Roy L. Caivano, Plaintiff,
Cathy J. Caivano, Defendant.
Capetola & Doddato, Williston Park (Anthony Capetola and Linda Kule of counsel), for plaintiff.
Thomas A. Bruno, Port Jefferson, for defendant.
F. Dana Winslow, J.
Plaintiff's motion to dismiss on the basis that the Court lacks jurisdiction or, alternatively, on the basis of " forum non conveniens" is determined as follows.
This is a matrimonial action that was filed on February 6, 1996. The parties were married in Texas in 1973. They moved to New York in 1978 and lived there together continuously, as husband and wife, for 18 years. In January 1996, defendant Cathy Caivano and the parties' three children moved back to Texas. Plaintiff Roy Caivano commenced this action one month later in New York. At the time of filing, plaintiff was a resident and domiciliary of the County of Nassau, State of New York. Defendant, who had taken up residence in Tarrant County, Texas, appeared, answered and counterclaimed in New York.
The action was bitterly contested and subject to numerous delays. After two years of litigation, plaintiff moved to Tarrant County, Texas. He asserts that he has been a full-time resident and domiciliary there since March 1998, along with his wife and three children. On that basis, plaintiff argues that the Court no longer has subject matter jurisdiction to enter a decree of divorce. Further, plaintiff argues that the Court lacks subject matter jurisdiction over the child custody and support issues, and personal jurisdiction over defendant's counterclaims against plaintiff.
The power of a court to entertain a divorce action and render a binding decree rests upon the court's jurisdiction over the marital res. (Senor v Senor, 272 A.D. 306.) A decree entered without such jurisdiction is not entitled to full faith and credit and is therefore subject to collateral attack in another state. Personal jurisdiction over both parties is not sufficient to confer jurisdiction over the marital res. Jurisdiction over the marital res requires that at least one of the parties be a domiciliary of the State in which the court resides. (Senor v Senor, supra, citing Williams v North Carolina, 325 U.S. 226.)
In the instant action, the Court had jurisdiction over the marital res at the time of commencement. At that time, plaintiff was an 18-year resident and domiciliary of the State
of New York.T he question is whether the Court retains jurisdiction over the marital res when the sole remaining domiciliary leaves the State during the pendency of the action. Put another way, when is the relevant time for ascertaining jurisdiction over the marital res--upon commencement of the action or upon issuance of the decree? The parties have cited no case law that directly addresses this question.
Some confusion in the case law stems from the indiscriminate and interchangeable use of the terms " subject matter jurisdiction" and " jurisdiction over the marital res." Subject matter jurisdiction deals with the court's authority over the subject matter of a dispute. The underlying concern is the court's competence to entertain a particular cause of action. A judgment rendered without subject matter jurisdiction is void. (See Lacks v Lacks, 41 N.Y.2d 71, 75, citing 21 CJS, Courts, §§ 108-110, 116.) Lack of subject matter jurisdiction can be raised at any time during the litigation, and is not subject to waiver or conferred by consent of the parties. (Id.) In a court of limited jurisdiction, subject matter jurisdiction can be lost if the jurisdictional predicate is lost. (See, e.g., Allard v Arthur Andersen & Co. [U.S.A.], 957 F.Supp. 409 [SD N.Y. 1997] [in action pending for over 13 years, federal court did not retain jurisdiction over pendent State law claims following dismissal of federal claims].)
The New York Supreme Court is a court of general jurisdiction, competent to entertain all causes of action unless specifically prohibited, including divorce actions. (Lacks v Lacks, supra; see N.Y. Const, art VI, § 7.) The question of jurisdiction over the marital res is not a question of subject matter jurisdiction. A decree issued without jurisdiction over the marital res may be binding upon the parties to the action, although it may be subject to attack by third parties. (Matter of Lindgren,293 N.Y. 18; Senor v Senor, supra.) If jurisdiction over the marital res were equivalent to ...