For the Plaintiff Drexel LLC By Orrit Hershkovitz, Esq.
For the Defendant Stein & Ott LLP By Lara Ott, Esq.
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 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 ), 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 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.
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 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, ...