Tuesday, March 9, 2010

DIVORCE - VENUE

A often contested issue in matrimonial actions is which court is the proper venue. Of course, to obtain the divorce the proper court is the Supreme Court but in which county? Generally, venue is based on residence and section 503 (a) N.Y.C.P.L.R. provides in part:

"(a) Generally. Except where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced; or, if none of the parties then resided in the state, in any county designated by the plaintiff. A party resident in more than one county shall be deemed a resident of each such county."

And generally, as per section 509 N.Y.C.P.L.R:

"Notwithstanding any provision of this article, the place of trial of an action shall be in the county designated by the plaintiff, unless the place of trial is changed to another county by order upon motion, or by consent as provided in subdivision (b) of rule 511.

Section 510 N.Y.C.P.L.R. provides:

"The court, upon motion, may change the place of trial of an action where:

1. the county designated for that purpose is not a proper county; or

2. there is reason to believe that an impartial trial cannot be had in the proper county; or

3. the convenience of material witnesses and the ends of justice will be promoted by the change."

And section 511 N.Y.C.P.L.R. provides:

"(a) Time for motion or demand. A demand under subdivision (b) for change of place of trial on the ground that the county designated for that purpose is not a proper county shall be served with the answer or before the answer is served. A motion for change of place of trial on any other ground shall be made within a reasonable time after commencement of the action.

(b) Demand for change of place of trial upon ground of improper venue, where motion made. The defendant shall serve a written demand that the action be tried in a county he specifies as proper. Thereafter the defendant may move to change the place of trial within fifteen days after service of the demand, unless within five days after such service plaintiff serves a written consent to change the place of trial to that specified by the defendant. Defendant may notice such motion to be heard as if the action were pending in the county he specified, unless plaintiff within five days after service of the demand serves an affidavit showing either that the county specified by the defendant is not proper or that the county designated by him is proper.

(c) Stay of proceedings. No order to stay proceedings for the purpose of changing the place of trial shall be granted unless it appears from the papers that the change is sought with due diligence.

(d) Order, subsequent proceedings and appeal. Upon filing of consent by the plaintiff or entry of an order changing the place of trial by the clerk of the county from which it is changed, the clerk shall forthwith deliver to the clerk of the county to which it is changed all papers filed in the action and certified copies of all minutes and entries, which shall be filed, entered or recorded, as the case requires, in the office of the latter clerk. Subsequent proceedings shall be had in the county to which the change is made as if it had been designated originally as the place of trial, except as otherwise directed by the court. An appeal from an order changing the place of trial shall be taken in the department in which the motion for the order was heard and determined."

Many times in a divorce, one party moves to another county for many different reasons and many times a motion is made by one party to change venue and sometimes these motions are a barometer of the animosity between the parties. For example in RIDER v. RIDER, 2008 NY Slip Op 50334(U) (Supreme Court of the State of New York, Yates County. Decided on February 25, 2008):

"Defendant in this matrimonial action seeks a change in venue from Yates County to Suffolk County. Defendant states that she has an infant child, does not own a car, and it is a 12 hour round trip to Yates County. Further, it will be a financial burden for her to travel, since she is trying to find a job after being left in Georgia, penniless while five months pregnant.

Plaintiff opposes the defendant's application and by attorney affirmation notes Yates County is a proper venue, since the plaintiff lives in Yates County. Also, there is no reason to believe an impartial trial cannot be had here. Plaintiff argues that the convenience of material witnesses and the ends of justice provision of CPLR § 510 has been consistently interpreted to involve witnesses only, not parties.

Plaintiff in his affidavit in opposition says the defendant left the parties' former residence on her own. Her father sent her a plane ticket. She is not penniless, because the plaintiff has paid on two of her credit cards after she left for a total of $225 a month for four months, and he sent her $2000 on December 21, 2007. He believes the defendant lives with her mother, who has two vehicles, and she has the use of one of them.

Plaintiff also has limited funds. He is an Iraq war veteran, and is presently unemployed, and has spent most of his discharge pay. He was injured, and medically discharged November, 2007.

Clearly, defendant is basing her motion on CPLR § 510(3), since the other two reasons for change of venue do not apply. The case law in this area is sparse. In Bunker v Bunker, 73 AD2d 530, involving post judgment relief, the First Department held that Special Term did not abuse its discretion in denying a change of venue even though the divorce had been obtained in another county. The court stated: "There is no showing that the convenience of material witnesses will be served and the ends of justice promoted by such change of venue. Defendant has not even indicated the substance or materiality of the testimony to be given by these witnesses." Id., cites omitted.

Here, venue having been properly laid in Yates County, and there being competing
interests of both parties regarding venue, this Court will retain venue in this matter. The parties may be able to settle some of the issues of the divorce between themselves, and the court urges them to do so to the extent possible. Further, if court appearances are necessary, they can be scheduled with the convenience of the defendant in mind.

The motion is denied.

The foregoing constitutes the Opinion, Decision and Judgment of the Court.

SO ORDERED."

No comments:

Post a Comment