OPINIONDrager, J. Plaintiff, Erin Taylor Reish (the Wife), moves, pursuant to CPLR 3211 (a) (4), for an order restraining defendant, Timothy George Reish (the Husband), from proceeding with his action for divorce against plaintiff in the state of Ohio. Defendant cross-moves for an order dismissing the action for failure to satisfy the residency requirements of Domestic Relations Law § 230, or alternatively, pursuant to CPLR 327, dismissing the action on the basis of forum non conveniens.
The parties were married on July 13, 1996 in Ohio. There are two children of the marriage, John Michael Reish, born on March 3, 1999 and Nicholas William Reish, born on April 29, 2001 (the Children).
The Wife commenced the instant action for divorce on March 7, 2005 (the New York Action). The Husband was served with the summons and verified complaint on March 8, 2005. On March 21, 2005, the Husband filed an action for divorce in Franklin County, Ohio (the Ohio Action). The Wife was served with the complaint in the Ohio Action on April 4, 2005.
The Wife now moves for an order, pursuant to CPLR 6301 [*2] , enjoining the Husband from prosecuting the Ohio Action, essentially arguing that the New York Action takes precedence over the subsequently filed Ohio Action for the same relief.
Defendant opposes plaintiff's request, and instead moves to dismiss the instant divorce action. He initially seeks dismissal based upon his contention that he is not a resident of the State of New York as required by Domestic Relations Law § 230, claiming that he considers himself a resident of the State of Ohio. He maintains that, while he has been working and residing in the State of New York for the past year, he returns to the marital residence in Ohio every few weeks. He also contends that almost all of his personal possessions are in Ohio Alternatively, he argues that the instant action should be dismissed based on forum non conveniens, since custody of the Children is an issue. He maintains that, under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), this court could not assert jurisdiction over the Children for the following reasons: (1) the Children have been residing in Ohio since August 2003; (2) they have no significant connections to New York; and [*3] (3) there is little evidence about their care in New York.
The Wife contends that the residency requirements have been fulfilled as required by Domestic Relations Law §§ 230 (2) and (3), in that the parties resided in New York as husband and wife with their two children during the marriage and the Husband resides and works in New York. Additionally, she opposes dismissal on the ground of forum non conveniens, arguing, inter alia, that the Husband's concerns regarding custody are not genuine. She contends that New York is the most convenient place to secure relevant information concerning the Husband's income and assets, and the venue where she can obtain compensation for her contribution to the marriage, to the Husband's medical career and to his enhanced earning capacity, under O'Brien v. O'Brien [66 NY2d 576, 489 N.E.2d 712, 498 N.Y.S.2d 743 (1985)]. Additionally, she maintains that the Husband's challenge to her request for custody is insincere. She requests, in the event that custody is an issue, that this court bifurcate that issue from the stay of the Ohio Action she seeks, and permit the New York Action to go forward on the issues of divorce and equitable distribution.
[*4] This court shall first address the Husband's application for dismissal of the instant action. Pursuant to Domestic Relations Law § 230, an action for divorce may be maintained in New York only when, inter alia, the parties have resided in this state as husband and wife and either party is a resident thereof for a continuous period of at least one year immediately preceding the commencement of the action [Domestic Relations Law § 230 (2)]. Proof of either domicile or residency is sufficient to demonstrate compliance with Domestic Relations Law § 230 [Capdevilla v. Capdevilla, 149 AD2d 312, 312-313, 539 N.Y.S.2d 365 (1st Dept 1989)]. "[W]hile residency and domicile are not interchangeable, the determination of whether a party is a resident of New York State depends upon 'whether he has a significant connection with some locality in the State as the result of living there for some length of time during the course of a year' " [Wittich v. Wittich, 210 AD2d 138, 139, 620 N.Y.S.2d 351 (1st Dept 1994), quoting Antone v. General Motors Corp., Buick Motor. Div., 64 NY2d 20, 30, 473 N.E.2d 742, 484 N.Y.S.2d 514 (1984)].
Here, it is undisputed [*5] that the parties lived in New York as Husband and Wife during the marriage for a period of approximately one year, while the Husband completed his fellowship for orthopedic surgery, and that they then moved to Ohio in August 2003. Thereafter, the Husband returned to New York. He acknowledges that he has been working and renting an apartment in New York for one year before this action began. His contentions that he has not moved out of the marital residence in Ohio, and that most of his personal possessions are in Ohio are disputed by the Wife. Nonetheless, the Husband's admissions sufficiently establish that he has resided in New York with a substantial degree of continuity and permanence to satisfy the durational residency requirements of Domestic Relations Laws § 230, notwithstanding the existence of his alleged continued residence in Ohio (see, Wittich v. Wittich, 210 AD2d 138, 620 N.Y.S.2d 351, supra). Since a person may have many residences [see Davis v. Davis, 144 AD2d 621, 535 N.Y.S.2d 23 (2d Dept 1988)], the Husband is not entitled to dismissal of the New York Action based on his alleged nonresident status.
The Husband alternately requests dismissal of [*6] the New York Action, pursuant to CPLR 327, on the basis of forum non conveniens. The common-law doctrine of forum non conveniens, as codified in CPLR 327, is a highly flexible concept, founded upon the equitable principles of justice, fairness, and convenience [Islamic Republic of Iran v. Pahlavi, 62 NY2d 474, 467 N.E.2d 245, 478 N.Y.S.2d 597 (1984), cert denied 469 U.S. 1108, 105 S. Ct. 783, 83 L. Ed. 2d 778 (1985)]. Under this doctrine, a court, after considering and balancing several competing objective factors, may entertain or decline to entertain jurisdiction over an action (id.). Although no one factor is controlling (id.), factors include the "difficulties for defendant in litigating the claim in this State, the burden on the New York courts in entertaining the suit and the availability of another more convenient forum in which plaintiff may obtain redress" [Banco Ambrosiano, S.p.A. v. Artoc Bank & Trust Ltd., 62 N.Y.2d 65, 73, 464 N.E.2d 432, 476 N.Y.S.2d 64 (1984)]. The defendant challenging the forum has the heavy burden of establishing that New York is an inappropriate forum before plaintiff's choice of forum is disturbed [id.; Highgate Pictures, Inc. v. De Paul, 153 AD2d 126, 549 N.Y.S.2d 386 (1st Dept 1990)]. [*7]
The Husband's request for dismissal on the ground of forum non conveniens is primarily based on his contention that, pursuant to the UCCJEA, New York has no jurisdiction to determine plaintiff's request for custody of the Children. "[W]here, as here, child custody is sought as ancillary relief and there is a simultaneous divorce proceeding in the court of another State, a court must initially determine whether the child custody phase of the litigation should proceed in a foreign court" [Kilcullen v. Bubanj, 116 Ad2d 470, 496 N.Y.S.2d 740 (1st Dept 1986)]. Domestic Relations Law Art 5-A (§§ 75 et seq.), known as the UCCJEA, offers a standard for determining in the first instance whether the necessary predicate for jurisdiction exists regarding custody disputes [see, Vanneck v. Vanneck, 49 NY2d 602, 404 N.E.2d 1278, 427 N.Y.S.2d 735 (1980)]. Except as otherwise provided in Domestic Relations Law § 76 (c), New York has jurisdiction to make an initial child custody determination only if: New York "is the home state of the child on the date of commencement of the proceeding, or was the home state of the child within six months before the commencement of the [*8] proceeding…" [Domestic Relations Law § 76 (1) (a)]. "Home state" is defined as "the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding" [Domestic Relations Law § 75-a (7)]. A jurisdictional predicate also exists in New York where "a court of another state does not have jurisdiction under paragraph (a) of this subdivision, or a court of the home state of the child has declined to exercise jurisdiction on the ground that [New York] is the more appropriate forum . . . " [Domestic Relations Law § 76 (1) (b)], and the child and at least one of the parents "have a significant connection with this state other than mere physical presence; and substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships" [Domestic Relations Law § 76 (1) (b) (i) & (ii)].
Pursuant to UCCJEA, this court does not have jurisdiction to determine custody of the Children, since New York was not the home state of the [*9] children at or within six months prior to the commencement of the New York Action in March 2005 [Domestic Relations Law § 76 (1) (a)]. The Wife and the Children have indisputably lived in Ohio since the summer of 2003, and Ohio is the Children's home state. Further, the Ohio Common Pleas Court, in Franklin County, has exercised jurisdiction over the custody issue, by issuing a restraining order in the Ohio Action against the Wife from permanently removing the Children of the marriage from the jurisdiction of the Ohio Court, until further order of that court (Reish v. Reish, Ohio Common Pleas Court, Franklin County, March 22, 2005, Browne, J., Index No. 05DR 03 1120). To this court's knowledge, Ohio has not declined exercising further jurisdiction over the custody issue, and its retention of jurisdiction would be in conformity with the UCCJEA. Additionally, all relevant evidence regarding the Children's health and well-being, present or future care, schooling, training, and personal relationships is more readily available in Ohio [Domestic Relations Law § 76 (1) (b) (i) & (ii); see Hellinger v. Hellinger, 217 AD2d 490, 629 N.Y.S.2d 753 (1st Dept 1995)]. [*10]
The Wife suggests that the Husband's challenge to her request for custody is insincere. The Husband does not--and cannot--dispute the fact that he has spent relatively little time with the Children since he left the marital residence. Moreover, although he claims that he might leave New York to resume residing in Ohio to be closer to his children, he has not done so thus far. Nonetheless, the record discloses that the Husband's papers in the Ohio Action reflect his request for "an allocation of parental rights" in his complaint for divorce, and in his motion for a temporary order (The Husband's Complaint for Divorce in the Ohio Action, at 2; The Husband's Motion for Temporary Orders). These papers sufficiently evidence the Husband's intentions regarding custody. Plainly, the issue of custody must be addressed in Ohio. Generally, this court is reluctant to bifurcate a case between two jurisdictions. Yet the unique circumstances here justify that result. Although the Husband has raised a sufficient basis to challenge custody, the circumstances of the family life over the past year raise concern that the Husband's claim for custody is merely a litigation strategy to avoid having a New [*11] York court consider the financial issues arising from this marriage. The most significant "asset" of this marriage is the Husband's medical license, acquired during the parties' nine year marriage. The Husband was able to pursue his medical school education at least in part as a result of the Wife's financial contributions. A portion of the Husband's enhanced earning capacity was acquired while the parties resided in New York and the Husband returned to practice in New York, undoubtedly as a result of the professional connections he established during the marriage. He resided in New York for a full year before this action began. To allow him to benefit from the Wife's assistance to the development of his medical career potential without allowing the Wife to benefit as well would be inequitable. As counsel for the Wife correctly notes, the situation here is directly comparable to the injustice our Court of Appeals sought to address in the O'Brien case.
The Wife cannot receive the same consideration in Ohio. Ohio courts do not recognize a professional degree or license as marital property, and the projected future earnings of the spouse holding a degree is not a marital asset subject [*12] to division upon divorce. Ohio may consider "the future value of a professional degree or license acquired by one of the parties during the marriage (as) an element to be considered in reaching an equitable award of alimony . . . " [Stevens v. Stevens, 23 Ohio St.3d 115, 120, 23 Ohio B. 273, 492 N.E.2d 131 (1986)]. Thus, the Ohio court might consider the Wife's contributions in determining an award of alimony. However, in this case, where the Wife has a significant career potential as indicated by her earnings during the marriage, it is unclear she would receive a substantial alimony award.
Moreover, the court notes that New York is the more convenient forum in determining the Husband's financial circumstances since he resides and works here. The only significant asset in Ohio appears to be the marital residence, an asset easily valued. The Wife's earning potential is easily determined based on her past earnings. Thus, resolving issues of maintenance and child support, once custody is resolved, can be easily addressed in New York. The court also notes that since both parties are seeking a divorce, it is unlikely that grounds will be an issue.
Upon balancing the relevant factors, this court finds that [*13] the Husband has not met his burden in demonstrating that New York is an inconvenient forum for resolving the divorce or the financial issues [Wittich v. Wittich, supra]. Moreover, resolution of the financial issues in New York will result in a more equitable dissolution of this marriage under the particular facts presented.
In light of the foregoing, the Wife's motion for an order restraining the Husband from proceeding with his action for divorce against plaintiff in the state of Ohio is granted, except to the extent that the issue of custody shall be referred to the Ohio court. The Husband's cross-motion is denied.
Accordingly, it is
ORDERED that the Wife's motion for an order restraining the Husband from proceeding with his action for divorce against plaintiff in the state of Ohio is granted, except to the extent that the issue of custody shall be severed from the New York action and referred for continued disposition in the pending Ohio action; and it is further
ORDERED that the Husband's cross motion is denied.