BACKGROUND

The parties were married on July 27, 1996, and separated in October 2009, when Defendant left the marital residence. There are two children of the marriage: P. V. (11 years of age) and M. V. (7 years of age). Both children currently reside with Plaintiff in Rego Park, New York. Previously, M.V. had been living in Bulgaria with his maternal grandmother until January 2010, when Plaintiff brought him to New York. P.V. has always resided in New York. The Defendant lives in Bronx, New York and both parties hold dual-citizenship in the United States and Bulgaria. Plaintiff maintains that since leaving the marital home in October 2009, Defendant has provided only $600 toward the support of the children. Plaintiff is employed as a housekeeper, and earned $30,725 in 2009; Defendant is employed as a security officer, and earned $57,355 in 2009. As reported in her Net Worth Statement, Plaintiff's monthly expenses for her and the two children total $3,495. Plaintiff's sister, M. N., submitted an affidavit stating that she lends Plaintiff between $700 and $800 per month to provide for basic needs. Neither party has significant assets, though Defendant claims that the Plaintiff has $7,000 in a bank account. According to Defendant, over $30,000 in marital debt is owed on various credit cards and loans, toward which only he makes payments.

Plaintiff reports a history of violent behavior on the part of Defendant, and has submitted copies of Orders of Protection from February 2006, April 2006, and July 2006 (Criminal Court: Queens County, Docket No. 2006QN007947). A Temporary Order of Protection was issued in October 2009 by the Family Court: Queens County (Docket No. O-22152-09), but the parties concede that it was withdrawn by Plaintiff and subsequently dismissed. No proof of dismissal was provided.

With respect to the children, Plaintiff alleges that the parties' daughter is fearful of Defendant. Defendant disagrees and claims that Plaintiff is alienating their daughter from him. He further alleges that Plaintiff has a history of psychological problems, self-medicates, and is incapable of caring for the children.

On November 26, 2009, Defendant allegedly filed a divorce proceeding in Bulgaria (Case No. 13802/2009). On January 6, 2010, Plaintiff filed a Summons with Notice bearing the caption "Action for Divorce" in this court (Index No. 287/10). The present motion, filed on February 11, 2010, is a request by Defendant to defer to the divorce proceeding in Bulgaria that was filed, and to dismiss Plaintiff's divorce action. In her cross-motion, Plaintiff claims that she was not served with the Bulgarian divorce action properly, according to Bulgarian law, and as such, the action must fail [*2]for lack of jurisdiction. In addition to her request for an order dismissing Defendant's motion, she asks that this court award her temporary custody, child support, unreimbursed medical expenses for the children, and for Defendant to obtain a life insurance policy to insure these financial obligations. Defendant maintains that the issue of jurisdiction is for the Bulgarian court to decide.

HOLDINGS:

Defendant's motion to dismiss the divorce and custody proceedings on the grounds that New York is an improper venue is denied.

A hearing is ordered to determine temporary custody of the two marital children.

Defendant is ordered to pay child support in an amount calculated under the New York State Child Support Standards Act, and childcare. Defendant is ordered to pay $14,338.75 in annual child support ($275.75 weekly).

The court reserves its decision on whether or not to order Defendant to obtain a life insurance policy.

Defendant is ordered to provide his pro rata share of full hospitalization insurance, major medical, optical and dental insurance coverage for the children to such time that they become legally emancipated and un-reimbursed medical, optical, and dental expenses; and full hospitalization insurance, major medical and dental insurance coverage for the Plaintiff until the entry of judgment of divorce.

Defendant is ordered to pay $2,000 in counsel fees, which should provide for Plaintiff's legal expenses until the parties' financial circumstances can be examined more closely at trial.

Defendant's Motion to Dismiss

Defendant moves to dismiss this action, insisting that the court allow the Bulgarian action to run its course, but fails to cite any support for such proposition. The question before this court is whether New York is an appropriate venue for this divorce action and custody proceeding. If Bulgaria is the more appropriate venue for the divorce proceedings, then the New York action can be stayed or dismissed pending the resolution of the divorce proceedings in Bulgaria. (CPLR Rule 327; see also VSL Corp. v. Dunes Hotels and Casinos, Inc., 70 NY2d 948, 949 [1988]). However, this is not true for the custody proceedings. Rather, the Child Custody Jurisdiction and Enforcement Act (UCCJEA) will dictate whether or not New York is an appropriate venue for the custody action.

As defendant failed to specifically state the basis for its motion to dismiss, plaintiff assumed that Defendant is relying on CPLR § 3211(a)(4). CPLR § 3211(a)(4) is only applicable when pending litigation exists either in another court within New York, a sister state or the Federal System. (CPLR § 3211(a)(4) ["[A] party may move for a judgment dismissing . one the grounds that there is another action pending between the same parties for the same cause of action in a court of any state or the United States."]); see L-3 Communications Corp. v. SafeNet, [*3]Inc., 45 AD3d 1, 7 [1st Dep't 2007]). Dismissal pursuant to CPLR § 3211(a)(4) is not applicable when the pending litigation is in a foreign tribunal. (See CPLR § 3211(a)(4); L-3 Communicaptions Corp., 45 AD3d at 7; see e.g. Abkco Industries Inc. v. Lennon, 85 Misc 2d 465, 471 [1975]). Since pending litigation is located in Bulgaria, CPLR § 3211 (a)(4) does not apply, and Defendant's motion to dismiss necessarily fails.

When the pending litigation is in a foreign tribunal, a party may move for dismissal pursuant to CPLR §327 Forum Non Conveniens. (Abkco Industries Inc., 85 Misc 2d at 471.) Pending litigation in a foreign tribunal is not dispositive of Forum Non Conveniens applicability. (Id.). CPLR §327(a) states that a dismissal or stay is appropriate when "the interest of substantial justice" would be served if the action were heard in another forum. In making such a determination, the court must exercise discretion in considering and balancing various relevant factors. (Islamic Republic of Iran v. Pahlavi, 62 NY2d 474, 478-84 [1984]). Defendant bears the burden of showing "relevant private or public interest factors" rendering the forum inappropriate. (Id). Some factors to consider include the burden on the New York courts, hardship to Defendant, availability of an alternative forum, locus of the cause of action, and residency of the parties. (Id.). "No one factor is controlling." (Id.) If a substantial nexus exists between the claim and the jurisdiction, then Defendant has not proven that the forum is inappropriate. (See Id.; see also Silver v. Great American Ins. Co., 29 NY2d 356, 361 [1972]).

In the within action, the parties currently reside in New York, they lived in New York while married, and any rulings made in Bulgaria would place the burden of enforcing the decision on the New York courts. Additionally, there is no evidence in Bulgaria, and the only witnesses in Bulgaria are the parties' parents. Any burden imposed on the parties' parents by conducting the proceedings in New York is far outweighed by the benefits of having all parties, other witnesses, and relevant information within the same jurisdiction. Further, any financial information relevant to the proceedings will be in New York since that is where the parties lived during their marriage. Accordingly, the court finds that there exists a substantial nexus between New York and the subject marriage. Defendant's rationale for deferring to the Bulgarian proceeding is that he knows the Bulgarian system better and much of their lives are tied to Bulgaria, where they will probably return one day. Preferring the Bulgarian system does not create a significant enough inconvenience to warrant a dismissal for Forum Non Conveniens, nor does the possibility of Defendant moving back to Bulgaria permanently one day make it a more appropriate venue. Because New York is an appropriate venue, and there appears to be no venue more appropriate, Defendant's argument to dismiss or stay the matrimonial action in New York is denied.

Additionally, even if New York lacked a substantial nexus with this action and the Forum Non Conveniens factors weighed in favor of a dismissal, this court has no authority to order a dismissal pursuant to CPLR § 327 sua sponte. (See VSL Corp., 70 NY2d at 949; see also Carr v. Integon General Ins. Corp., 185 AD2d 831, 832 [2d Dep't 1992]). One of the parties must move for a dismissal pursuant to CPLR Rule 327 or such relief cannot be granted. (VSL Corp., 70 NY2d at 949). For the foregoing reasons, Defendant's motion to dismiss the matrimonial action commenced by Plaintiff is denied.

Currently, Defendant claims he is responsible for marital debt in excess of $30,000, which is supported by his 2009 Net Worth Statement, but fails to provide the information regarding exact payments owed. In order to consider Defendant's current financial obligation, the court would need to know the monthly payment amounts toward the balance. Conversely, [*6]Plaintiff has provided monthly expenses and an affidavit from her sister supporting her assertion that she is borrowing money to meet these expenses. Because the financial needs of the party seeking relief are the predominant factor in awarding child support, and Defendant has failed to provide sufficient information regarding his financial needs and obligations, the pendente lite award of child support will be determined following the guidelines set forth in the CSSA.

Based on the foregoing reasons, plaintiff's request for pendente lite relief is granted and Defendant is ordered to pay $14,338.75 in annual child support ($275.75 weekly).

Here, Defendant argues that he is responsible for the marital debt and has not been earning the same income that he did in 2009. Further, even if Defendant earns a similar income, once child support and legal fees are subtracted, Defendant's disposable income will be minimal. Defendant's financial abilities are presently unclear, and thus an order that Defendant obtain a life insurance policy is inappropriate until Defendant's financial circumstances are resolved at trial. (DGM Partners-Rye v. Board of Architectural Review of City of Rye, 176 AD2d 875, 876 [2d Dep't 1991]). Accordingly, the court reserves its decision on whether or not to order defendant to obtain a life insurance policy until that time.

A copy of this order has been mailed to the parties and/or their respective counsel.

Dated: July ____, 2010

BERNICE D. SIEGAL

J.S.C.