Senate Bill S5736A

                                
 
BILL NUMBER: S5736A

SPONSOR: BONACIC
 
TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to venue in matrimonial actions

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge on the recommendation of his Matrimonial
Practice Advisory and Rules Committee.

This measure would add a new rule 514 to the CPLR to require that venue
in a matrimonial action be fixed in a county where one of the parties to
such action resides absent good cause being shown to fix it elsewhere.

This measure continues our effort to address a problem with venue rules
in matrimonial actions. It furthers the Chief Judge's Excellence Initi-
ative by promoting more efficient disposition of uncontested divorce
cases while, at the same time, furthering access to justice. In short,
it promotes both "operational" and "decisional" excellence.

Matrimonial plaintiffs regularly resort to CPLR 509 as authority to
designate venue in the county of their choice (often New York County),
even though none of the parties resides in that county. The reason why
              

CPLR 509 venue designations are so frequent is partly because they
convenience attorneys, who do not want to travel to file papers, and
partly because they enable parties to take advantage of what is widely
believed to be expedited processing of divorces in certain counties such
as New York County. The problems arising from being "a mecca for matri-
monial matters" were pointed out in Castaneda v Castaneda, 36 Misc 3d
504, at 506 (Sup Ct 2012), where Justice Matthew Cooper discussed the
burden on New York County's judicial resources, especially for uncon-
tested divorces.*

Besides identifying the huge burden on New York County's judicial
resources and the resulting unfairness to residents of the County,
Justice Cooper noted that CPLR 509 designations increase the likelihood
that defendants who reside in foreign counties will not respond to a
summons and will default in the action. Rather than travel to a distant
county, i.e., travel that may be expensive and time consuming, a matri-
monial defendant spouse is more likely to do nothing or mail back the
defendant's affidavit consenting to an uncontested divorce. As a result,
divorce mills flourish, and the number of uncontested divorces processed
in counties like New York County increases. When these defendants later
understand the consequences of their default, in that important issues
relating to spousal support, custody and support of children, and
distribution of marital property have been inadequately addressed in the
action, they try to vacate the default or bring actions for post judg-
ment relief to modify its terms. "A good portion of the post judgment
matrimonial motions heard in this county are those brought by out-of-
county defendants seeking to vacate default judgments." Castaneda v
Castaneda, supra, at 511. Clearly, CPLR 509 venue designations in coun-
ties not related to residence of the parties or their children are
inconsistent with the goals of efficiency and access to justice.

We are aware that the problem is not limited to New York County.
Indeed, it is a major concern of matrimonial judges in large metropol-
itan venues like Erie, Monroe, Nassau, Suffolk and Westchester Counties,
as well as other counties in New York City, all of which confront
particularly large numbers of uncontested divorce actions.** While New
York County unquestionably bears the greatest burden with its 12,799
uncontested divorce filings in 2015 and 11,340 such filings in 2016,
there can be no doubt that the need for divorce venue reform is a state-
wide issue, not limited to one county.

Also contributing to court burdens in these overburdened counties is the
increasing number of e-filed applications for matrimonial relief having
no nexus to the jurisdiction because CPLR 509 positively invites such
filings. Compounding the need for this measure is a 2017 law amending
CPLR 503(a) to permit as another option to venue related to residence,
venue in a county in which a substantial part of the events or omissions
giving rise to the claim occurred. This new law does not affect
plaintiff's ability to designate venue unrelated to residence pursuant
to CPLR 509, which remains unchanged. L. 2017, c.  366. It was not
designed with matrimonial actions in mind, and only underscores an
urgency for the instant measure. Not only does this measure override
CPLR 509 designations except where expressly permitted in cases where
party addresses are not a matter of public record or where confidential-
ity orders exist, it also overrides the provisions of the new law.

Many thoughtful proposals have been made in the last few years concern-
ing ways to change CPLR rules in matrimonial actions by bar association
groups and New York County judges and clerks. These proposals would
amend CPLR 509 to override plaintiffs' ability to designate the place of
trial in divorce actions. Under existing CPLR 509, only plaintiff has
this ability and, under existing CPLR 510(1), only defendant may demand
a change in the designation.*** Courts may not change plaintiff's desig-
nations of venue in matrimonial actions outside the county of residence
of one of the parties if defendants do not ask for a change in
venue.**** One such proposal to change the divorce venue rules would
have applied only to divorces involving minor children of a marriage. We
agree that venue in divorces involving minor children should relate to
residence so that the courts can make appropriate decisions as to custo-
dy and parenting time and support as to the child, having, where appro-
priate, the involvement of an attorney for the child familiar with the
services available where the child resides. At the same time, we believe
all divorce actions should have venue related to residence. Another such
proposal by the New York State Bar Standing CPLR Committee would have
applied to all matrimonial actions, but it required venue to be the
county of residence of a party, not taking into account at all the resi-
dence of the children.

The instant measure reflects changes we have made in past proposals on
this subject, intended to make it even stronger in several major
respects related to good cause exceptions. First, those past proposals
required that venue be the residence of one of the parties while allow-
ing courts to consider the residence of a child or children of the
marriage through a good cause exception also permitting courts to
consider situations where addresses are unknown or subject to a confi-
dentiality order. In the instant measure, venue in matrimonial actions
shall be in a county in which either party resides, or, if there are
minor children of the marriage, in a county where one of the parties or
a child or children of the marriage resides. Thus, good cause applica-
tions will not be necessary where there are children.

In the instant measure, we also address concerns expressed by Sanctuary
for Families regarding our 2017 divorce venue post judgment application
court rule proposal when the address of either party and their
child(ren) is not a matter of public record or subject to an existing
confidentiality order. This measure provides that, in such cases where
confidentiality and safety are paramount concerns, the place of trial
designated by plaintiff may be as specified pursuant to CPLR 509. This
conforms the measure to the rule on divorce venue post judgment applica-
tions adopted in 2017.

Note that this measure provides only one good cause venue exception
rather than two. One of the good cause exceptions in our prior proposal
could be read as allowing sua sponte transfers of venue by judges.
Concerns were expressed to the Committee by the New York State Bar Asso-
ciation Family Law Section about the possibility of sua sponte transfers
of venue to a county with no nexus to the parties simply because the
judges in that county were less busy, when the venue originally desig-
nated was proper to begin with. Therefore, this measure retains only the
second good cause exception. Rather than allow courts to transfer venue
to another county, a time-consuming process fraught with delays, this
exception requires that venue be proper in the first place, but gives
the court authority for good cause shown to allow the trial to proceed
in the county where it was brought. This exception might be appropriate
where neither party to the divorce action or their child(ren) resides in
New York State.  Such designation of venue would be improper under this
measure, which requires that venue be the residence of one of the
parties or their child(ren). However, the plaintiff could make a motion
to have it remain in the county designated under the good cause excep-
tion where, for example, the parties and their child(ren) had recently
left the State. The good cause exception also might be useful to a low-
income litigant who could only find pro bono or reduced fee represen-
tation in a county that was not the residence of the parties or their
child(ren).

In addition to the foregoing changes, this measure is much simpler and
easier to understand. Nevertheless, it will accomplish the purpose of
eliminating excessive venue designations in counties unrelated to resi-
dence of the parties or their child(ren), whether pursuant to CPLR 509
or, because of the recent changes adopted by chapter 366 of the Laws of
2017, through amendments to CPLR 503(a). This, in turn, will insure that
courts have available to them important information about children and
families that would not be available were venue not related to resi-
dence.

Under this measure, delays in transferring venue sua sponte will be
avoided. It is only when the court decides not to allow a trial to
proceed when a venue transfer will be needed. Thus, the percentage of
transfers of venue will be much smaller. Moreover, by having a separate
CPLR rule for matrimonial venue, just as there is a separate rule for
consumer credit cases in CPLR 513, this measure avoids the cumbersome
drafting problems entailed in amending sections of the CPLR (such as
CPLR 509 and 510) intended to apply to all types of actions. CPLR 514,
as proposed in this measure, should have no impact on non-matrimonial
actions.

This measure, which would have no meaningful fiscal impact on the State,
would take effect 60 days after it shall have become a law and shall
apply to matrimonial actions commenced on or after such effective date.
 
2017-18 LEGISLATIVE HISTORY:

Senate 5736 (Sen. Bonacic) (referred to Judiciary)
Assembly 9920 (M. of A. Dinowitz) (reported referred to Codes)



* Court statistics show that in 2011 there were 49,785 uncontested
divorces filed statewide of which 14,352 were filed in New York County
and 27,687 were filed in all of New York City. Thus, in 2011, approxi-
mately 29% of the statewide uncontested filings were filings in New York
County and approximately 52% of New York City uncontested filings were
in New York County. In 2012, there were 46,201 uncontested divorces
filed statewide of which 13,519 were filed in New York County and 24,465
were filed in all of New York City. Thus, in 2012, approximately 29% of
the statewide uncontested filings were filings in New York County and
approximately 55% of New York City uncontested filings were in New York
County. In 2013, there were 47,500 uncontested divorces filed statewide
of which 14,479 were filed in New York County and 26,051were filed in
all of New York City. Thus, in 2013, approximately 30% of the statewide
uncontested filings were filings in New York County and approximately
56% of New York City uncontested filings were in New York County. In
2014, there were 46,974 uncontested divorces filed statewide of which
13,662 were filed in New York County and 25,990 were filed in all of New
York City. Thus, in 2014 approximately 29% of the statewide uncontested
filings were filings in New York County and approximately 53% of New
York City uncontested filings were in New York County. In 2015, there
were 47,358 uncontested divorces filed statewide of which 12,799 were
filed in New York County and 26,295 were filed in all of New York City.
Thus, in 2015 approximately 27% of the statewide uncontested filings
were filings in New York County and approximately 49% of New York City
uncontested filings were in New York County. In 2016, there were 45,150
uncontested divorces filed statewide of which 11,340 were filed in New
York County and 24,327 were filed in all of New York City. Thus, in 2016
approximately 25% of the statewide uncontested filings were filings in
New York County and approximately 47% of New York City uncontested
filings were in New York County. These figures show that the burden on
New York County has remained constant since 2011, but has decreased from
29% to 25% of statewide uncontested filings and from 52% to 47% of New
York City uncontested filings. See Appendix "E" to the Committee's 2018
Annual Report available at
http://www.nycourts.gov/ip/judiciaryslegislative/pdfs/20 8-M atrimo-
nialPractice-ADV-R eportpdf, showing court statistics attached which
have been updated through 2016.

**In 2014, Uncontested divorce filings for the Bronx were 3,914, for
Kings were 4,331, for Queens were 3,556, and for Richmond were 527.  In
2015, Uncontested divorce filings for the Bronx were 3,845, for Kings
were 4,389, for Queens were 4,719, and for Richmond were 543.  In 2016,
Uncontested divorce filings for the Bronx were 4,382, for Kings were
3,983, for Queens were 4,013, and for Richmond were 609.

***In the CPLR Practice Commentaries, Vincent Alexander explains: "CPLR
510 specifies three grounds for a motion to change venue. Subdivision
(1) provides for such motion when venue is improper, i.e., plaintiff has
failed to comply with the rules specified in CPLR 501 and 503-508 or
some other venue-regulating statute (e.g., CPLR 7502(a)). Only the
defendant may make this motion; if the plaintiff places venue in an
improper county, she forfeits the right to select a proper one." See
CPLR 510 (McKinney).

****"A change of venue requires a motion. That the change cannot be made
by the court sua sponte is an old rule, generally still followed."  (16
Siegel, N.Y. Prac. § 116 (5th ed.)).