New York Miscellaneous Reports
Unpublished
KRAMER v. PARONEN, 350089 (10-26-2006) 2006 NY Slip Op
52133(U) MONA KRAMER, Plaintiff, v. MIKKO PARONEN,
Defendant. 350089/2006. Supreme Court of the State of New
York. New York County. Decided October 26, 2006.
[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] HAROLD B. BEELER, J.
This is a matrimonial action in which the plaintiff-wife
Monica Kramer is suing the defendant-husband Mikko Paronen
for divorce on the grounds of cruel and inhuman treatment
(DRL § 170(1)) and adultery (DRL § 170(4)).
She is also seeking a monetary award in the form of
maintenance and equitable distribution of all marital
property.
Defendant moves to dismiss the complaint on several
grounds: (1) lack of personal jurisdiction over the
defendant (CPLR 3211(a)(8)) by reason of the failure to
meet the requirements of long arm jurisdiction under CPLR
§ 302(b); (2) failure to state a cause of action
(CPLR 3211(a)(7)) as a result of plaintiff’s noncompliance
with the durational residency requirements of DRL §
230; and (3) forum non conveniens (CPLR 327). Plaintiff
opposes and cross-moves for pendente lite relief including
monthly spousal maintenance.
Factual Background
Based upon the affidavits submitted by the parties,
certain facts are agreed upon while others, which are in
dispute, will be detailed more fully below. It is
undisputed that the parties were married on July 29, 2000
in Finland. Defendant, a Finnish citizen, is sales director
for Finnair, an international airline, which sent him to
Singapore after their marriage. The couple lived in
Singapore until February 2005 when defendant was
transferred to Talinn, Estonia where they lived until the
beginning of October 2005. Finnair then sent defendant to
London where the parties separated almost immediately on
October 25, 2005. Plaintiff, who holds dual U.S.-Swiss
citizenship, returned to New York State where she grew up
and her parents resided.
She commenced this matrimonial action on February 14, 2006,
a few days before defendant commenced a divorce action in
Talinn. During their marriage, plaintiff returned to New
York State at least twice a year to visit family and
friends for several weeks at a time while defendant came to
New York randomly on business or to stay with plaintiff and
her family. The parties never owned or maintained a
residence in New York.
Long-Arm Jurisdiction Pursuant to CPLR § 302(b)
The court obtains personal jurisdiction generally over an
individual non-domiciliary defendant by personal delivery of
the summons on that defendant in New York State or by the
operation of the long-arm provisions of CPLR §
302(a) or (b). None of the exceptions of CPLR §
302(a) dealing with conducting business, tortious acts or
owning property within New York State apply here. CPLR
§ 302(b) specifically provides for long-arm
jurisdiction over monetary matters in a matrimonial
action.[fn1]
The instant defendant is concededly a non-domiciliary who
was served with the summons outside of New York State. The
question, therefore, is whether personal jurisdiction may
be exercised over the defendant under CPLR § 302(b)
so as to enable plaintiff to obtain monetary relief from
the defendant in the form of pendente lite maintenance as
sought in the cross-motion as well as maintenance and
equitable distribution upon dissolution of the marriage as
demanded in the complaint.
Plaintiff is currently a resident of New York State and was
so at the time the demand for support was made, the
initial prerequisite for the invocation of CPLR §
302(b). However, no one other necessary condition of the
three alternatives identified in the statute is met. New
York State was not the matrimonial domicile of the parties
before their separation; defendant did not abandon
plaintiff in this state; and, the claim for support,
maintenance and distributive awards did not accrue under the
laws of this state or under an agreement executed in this
state. While the parties visited plaintiff’s parents in New
York and defendant made business trips here, there is
simply no evidence that they established a matrimonial
domicile, or even a matrimonial residence, in New York
State. See Staron v. Staron, 215 AD2d 646 (2d Dep’t 1995);
Klette v. Klette, 167 AD2d 197 (1st Dep’t 1990).
Accordingly, in the absence of any bona fide factual
dispute, the Court finds as a matter of law that it has no
personal jurisdiction over defendant and grants defendant’s
motion to dismiss plaintiff’s claim for ancillary monetary
relief pursuant to CPLR 3211(a)(8). As a result,
plaintiff’s cross-motion for pendente lite relief is
denied.
In Rem Jurisdiction Over the Marital Res Pursuant to CPLR
§ 314(b)
In the absence of in personam jurisdiction, a court still
has authority to affect the marital status by way of in
rem jurisdiction over the marital res as provided in CPLR
§ 314(b) as long as one of the parties is a
domiciliary of New York State at the time action is
commenced. Carr v. Carr, 46 NY2d 270, 272 (1978) (“Long ago
the notion developed that a divorce proceeding is an action
in rem, with the marital status of the parties being
fictitiously deemed an intangible res. While the analytical
value of the in rem label has been questioned, status
adjudications nonetheless possess a different quality than
that of the typical in personam action”) (Citations
omitted).
Defendant has not sought to dismiss the complaint seeking
the dissolution of the marriage on the ground that the
court lacks subject matter jurisdiction over the marital
res. Accordingly, the Court retains jurisdiction over the
status of the parties’ marriage.
Durational Residency Requirements Pursuant to DRL §
230
Defendant’s argues that plaintiff has failed to meet the
durational residency requirements mandated by DRL §
230[fn2] and that, therefore, the complaint must be
dismissed for failure to state a cause of action pursuant
to CPLR 3211(a)(7). These continuous residency requirements
of DRL § 230 are not a limit on the subject matter
jurisdiction of the court, but are substantive elements of
a matrimonial cause of action which must be alleged and
proven. Lacks v. Lacks, 41 NY2d 71, 73 (1976) (“The
requirements of section 230 . . . go only to the substance
of the divorce cause of action, not to the competence of
the court to adjudicate the cause”); Unanue v. Unanue, 141
AD2d 31, 340 (2d Dep’t 1988) (“The durational residency
requirements [of DRL § 230] are not a limitation
upon the subject matter jurisdiction of the Supreme Court,
but are merely substantive elements’ of the matrimonial
cause of action, which the plaintiff must allege and
prove”).
The purpose of these durational requirements is to protect
the New York courts from being utilized by litigants in
matrimonial proceedings who have little or no connection to
New York. Unanue, 141 AD2d at 34 (“Concerned that spouses
with no real connection to New York would flock here for
the sole purpose of obtaining marital relief unavailable in
the States that had substantial interests in the marital
relationship, the Legislature imposed the durational
residence requirements to deter such conduct and to ensure
against use of our courts in matrimonial proceedings by
outsiders”) (Internal punctuation omitted).In opposing the
motion to dismiss, plaintiff relies on DRL § 230(5)
arguing that she has maintained her domicile in New York
for a continuous period in excess of two years immediately
preceding the commencement of the action. While defendant
establishes that plaintiff did not reside in New York State
for more than a few months before commencing this action,
plaintiff correctly argues that domicile is an acceptable
alternative to actual physical residence under DRL §
230. Capdevilla v. Capdevilla, 149 AD2d 312, 313 (1st Dep’t
1989) (“Proof of either domicile or residency will suffice
to show compliance with Domestic Relations Law §
230”).
Domicile ordinarily requires that “there must be physical
presence and the requisite intention to make the locality
one’s fixed and permanent home.” 1 Foster, Freed and
Brandes, Law and the Family New York § 5:11 [2d ed].
Moreover, “once a domicile is established in New York, it
is not lost merely by temporary absences from the State,
provided there is a corresponding intention to retain New
York as one’s domicile.” Unanue, 141 AD2d at 40. That is, a
person can change his residence without necessarily
changing his domicile. See Scheinkman, Practice Commentary,
McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law
§ 230, at 25. It is also presumed that a domicile of
origin continues until it is superceded by a new one. See
generally 25 Am. Jur. 2d Domicil § 55; Unanue, 141
AD2d 31; Delvaille v. Delvaille, 87 Misc 2d 726, 728 (Sup
Ct Special Term, Kings County 1976) (“There is a
presumption in the law that a domicile, once fixed, is
retained until a new one is actually required”).
Further, there is an especially strong presumption that a
person living in a foreign country intends to retain his
Unites States domicile. Dupuy v. Wurtz, 53 NY 556, 569
(1873) (“Her long residence abroad, upon which the
contestants rely, is not very significant in this case, as
during by far the greater part of that time, in fact during
all except about two and a quarter years before her death,
she was clearly shown to be a mere sojourner in Europe).
Dupuy v. Wurtz holds that “in view of the important results
flowing from a change of domicil[e], the intention to make
such a change should be established by very clear proof,
especially when the change is to a foreign country.” 53 NY
at 562. This presumption can, of course, be overcome by
proof establishing a change of domicile. In re Appleby’s
Estate, 106 NYS2d 294, 300 (Sup Ct NY County 1951) affd 279
A.D. 993 (1st Dept 1952) (“The domicile once acquired
continues until there has been not only an abandonment of
the old domicile but the acquisition of a new one”). The
burden of proof is on the party, in this case the
defendant, asserting such a change. Id. at 299.
Relying on these well-accepted principles of law,
plaintiff argues that the objective evidence establishes
that New York has always been her domicile and that she
never intended to abandon it as her permanent home. She
points to the evidence that she was born and raised here,
that her residences abroad were necessitated by the demands
of her husband’s employment and that she has continuously
maintained her contacts with New York throughout the
marriage and expressed her intention to return to live
here. In the latter regard, she emphasizes her returning to
New York for weeks at a time to see family and friends, her
maintaining a New York Driver’s License and New York Voter
Registration Card and her payment of United States taxes in
2002, the last year she claims to have earned income.
Defendant responds that plaintiff’s claims, even if
accepted as true, establish only a tenuous connection to
New York and that her leaving New York and relocation to
Europe evidenced a clear intention to abandon New York and
acquire a new domicile. In particular, defendant refers to
plaintiff’s having lived in Switzerland and San Francisco
even before their marriage; their having lived together for
approximately 5 years in Singapore where plaintiff obtained
permanent residence status; their relocation to Estonia for
about 7 months where plaintiff obtained a work and
residency permit; and, their never having owned and
maintained a residence in New York. Further, defendant
contends that, while plaintiff may have filed United States
taxes in 2002, she listed her Singapore address as her home
on IRS Form 1040 and, more importantly, there is no claim
on her part that she ever filed New York State income
taxes. Finally, while she may be registered to vote in New
York State, she never contends that she was actually
physically present to vote in any New York State election
nor that she voted there by absentee ballot since the
marriage.
From even this brief recitation of the parties’ respective
contentions, it is clear that there are contested issues of
fact as to whether plaintiff has been domiciled in New York
State for two years preceding the commencement of the
action as mandated by DRL § 230(5). Plaintiff refers
to the evidence of continuing contacts with New York State
while she lived and traveled abroad and the absence of
evidence that she established a permanent domicile anywhere
else. By contrast, defendant points to the permanence of
her contacts in Europe and Asia and what he claims to be
the superficiality of her connections to New York State.
The remaining issue is whether the sufficiency of the
evidence with respect to plaintiff’s compliance with DRL
§ 230(5) should be determined as a threshold matter
at a pre-trial hearing or simultaneously with all contested
issues at trial. At one time, the law regarded the issue of
plaintiff’s continuous residence or domicile as a
jurisdictional issue and mandated a hearing in advance of
trial. See Usher v. Usher, 41 AD2d 368 (3d Dep’t 1973).
However, the logic of Usher was explicitly rejected by the
holding in Lacks, supra, that DRL § 230 did not
implicate the competence or subject matter jurisdiction of
the court, but rather concerned a substantive element of a
divorce cause of action which had to be alleged and proven.
Relying on Lacks, the First Department in Rubin v. Rubin,
73 AD2d 148 (1st Dep’t 1980) declined to bifurcate the
proceedings and held that the issue of plaintiff’s
continuous residence was one for trial. Since the Rubin
plaintiff did not seek alimony or monetary relief and thus
was not entitled to any pretrial financial discovery, the
interest of judicial economy and management mandated a
single proceeding. 73 AD2d at 151. In Wilson v. Wilson, 176
AD2d 115 (1st Dep’t 1991), where the plaintiff sought
alimony and equitable distribution, the First Department
distinguished Rubin and directed an immediate pre-trial
hearing on the substantive issue of plaintiff’s residence
in order to avoid possibly unnecessary, protracted and
expensive pre-trial discovery with respect to the parties’
substantial assets. In light of this Court’s ruling that
plaintiff is not entitled to any monetary relief against
the defendant because no personal jurisdiction was obtained
over him pursuant to CPLR § 302(b), the Court will
follow the logic of Rubin and order that the issue of
plaintiff’s domicile be reserved for trial.
Forum Non Conveniens Pursuant to CPLR 327
Finally, defendant’s application to dismiss the complaint
on forum non conveniens grounds is denied. “The wife’s
residence in New York provides a substantial nexus to this
State.” Bourbon v. Bourbon, 259 AD2d 720, 722 (2d Dep’t
1999). Additionally, none of the other jurisdictions where
the parties had contacts appear to be a better jurisdiction
to hear this case. The couple left Singapore 20 months ago
and Estonia, where they only lived less than eight months,
one year ago. There is no reason to defer to the
later-commenced action in Estonia under those
circumstances. They arrived in London together, but
separated within days of getting there.
Conclusion
For all the foregoing reasons, defendant’s motion to
dismiss for lack of personal jurisdiction pursuant to CPLR
§ 302(b) is granted and his motions to dismiss for
failure to comply with the durational requirements of DRL
§ 230 and on forum non conveniens grounds are
denied.
A Preliminary Conference on this action shall be held on
Monday, December 11, 2006 at 10:30 AM in Room 304, 71
Thomas Street.
This constitutes the decision and order of the Court.
[fn1] CPLR § 302(b) reads in part: A court in any
matrimonial action or family court proceeding involving a
demand for support, alimony, maintenance, distributive
awards or special relief in matrimonial actions may
exercise personal jurisdiction over the respondent or
defendant notwithstanding the fact that he or she no longer
is a resident or domiciliary of this state, or over his or
her executor or administrator, if the party seeking support
is a resident of or domiciled in this state at the time
such demand is made, provided that this state was the
matrimonial domicile of the parties before their
separation, or the defendant abandoned the plaintiff in
this state, or the claim for support, alimony, maintenance,
distributive awards or special relief in matrimonial
actions accrued under the laws of this state or under an
agreement executed in this state.
[fn2] An action to annul a marriage, or to declare the
nullity of a void marriage, or for divorce or separation
may be maintained only when: 1. The parties were married in
the state and either party is a resident thereof when the
action is commenced and has been a resident for a
continuous period of one year immediately preceding, or 2.
The parties have resided in this state as husband and wife
and either party is a resident thereof when the action is
commenced and has been a resident for a continuous period
of one year immediately preceding, or 3. The cause occurred
in the state and either party has been a resident thereof
for a continuous period of at least one year immediately
preceding the commencement of the action, or 4. The cause
occurred in the state and both parties are residents thereof
at the time of the commencement of the action, or 5. Either
party has been a resident of the state for a continuous
period of at least two years immediately preceding the
commencement of the action.