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MELNICK v. ADELSON-MELNICK

November 15, 2004.

STUART L. MELNICK, Plaintiff,
v.
WENDY ADELSON-MELNICK, Defendant.



The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

MEMORANDUM OPINION

This diversity action, which was removed from New York Supreme Court, is the latest episode in long running matrimonial litigation that continues and belongs in the courts of Connecticut. Defendant moves to dismiss for failure to state a claim, lack of subject matter jurisdiction, lack of personal jurisdiction, and improper venue and on the ground of forum non conveniens and for other relief, including sanctions. Facts

  The Court accepts as true, for purposes of this motion, the well pleaded factual allegations of the complaint save that it considers the affidavits specifically cited below solely insofar as they bear on the issue of personal jurisdiction.

  The Controversy

  Plaintiff and defendant were married in 1991 and divorced in 1997 pursuant to a judgment of the Superior Court for the State of Connecticut. A separation agreement providing, among other things, for visitation rights with respect to the minor child of the marriage was incorporated in the divorce decree.

  The parties have had continuing disagreements with respect to visitation. In November 2003, in an effort to resolve these problems, they entered into a supplemental agreement that was reduced to an order of the Family Court in Connecticut.

  Plaintiff, now a citizen of New York, claims that his former spouse, still a citizen of Connecticut, has breached the separation and supplemental agreements and otherwise misbehaved, chiefly in relation to his visitation rights. He allegedly has been unsuccessful in obtaining relief from the Connecticut courts. So he brought this action in New York Supreme Court, whence defendant removed it to this Court.

  The complaint contains eight claims for relief:
• Breach of the separation and supplemental agreements, chiefly in relation to visitation.
• Breach of the covenant of good faith and fair dealing implicit in the separation and supplemental agreements, chiefly in relation to visitation.
• Fraud in the inducement of the separation and supplemental agreements in that the defendant allegedly had no intention of performing.
• Tortious interference with custodial rights.
• Intentional infliction of emotional distress.
• Negligent infliction of emotional distress.
• Prima facie tort.
• Punitive damages.
Personal Jurisdiction

  The complaint alleges in conclusory terms that the actions complained of either occurred in New York or have had a detrimental impact here.*fn1 Its specific allegations, however, all contend that defendant improperly acted or failed to act in the State of Connecticut.*fn2 It asserts — falsely, as shown below — that defendant commenced an unspecified proceeding against plaintiff in New York Family Court.*fn3

  Defendant has submitted an affidavit stating that she has resided in Connecticut for many years, that the child always has lived there, that she has had no contacts with New York pertaining to these matters except that she has received telephone calls and correspondence initiated by plaintiff from New York, and that she never has traveled to New York for any reason connected with the dispute with her ex-husband.*fn4

  The separation agreement, which is incorporated in the judgment of divorce, provides that plaintiff is to have "liberal and reasonable visitation," that the defendant shall meet plaintiff in Milford, Connecticut, on alternate weekends to exchange the child, and that the plaintiff shall pick up the child in Connecticut for specified holidays. Any disputes concerning visitation are to be mediated and then submitted to the Connecticut Superior Court either to incorporate any agreements reached in mediation in court orders or for resolution on motion.*fn5 The supplemental agreement similarly provides for plaintiff to have "parenting time" with the child, with exchanges of the child to occur in Connecticut.*fn6

  Defendant's affidavit in opposition to the motion is extremely sparse on the issue of personal jurisdiction. He contends that the "Court appears to have . . . personal jurisdiction" and again refers to the alleged New York Family Court action, but otherwise does not address the issue save to say — without a shred of support and in the face of the express terms of the agreements — "that defendant's obligations under the agreements between us, principally the Separation Agreement, were to have been performed, fulfilled and/or effectuated in the City and State of New York."*fn7

  Plaintiff's reference to the New York Family Court action is more circumspect than in the complaint. The complaint alleged that defendant "commenced" such an action.*fn8 The affidavit, in contrast, says that "[d]efendant filed or caused to be filed a Family Court action here" in consequence of which he now makes child support payments to the State of New York.*fn9 The reason for the change in wording is readily apparent, as defendant quite clearly did not commence any proceeding against plaintiff in the New York Family Court.*fn10 What happened was quite different.

  Defendant fell into arrears in child support payments. The Support Enforcement Division of the Connecticut Superior Court demanded payment from the plaintiff.*fn11 Connecticut authorities then pursued the ...


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