel fees. The ex-husband cross-moves for an order (1) dismissing this action on the basis of forum non conveniens, (2) staying the other branches of Motion Sequences 1 and 2, and (3) quashing the subpoena served upon him on April 23, 2013.

Discussion

I. Defendant's Cross-Motion to Dismiss

As a threshold issue, the court will determine the ex-husband's cross-motion to dismiss based on forum non conveniens before addressing the substantive portions of the ex-wife's two motions. See Farber v Stockton, 128 Misc 2d 560, 563 (Sup Ct, NY County 1985). The ex-husband contends that New York State is an inconvenient forum in which to hear this case, so much so that the court ought to dismiss the action altogether. He bases this argument on certain facts: the judgment was granted in the UK, the ex-wife and children live in Florida, the ex-husband owns a home in the UK to which he was planning to return as of August 2013, and during the marriage, the parties lived in Florida and the UK, but never in New York. Thus, he concludes "New York is an improper, inconvenient and unnecessarily expensive forum for this action. . . . [T]he only possible forum for Plaintiff's Motions is the UK Court system or . . . possibly the Florida Courts." Def. Aff., Notice of Cross-Motion at 2.

At the court's request, the ex-husband clarified this last statement in a supplemental affidavit dated July 23, 2013. In that affidavit, he states as follows: I voluntarily consent to personal jurisdiction in the UK . . . I do not voluntarily consent to personal jurisdiction in the Florida Courts . . . However, since the plaintiff and our five children reside in Miami-Dade County, Florida and since I will reside on a full-time basis [*4]in the UK as of mid-August, if this Court determines that the UK is not the appropriate jurisdiction and forum for the Pending Motions and instead dismisses this action without prejudice and with leave for plaintiff to re-file in Florida, I will not oppose the jurisdiction of the Miami-Dade County, Florida Courts as to the subject matter of the Pending Motions so long as UK law is applied and considered . . . .

Supp. Aff. of Defendant at 1. Of course, the issue of whether the UK is or is not the appropriate forum for this matter is not before this court; this court must merely decide whether the action brought in New York should be dismissed based on the theory of forum non conveniens. His statement that he will not oppose jurisdiction in Florida is therefore disingenuous, since it is conditioned upon this court making determinations it is not in the position to make.

Although it has been the ex-wife's practice to bring enforcement proceedings primarily where the ex-husband resides, she argues that her ex-husband's planned move to the UK does not make New York an inconvenient forum. Even if he has moved back, she states, bringing the case in the UK would require her to re-file and travel there, whereas if the case were in New York or Florida, the ex-husband would have to travel either way, and since the case is already in New York, it is most convenient to keep it here.

New York's Civil Practice Law and Rules ("CPLR") 327 states: (a) When the court finds that in the interest of substantial justice the action should be heard in another forum, the court, on the motion of any party, may stay or dismiss the action in whole or in part on any conditions that may be just. The domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action. (b) Notwithstanding the provisions of subdivision (a) of this rule, the court shall not stay or dismiss any action on the ground of inconvenient forum, where the action arises out of or relates to a contract, agreement or undertaking to which section 5-1402 of the general obligations law applies, and the parties to the contract have agreed that the law of this state shall govern their rights or duties in whole or in part.

This statute codifies the common law doctrine of forum non conveniens used by courts "to justify . . . stay or dismissal in situations in which it was found that, on balancing interests and conveniences of the parties and the court, the action could better be adjudicated in another forum." Silver v Great Am Ins Co, 29 NY2d 356, 360 (1972)(quoting Smit, Report on Uniform Interstate and International Procedure Act, Thirteenth Annual Report of NY Judicial Conference, 1968, at 136). According to the Court of Appeals in Silver, "the doctrine rests, in large part, on considerations of public policy'" and exists to prevent plaintiffs from choosing an inconvenient venue "with the purpose of unduly burdening or harassing a defendant." 29 NY2d at 361, 360.

When determining whether to dismiss a case based on forum non conveniens, "[i]mportant considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained." Gulf Oil Corp v Gilbert, 330 US 501, 508 (1947).

However, a party's residence in the state where the action was brought does not preclude [*5]a court from dismissing the case; "[i]ts application should turn on considerations of justice, fairness and convenience and not solely on the residence of one of the parties. Although such residence is, of course, an important factor to be considered, forum non conveniens relief should be granted when it plainly appears that New York is an inconvenient forum and that another is available which will best serve the ends of justice and the convenience of the parties." Silver, 29 NY2d at 361; see also CPLR 327. Finally, "the action will not be dismissed unless a suitable alternative forum is available to the plaintiff. . . . [T]he suit will be entertained, no matter how inappropriate the forum may be, if the defendant cannot be subjected to jurisdiction in other states." Restatement (Second), Conflict of Law, § 84(c).

The court finds much of the ex-wife's argument persuasive: she filed the action where the ex-husband lived at the time. The ex-husband may have or will at some point move back to the UK, but a statement of his intentions is insufficient to meet his burden to show that New York is an inconvenient forum. Since the parties do not live in the same city, any forum will require travel of one party. If residence in a state does not bar a finding of forum non conveniens, non-residence should not do the opposite. On the other hand, assuming that the ex-husband has moved to the UK, New York is inconvenient in that both parties must travel a significant distance to litigate the action. Thus, it is incumbent upon this court to see if there is a more convenient forum available to the plaintiff.

Florida certainly appears to be that forum. The ex-wife lives there. The children live there. The substance of the motions pertain to support for children in Florida and alleged cohabitation in Florida. However, the ex-husband stated in his supplemental affidavit that should this action be dismissed and should the ex-wife subsequently re-file in Florida, he would yet again contest jurisdiction. He says he will only consent to Florida jurisdiction if this court determines that the UK is an improper forum, an issue which this court cannot determine because the issue has not been presented for determination. In other words, if this court dismissed this action based on forum non conveniens — the issue that is before the court — the ex-wife would likely re-file her motion in Florida, only to be served with another motion to dismiss and have resolution of the merits of her application again be delayed.

As stated, one purpose of forum non conveniens is to prevent plaintiffs from filing in a forum "with the purpose of unduly burdening or harassing a defendant." Silver, 29 NY2d at 360. This was not the reason the ex-wife chose New York; she merely sought to enforce the ex-husband's spousal and child support obligations in the state where he lived. Instead, it appears that the ex-husband is turning the doctrine of forum non conveniens on its head, relying on it to get the forum that he wants. This creates more inconvenience for everyone.

While New York is a suitable forum for this action, one branch of Motion Sequence 1 requires more discussion: the ex-wife's request to modify the UK judgment and order the ex-husband to pay a portion of the children's college costs. The UK judgment does not require the ex-husband to pay this cost, but the ex-wife argues the court should modify the terms of the judgment in light of the fact that his monetary contribution would determine the ease with which the parties' five children (ages 18, 17, 16, 14 and 14) can attend college. The ex-husband opposes the ex-wife's motion in its entirety, but he does not explicitly address this request. However, he attaches documents indicating his willingness to contribute voluntarily, including a statement for their 17 year-old from the "Florida Pre-Paid College Fund."

Domestic Relations Law ("DRL") § 240(1-b)(c)(7) confers judicial discretion to direct contribution for a child's college expenses in the absence of a voluntary agreement of the parties [*6]"having regard for the circumstances of the case and of the respective parties and in the best interests of the child, as justice requires." Case law has subsequently set forth factors to be considered in such a determination, including educational background of the parents and their financial ability to provide the necessary funds, the child's academic ability and endeavors, and the type of college that would be most suitable for the child. See Rosado v Hughes, 23 AD3d 318 (1st Dept 2005); Naylor v Gastler, 48 AD3d 951, (3d Dept 2008); Reiss v Reiss, 56 AD3d 1293 (4th Dept 2008). These factors, especially those involving the children's academic background and corresponding options for college, are particularly unsuited for consideration by a court that is 1,200 miles away from where those children live.

"One of the distinct benefits of sitting in a particular [forum] for any length of time is that judges become familiar with things like schools, neighborhoods, health care facilities and travel times. That benefit is lost when a judge is dealing with other [forums] and unfamiliar terrain." Castaneda v Castaneda, 36 Misc 3d 504, 512 (Sup Ct, NY County 2012). This court would need to hear testimony about college matriculation rates of students graduating from Coral Gables high schools, how local grading and testing scores compare nationwide, the aforementioned Florida Pre-Paid College Fund, the difference in quality between various public colleges — known nationally more for their football programs than their academics — and lesser known private colleges. One can imagine the slew of witnesses that might have to fly from Florida to New York: college guidance counselors, academic deans, financial aid experts. See Pamela T. v Marc B., 33 Misc 3d 1001, 1010-1012 (Sup Ct, NY County 2011). Even accounting for forum shopping on the ex-husband's part, justice and the convenience of the parties requires dismissing this portion of the motion on the basis of forum non conveniens.

To conclude the discussion of this branch of the motion, the court will not dismiss the summary judgment and enforcement portions of this post-judgment motion brought in New York, where the ex-husband was living and working, although he has since moved. While travel of the parties and witnesses may therefore be required, in light of the ex-husband's affidavit that he would contest jurisdiction were the ex-wife to seek enforcement in Florida, hearing the case in New York yields a more just outcome. However, the modification portion of the motion presents issues so rooted in Florida that deciding them in this court is unworkable and impracticable. Accordingly, the ex-husband's motion to dismiss and accompanying motions for stays must be granted as to the modification branch of the ex-wife's motion and otherwise denied.

II. Plaintiff's Motion for Summary Judgment

Having determined that the bulk of this action was properly commenced in New York State, the court turns to the ex-wife's motion for partial summary judgment. According to the Court of Appeals, "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985). The wife has established that the New York courts can, as a matter of comity, recognize and enforce foreign judgments. See, e.g., Greschler v Greschler, 51 NY2d 368, 376 (1980)("Although not required to do so, the courts of this State generally will accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of our sister States."). The ex-husband's opposition papers fail to raise factual disputes, nor do they provide any sound reason for this court to refuse to recognize the UK judgment, other than to say that comity does [*7]not require recognition of foreign judgments and to reiterate his position that New York is an inconvenient forum.[FN2] He therefore fails to meet his burden to defeat the ex-wife's motion for partial summary judgment. Consequently, the court recognizes the UK judgment under the doctrine of comity.

III. Plaintiff's Enforcement Motion

As to the enforcement branch of the motion, pursuant to DRL § 236B(9)(a), as well as various provisions of the CPLR, this court is authorized to enforce provisions of a judgment of divorce using a variety of methods, including by issuing an income deduction order for arrears and for prospective support payments (see CPLR §§ 5241 and 5242) and by entering a money judgment in favor of the payee spouse (see DRL §§ 244 and 244-a). The ex-wife asks the court to employ both of these measures.

The ex-husband's papers make two things clear: (1) he claims to be current on his child support and (2) he concedes that he has not paid spousal support since February 2012, but contends that the ex-wife has triggered the cohabitation clause, thereby terminating his spousal support obligation. The two alleged defaults will be addressed in turn.

a. Child Support

Pursuant to the UK judgment, the ex-husband must pay child support in the amount of 26.65% of his net salary and 20% of his net bonus each month (or 5.33% of his net salary and 4% of his net bonus per child). Because this obligation is subject to change, financial disclosure is of course required, and was consented to as part of the order. Specifically, the UK judgment states that the ex-husband must provide copies of all "payslips" in six-month quantities, every six months within 14 days of April 30 and October 31 of each year, as well as all W2 forms and P45/P60 forms,[FN3] within 14 days of his receipt thereof. The UK judgment also requires that he produce "[c]opies of such documents which state whether or not he is to be paid any bonuses and which provide details of any bonuses including their amount, how they are to be paid, and when the Respondent Husband can first access them" within 14 days of his receipt thereof. The UK judgment explicitly provides for such disclosure in the event that he earns income in the UK, the United States or another country.

It is difficult to discern from the ex-wife's papers what exactly is owed, both in terms of child support and document disclosure. It appears undisputed that the ex-husband paid no child support from April 2011 through July 2011, although the ex-husband claims he was unemployed. The ex-wife claims the ex-husband received but did not share a severance payment from a former employer, Quality Capital Management, during that time, however she does not provide any basis for this knowledge. The ex-wife then claims the ex-husband resumed "some" child support payments in August 2011, but contends the payments he made were less than the [*8]percentage required of him.

Likewise, the ex-wife does not specifically outline the documents she needs to calculate the exact arrears. Nowhere in her papers does she state whether or not the ex-husband sends her the preceding six months worth of payslips on April 30 and October 31 of each year, nor does she state whether or not she is missing any P45s, P60s or W2s. She does identify one correspondence from Quality Capital Management relating to a severance package,[FN4] but she does not provide proof of any outstanding bonuses paid to the ex-husband.The ex-husband contends that he has fully complied with his child support obligations. He attaches to his opposition papers pay stubs for January 2013-April 2013, for all of 2012, and for August, September, October and December 2011. He states that all pay stubs prior to August 2011 are located at his UK residence. Presumably, failure to include November 2011 was accidental, since the month is included on an accompanying spreadsheet. He does not include P45s, P60s or W2s.

Without the proper documentation, arrears cannot be calculated and outstanding payments, if any, cannot be enforced. Now that the ex-husband should have, according to his papers, relocated to the UK, he should be capable of furnishing all the necessary records. Therefore, the ex-wife's motion regarding the subpoena is granted to the limited extent of requiring the ex-husband to provide pay stubs from November 2009-July 2011 and November 2011, as well as each year's P45, P60 and W2, proof of receipt of any bonuses, and proof of receipt of any severance packages or pay, which will ultimately be calculated as part of his salary. The ex-husband must provide these to the ex-wife within 30 days after the date of this Order. The requests related to child support arrears are denied without prejudice to the ex-wife's ability to bring another motion seeking child support arrears via money judgment or income deduction order once all the documentation has been analyzed and an exact number is deduced.

b. Spousal Support

Pursuant to the UK judgment, the ex-husband is obligated to pay 13.33% of his net salary and 10% of his net bonuses each month as and for spousal support. As with his child support obligation, financial disclosure is required to determine the exact spousal support amount each month. The ex-wife claims the ex-husband failed to pay from April 2011 through July 2011, when he claims he was unemployed. However, the larger breach, the ex-wife alleges, occurred when he ceased making payments altogether in February 2012.

The ex-husband does not dispute this; rather, he contends he is justified in his nonpayment in light of the cohabitation clause in the UK judgment, which states that spousal support payments shall be paid "until the [ex-wife] shall re-marry or until the [ex-wife] shall cohabit with a non-relative for a period exceeding three consecutive months or until 30th December 2020 whichever shall be earlier whereupon the [ex-wife]'s claims for [spousal support] shall stand dismissed . . . ." The ex-husband hired a private investigator in 2011, who recorded surveillance footage outside of the ex-wife's home for three straight months. Based on [*9]this footage, which apparently showed a car registered to an unrelated adult male parked outside the ex-wife's home, the ex-husband concluded that the ex-wife was cohabiting sufficient to trigger the cohabitation clause and ceased paying spousal support. The ex-wife denies that she has cohabited with any nonrelative.

In Graev v Graev, 11 NY3d 262 (2008), the leading Court of Appeals case on cohabitation clauses in matrimonial matters, the ex-wife conceded that she had a relationship with a nonrelative, but contested the ex-husband's assertion that she and the nonrelative were cohabiting. The court looked at, inter alia, whether the nonrelative maintained another residence, how expenses were paid and whether the relationship was sexual in nature. In Graev, as well as in other cases to which the Court of Appeals cites, the determinations are based on an array of in depth factual information, more than is set forth in these motions. See, e.g., Olstein v Olstein, 309 AD2d 697 (1st Dept 2003), Matter of Watson v Watson, 39 AD2d 660 (1st Dept 1972), Famoso v Famoso, 267 AD2d 274 (2d Dept 1999), Markhoff v Markhoff, 225 AD2d 1000 (3d Dept 1996), Scharnweber v Scharnweber, 105 AD2d 1080 (4th Dept 1984). Here, the ex-husband's only evidence is surveillance tapes of the outside of the ex-wife's house. Without further information, the court cannot determine whether or not the ex-wife is cohabiting.

Therefore, a hearing to determine whether or not the ex-wife is or was cohabiting is required. At that time, certain related issues will be addressed, such as whether the court must apply New York or UK law, whether the ex-husband was entitled to cease spousal support payments unilaterally based on his belief that cohabitation occurred, or when, if it has, his obligation properly concluded. In the meantime, the ex-wife's motions for a money judgment and an income deduction order are denied without prejudice to her seeking this relief after the hearing takes place and the amount of arrears and prospective support, if any, is determined.

IV. Security

In addition to her requests for an income deduction order and a money judgment, which have been denied at this time, the ex-wife seeks security for future payments in the amount $100,000. The ex-husband not only opposes this request, but seeks immediate return of $50,000, which this court ordered the ex-husband put in escrow after the parties' appearance on May 16, 2013. Their contentions regarding security mirror those already outlined: she wants security for future payments in light of his continued and ongoing delinquence; he opposes the security because he is fully up to date on all his obligations.

DRL § 243 provides that, in order to ensure payment of support, "the court, in its discretion, also may direct the spouse from whom maintenance or support is sought to give reasonable security, in such a manner and within such a time as it thinks proper, for the payment, from time to time, of the sums of money required for that purpose." Although at this point the ex-husband's arrears, if any, cannot be determined, the ex-wife estimates they are roughly $68,000. Since it appears, at least for the time being, that the ex-husband has resumed payment of child support, and since the circumstances have not changed since the court's initial order that $50,000 be secured in escrow, the $50,000 already ordered is sufficient. Therefore, both the ex-wife's motion that the ex-husband post $100,000 for security and the ex-husband's cross-motion for the return of the $50,000 are denied.

V. Counsel Fees

Finally, the ex-wife requests $30,000 in counsel fees incurred for bringing Motion Sequence 1 and $22,000 incurred for bringing Motion Sequence 2. In matrimonial actions, the court has discretion to direct one party to pay counsel fees for the opposing party. DRL §§ 237 [*10]and 238. "In exercising its discretionary power to award counsel fees, a court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties' positions." DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 (1987).

DRL § 237 creates a rebuttable presumption that counsel fees shall be awarded to the non-monied spouse. This presumption reflects the strong policy concern of "leveling the playing field," as it is commonly called, "to make sure that marital litigation is shaped not by the power of the bankroll but by the power of the evidence." Charpie v Charpie, 271 AD2d 169, 170 (1st Dept 2000). Thus, it is especially important to award counsel fees for the non-monied spouse when there is a substantial discrepancy between the incomes of the parties. Id. at 171. However, along with these concerns, this court also considers whether or not the non-monied spouse will have some financial stake in the litigation, so that a legal battle is not needlessly waged on the monied spouse's dime. Here, it is clear that the ex-husband is the monied party and the ex-wife is the non-monied party.

DRL § 238 likewise "grants the court discretion to award counsel fees in any proceeding to enforce the monetary terms of a divorce." Roiphe v Roiphe, 98 AD2d 676, 676 (1st Dept 1983). Although the court cannot yet determine whether the ex-husband has in fact breached his spousal support obligations, he has not complied with all the requisite disclosure, which has resulted in at least the portions of this motion related to child support and subpoenas.[FN5] On the other hand, the ex-wife also makes a request for modification, rather than enforcement, of the UK judgment. Therefore, in the court's discretion, the ex-wife is awarded $25,000 in counsel fees for bringing Motion Sequences 1 and 2.

Conclusion

When the income of a monied, noncustodial parent is constantly changing, it may be tempting to structure support proportionately. But as these motions demonstrate, requiring continued disclosure and fluctuating payments can lead to increased animosity, mistrust and a pattern of "scorched earth" litigation. Upon reviewing Motion Sequences 1 and 2 — which are only the first and second motions brought in New York, others have been brought elsewhere — it is clear that there are so many facts unknown to the ex-wife and to the court that it is not possible to grant much of the relief sought. Instead, further discovery is required before a determination can be made as to any child support arrears and a hearing is required to determine issues surrounding the ex-wife's potential cohabitation and the ex-husband's spousal support obligations. Therefore, both parties and their counsel are required to appear for a conference on November 13, 2013 at 9:15 AM, at which time parties are to report on their compliance with this Order and a date for a hearing will be scheduled.

Accordingly, it is

ORDERED, that defendant's cross-motion to dismiss and accompanying stays are denied in part and granted in part as stated herein; and it is further [*11]

ORDERED, that plaintiff's motion for partial summary judgment is granted; and it is further

ORDERED, that plaintiff's motion for enforcement of the UK judgment is granted to the extent that a hearing shall be scheduled to determine whether or not plaintiff has cohabited sufficient to terminate defendant's spousal support obligation; and it is further

ORDERED, that plaintiff's motion to compel response to and the defendant's cross-motion to quash the April 23, 2013 subpoena duces tecum are granted to the extent that defendant must submit to plaintiff all pay stubs, tax returns, evidence of severance packages and bonuses received and evidence of any and all other income earned as indicated herein; and it is further

ORDERED, that plaintiff's motion for a money judgment and an income execution order are denied without prejudice; and it is further

ORDERED, that plaintiff's motion and defendant's cross-motion regarding security are denied; and it is further

ORDERED, that defendant shall pay $25,000 toward plaintiff's counsel fees; and it is further

ORDERED, that parties and counsel are to appear November 13, 2013 at 9:15 AM for a conference to ensure documents have been exchanged so that arrears may be calculated and a hearing can be scheduled; and it is further

ORDERED, that all other relief sought is denied.

This constitutes the decision and order of the court.

Dated: September 27, 2013Enter: ___________________________

Matthew F. Cooper, J.S.C. Footnotes

Footnote 1: CPLR 2101(a) requires parties and attorneys to print their names beneath their signatures. Subsection (c) requires: "Each paper served or filed shall begin with a caption setting forth the name of the court, the venue, the title of the action, the nature of the paper and the index number of the action if one has been assigned." Subsection (d) requires: "Each paper served or filed shall be indorsed with the name, address and telephone number of the attorney for the party serving or filing the paper, or if the party does not appear by attorney, with the name, address and telephone number of the party." The documents submitted by the ex-husband do not include the caption of the case, the ex-husband's address or other contact information, or a signature. Additionally, the papers lack any clear narrative and do not sufficiently or logically address the ex-wife's motion. The exhibits are not explained, and several paragraphs are repeated verbatim multiple times throughout the documents.

Footnote 2: The ex-husband also argues that CPLR 3213 is "an improper vehicle" for plaintiff's other requests. This is true, however, the ex-wife only seeks summary judgment on the portion of the motion that requests recognition of the UK judgment. The other branches of her motion are brought pursuant to New York's Domestic Relations Law.

Footnote 3: According to the website of the UK's taxation authority, HM Revenue & Customs, the P45 form is filed when a person leaves a place of employment, while the P60 provides an end-of-year summary of one's earnings, deductions, and social services contributions.

Footnote 4: In New York, severance is considered part of one's salary and thus the ex-husband must give a percentage to the ex-wife for support. See Fischler v Fischler, 2 AD3d 487, 489 (2d Dept 2003)("[W]e agree with the Supreme Court that commissions, bonuses, and severance pay should be treated as additional earnings or income for the purposes of calculating the additional support due the respondent.").

Footnote 5:As stated, the ex-husband initially appeared pro se, submitting improper and incomprehensible opposition papers, and the court began its decision. Subsequently the ex-husband retained a lawyer and sought a new appearance and new papers, which rendered the court's work useless. As a condition to re-opening Motion Sequence 1, the court ordered the ex-husband to pay $15,000 toward the ex-wife's counsel fees. This award is separate.