In the Matter of S.S.F., Petitioner, v  J.N., Respondent.

Family Court, Nassau County, December 14, 2020

Brynde Berkowitz for petitioner in the first above-entitled proceeding and respondent in the second above-entitled proceeding.

[*2]Danielle Seid-Vazana for respondent in the first above-entitled proceeding and petitioner in the second above-entitled proceeding.

Theresa Kloeckener, Attorney for the Child.

The respondent/cross-petitioner father, J.N., has moved for an order which: (1) grants his application to withdraw his cross-petition filed under docket Nos. V-00000-00/00X and V-00000-00/00X; (2) dismisses the petition filed by the petitioner/cross-respondent mother, S.S.F., under docket Nos. V-00000-00/00X and V-00000-00/00X, due to lack of subject matter jurisdiction; (3) vacates all scheduled court appearance before this court under the file No. 000000; and (4) dismisses any orders issued by this court on or subsequent to August 5, 2020. The Attorney for the Child (AFC) filed an affirmation in support of the father's motion, and the petitioner mother filed an affidavit in opposition to the father's motion. The father declined to file reply papers.

The father's motion to withdraw and dismiss is decided as follows:

The parties were married in February 2007 in the State of New York. (Aff in support of notice of mot of J.N., dated Oct. 20, 2020, ¶ 2 [J.N. aff in support of mot].) They separated in or{**70 Misc 3d at 1077} about November 2008, and the mother moved to New Jersey, where she has resided with the parties' two minor children, S.N. and T.N., for more than 10 years. (J.N. aff in support of mot ¶ 2.) The parties subsequently initiated divorce proceedings in New York, and entered into a stipulation of settlement, on November 10, 2010, which addressed custody and parenting time matters. (J.N. aff in support of mot ¶ 2; exhibit A to J.N. aff in support of mot.)

On March 23, 2017, the father commenced proceedings in this court by filing a petition by order to show cause, seeking a modification of the parties' custody arrangement as set forth in their judgment of divorce dated March 8, 2011. Their judgment of divorce incorporated but did not merge their stipulation of settlement dated November 10, 2010. Pursuant thereto, the parties shared joint legal custody of their two children and the mother was granted sole residential custody of the children. On April 24, 2017, the mother filed a cross-petition seeking modification of their custody arrangement. This court conducted a comprehensive fact-finding proceeding, spanning numerous days and involving extensive testimonial and documentary evidence. The court issued an amended and corrected final order of custody and parenting time dated January 8, 2019, which, inter alia, granted the mother sole residential and sole legal custody of the parties' children, and provided the father with parenting time (the custody and parenting time order).

On February 24, 2020, the mother filed an enforcement petition by order to show cause, in which she seeks to punish the father for contempt of court for his various alleged violations of the prevailing custody and parenting time order. The parties and their respective counsel appeared in court on February 27, 2020. On that date, the court issued a temporary order of protection (TOP) which requires, inter alia, the father to stay away from the parties' two children except for supervised parenting time as agreed to by the [*3]parties in writing. Such further requires the father to refrain from communication or any other contact by mail, telephone, email, voicemail or other electronic or any other means with the children other than supervised parenting time, unless supervised by the mother. The TOP was scheduled to expire on August 26, 2020,^[FN1] and the {**70 Misc 3d at 1078}matter was adjourned for a future court date on March 30, 2020.

The March 30, 2020 appearance was thereafter administratively adjourned multiple times due to the Governor of the State of New York issuing successive executive orders concerning the unprecedented public health emergency created by the COVID-19 pandemic. During the months in which the Family Court operated under the statewide-mandated "Virtual Chambers" model, court staff conducted numerous off-the-record attorney conferences in an effort to resolve the mother's February 2020 violation petition. The court was not permitted to conduct on-the-record appearances concerning the mother's petition during this period.

On June 16, 2020, the father filed a cross-petition seeking, inter alia, modification of the parties' prevailing custody and parenting time order to grant him sole residential and sole legal custody of the parties' children. After the court was permitted to resume "on-the-record" court appearances in pending custody and parenting time matters, the parties and counsel appeared on October 1, 2020. The court scheduled the fact-finding hearing on the parties' cross-petitions to commence January 4, 2021.

On October 2, 2020, the father relocated his residence from New York to New Jersey. (J.N. aff in support of mot ¶¶ 3-4.) On October 20, 2020, the respondent/cross-petitioner father filed the subject motion to dismiss and withdraw.^[FN2] The father's counsel argues that because the parents and the subject children now all reside in the State of New Jersey, the Family Court in Nassau County, New York, lacks subject matter jurisdiction to hear and determine any of the petitions filed by the parties. (Affirmation in support of notice of mot of Brynde Berkowitz, Esq., dated Oct. 19, 2020, ¶ 2 [Berkowitz affirmation in support of mot].)

Counsel further argues that because the children have both resided in New Jersey for more than 10 years, New Jersey is their home state and thus, New Jersey has jurisdiction over{**70 Misc 3d at 1079} custody proceedings concerning the children. (Berkowitz affirmation in support of mot ¶ 3.) She contends that New York had jurisdiction over the initial custody determination (even though New York was not the children's home state) because the father still resided in New York and the children had a "significant connection" with New York at that time. (Berkowitz affirmation in support of mot ¶ 4.) She further contends that, because the father no longer resides in New York and no longer has any scheduled parenting time with the children in New York, there is no longer a significant connection between any of the parties, including the children, and New York. (Berkowitz affirmation in support of mot ¶ 5.)

She further argues that lack of subject matter jurisdiction is a jurisdictional defect that is [*4]not deemed waivable and that such defect may be raised at any point during custody proceedings and may (or must) be raised "sua sponte" by the court. (Berkowitz affirmation in support of mot ¶ 7.)

The AFC has submitted an affirmation in support, in which she argues that the court must grant the father's motion to dismiss and withdraw due to lack of subject matter jurisdiction, because as of the date of the filing of the father's motion, neither the father, the mother or the subject children reside within the court's jurisdiction. (Affirmation in support of mot by Theresa Kloeckener, Esq., dated Nov. 8, 2020, ¶ 4 [Kloeckener affirmation in support of mot].) The AFC contends that, under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), the New York State Family Court in Nassau County retained subject matter jurisdiction over all petitions filed after their initial custody order, but the court lost jurisdiction once the father left New York State and began residing in New Jersey. (Kloeckener affirmation in support of mot ¶ 7.)

In opposition to the father's motion to dismiss and withdraw, the mother requests that the court only permit the father to withdraw his pending petition "with prejudice." (Aff in opp of S.S.F., dated Nov. 6, 2020, ¶ 2 [S.S.F. aff in opp].) She asserts that New Jersey has been the children's home state for most of their lives, and that she and the children had been residing in New Jersey for several years when the father filed an earlier custody modification proceeding in the Nassau County Family Court in 2017. (S.S.F. aff in opp ¶ 2.)

She contends that all of the father's violations alleged in her pending enforcement petition occurred while he still resided in{**70 Misc 3d at 1080} New York, and that all of the evidence supporting her pending petition has ties to and/or is located in New York. (S.S.F. aff in opp ¶ 3.) The mother and her attorney both believe that the father plans to refile his petition in New Jersey in the hopes that he will obtain a favorable result in a different court. (S.S.F. aff in opp ¶ 2; affirmation in opp of Danielle J. Seid-Vazana, Esq., dated Nov. 6, 2020, ¶ 1 [Seid-Vazana affirmation in opp].)

The mother's counsel further contends that, particularly in the case of the mother's February 2020 violation petition, substantial evidence is available in New York concerning the children's present and future welfare. (Seid-Vazana affirmation in opp ¶ 1.) She further contends that New York has exclusive, continuing jurisdiction to determine custody when there is ample evidence of a significant connection by the child with New York. (Seid-Vazana affirmation in opp ¶ 2.) The mother's counsel "pleads" with the court to deny the father's application, as it will result in the vacatur of the temporary order of protection issued by this court. (Seid-Vazana affirmation in opp ¶ 3.)

The court will first address the petitioner's application to withdraw his June 2020 modification petition. Although the father's motion does not expressly state that he is seeking to withdraw without prejudice, a voluntary discontinuance is generally "without prejudice" unless the order, notice or stipulation of discontinuance states otherwise. (Matter of Reid v Brown, 165 AD3d 949, 950 [2d Dept 2018].) The mother requests in her opposition papers that the court require such withdrawal to be done "with prejudice."

"The determination of whether, and upon what terms and conditions, to grant an application to discontinue an action under CPLR 3217 (b) lies within the sound discretion of the court." (Matter of Hersh v Cohen, 171 AD3d 1062, 1064 [2d Dept 2019]; Matter of Sellers v Gardner, 166 AD3d 785, 786 [2d Dept 2018]; CPLR 3217 [b] ["Voluntary discontinuance"; "By order of court"].) However, an application to discontinue without prejudice "should be granted[*5]'unless the discontinuance would prejudice a substantial right of another party, circumvent an order of the court, avoid the consequences of a potentially adverse determination, or produce other improper results.' " (Chase Home Fin., LLC v Sulton, 185 AD3d 646, 646-647 [2d Dept 2020]; Turco v Turco, 117 AD3d 719 [2d Dept 2014].)

{**70 Misc 3d at 1081}[1] In this case, the court finds that the mother has not established a basis for denying the father's application to withdraw his petition without prejudice. In contrast to cases where courts were required to deny applications to withdraw "without prejudice," it does not appear to this court that the father's withdrawal is being undertaken for the purpose of evading a negative outcome by order or statute. (Compare e.g. Tucker v Tucker, 55 NY2d 378, 384 [1982].)

Additionally, the court notes that permitting the father to withdraw without prejudice has no impact on the prevailing custody and parenting time order. Likewise, his withdrawal without prejudice does not invalidate or otherwise impact the TOP, which was issued under the mother's February 2020 violation petition. The mother's concerns about potentially having to incur additional costs and expenses should the father refile his modification petition in New Jersey are speculative and unsubstantiated and, furthermore, "[d]elay, frustration and expense in preparation of a contemplated defense do not constitute prejudice" for the purposes of denying an application to voluntarily discontinue an action. (Eugenia VI Venture Holdings, Ltd. v MapleWood Equity Partners, L.P., 38 AD3d 264, 265 [1st Dept 2007]; see also Michael v Michael, 209 AD2d 1055, 1055 [4th Dept 1994].) Overall, the court finds that the record does not demonstrate a cognizable prejudice to the mother which would result from the court granting the father's application to withdraw his June 2020 modification petition without prejudice.

Accordingly, that portion of the father's motion requesting leave to withdraw his June 2020 modification petition without prejudice is granted.

[2] Turning next to the father's application to dismiss the mother's February 2020 violation petition due to divestiture of jurisdiction, New York State has adopted the Uniform Child Custody Jurisdiction and Enforcement Act, as codified in article 5-A of the Domestic Relations Law. (Matter of Helmeyer v Setzer, 173 AD3d 740, 742 [2d Dept 2019].) New York's adoption of the UCCJEA was, "among other things, 'designed to eliminate any jurisdictional competition between courts and strengthen jurisdictional certainty in child custody proceedings.' " (Matter of Montanez v Tompkinson, 167 AD3d 616, 618 [2d Dept 2018]; Matter of Felty v Felty, 66 AD3d 64, 69 [2d Dept 2009].)

The father argues that this court has been divested of its exclusive, continuing jurisdiction under Domestic Relations {**70 Misc 3d at 1082}Law § 76-a (1). Pursuant thereto, this court's "exclusive, continuing jurisdiction continues uninterrupted unless and until one of the two contingencies enumerated in subdivision 1 occurs." (Merril Sobie, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, Domestic Relations Law § 76-b.) The first possible contingency which could divest the court of its exclusive, continuing jurisdiction is where "a court of this state determines that neither the child, [nor] the child and one parent . . . have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships." (Domestic Relations Law § 76-a [1] [a].) The term "significant connection" is not statutorily defined. It is to be determined on a "case-by-case basis." (Merril Sobie, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, Domestic Relations Law § 76-b.)

The second potential contingency "which results in the loss of exclusive, continuing jurisdiction is where neither the child, nor the child's parents, nor any person acting as a parent, [*6]presently reside in New York." (Merril Sobie, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, Domestic Relations Law § 76-b; Domestic Relations Law § 76-a [1] [b].)

In determining whether either of these two contingencies apply to a proceeding, the question is whether the court had jurisdiction over the proceeding at the time that the petition was filed. (Matter of Guzman v Guzman, 92 AD3d 679, 680 [2d Dept 2012]; Matter of Blerim M. v Racquel M., 41 AD3d 306, 310 [1st Dept 2007]; Merril Sobie, 2012 Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 14, Domestic Relations Law § 76-b [the petition filing date controls when determining whether there is jurisdiction under the UCCJEA]; Uniform Child Custody Jurisdiction and Enforcement Act [1997] § 202, Comment, ULA Child Cust Jur & Enf § 202, Comment [2019] ["Jurisdiction attaches at the commencement of a proceeding"].)

In this case, the court finds that neither of the two contingencies set forth in Domestic Relations Law § 76-a has occurred with respect to the mother's February 2020 violation petition. As to the "significant connection" contingency (Domestic Relations Law § 76-a [1] [a]), the court finds that substantial evidence is available in New York concerning the allegations set{**70 Misc 3d at 1083} forth in the mother's February 2020 violation petition, particularly the allegations that the father violated the prevailing custody and parenting time order when he took their daughter to a pediatrician in C., New York, and which resulted in involvement by the Nassau County, New York, Department of Social Services.

Likewise, the mother's February 2020 violation petition included allegations concerning the father's parenting time with the children which took place in New York, where the father then resided. At the time that the father resided in New York, the children's stepmother and stepsiblings also resided in New York. The children visited with doctors in New York and they communicated with the father while he resided in New York. While it is undisputed that New Jersey has been the children's home state for many years, their significant connection with that state does not diminish that they also had a significant connection with New York when the mother filed her violation petition. (See Matter of Helmeyer v Setzer, 173 AD3d 740, 743 [2d Dept 2019].)

Likewise, the father relocating his residence from New York to New Jersey did not divest this court of jurisdiction over the mother's February 2020 violation petition, as the relocation occurred in October of 2020, well after she filed her petition. (See Domestic Relations Law §§ 76-a, 76-b; Matter of Guzman, 92 AD3d at 680; Merril Sobie, 2012 Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 14, Domestic Relations Law § 76-b [the petition filing date controls when determining whether there is jurisdiction under the UCCJEA]; Uniform Child Custody Jurisdiction and Enforcement Act [1997] § 202, Comment, ULA Child Cust Jur & Enf § 202, Comment [2019] ["Jurisdiction attaches at the commencement of a proceeding. If State A had jurisdiction under this section at the time a modification proceeding was commenced there, it would not be lost by all parties moving out of the State prior to the conclusion of proceeding"].)

Therefore, the court finds that it has not been divested of its continuing and exclusive jurisdiction with respect to the mother's February 2020 violation petition. The portion of the father's motion which seeks dismissal of the mother's February 2020 violation petition is denied.

Accordingly, it is hereby ordered that the portion of the father's motion for leave to withdraw his June 2020 modification{**70 Misc 3d at 1084} petition without prejudice is granted; and it is further ordered that the portion of the father's motion seeking dismissal of the mother's February 2020 violation petition is denied; and it is further ordered that all other applications not addressed herein are deemed denied.