Vernon v. Vernon

210 A.D.2d 170, 620 N.Y.S.2d 362

Opinion

—Order, Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered July 20, 1994, which denied, inter alia, defendant’s motion for renewal of the court’s previous order of February 17, 1994, and, inter alia, refused defendant’s request that it decline to exercise jurisdiction over this child custody dispute, unanimously affirmed, without costs.

The parties herein agree that the Supreme Court was empowered to address the issue of forum non conveniens. on the original motion. Since the court did not discuss the issue of forum non conveniens in its decision on the first motion and then, in effect, invited defendant to move for reconsideration, we have considered the issue on its merits. Defendant has failed to demonstrate that the court was unwarranted in retaining jurisdiction of this custody dispute under either Domestic Relations Law article 5-A or 28 USC § 1738A so as to avoid enforcement of the forum selection clause in the parties’ settlement agreement, incorporated into the judgment of divorce.

The parties expressly agreed that New York would continue to have personal jurisdiction over them for all purposes, including custody issues, a clause that was accepted by defendant with full knowledge that she would be residing with the child in another State. Moreover, her Wyoming action was commenced some four months after the New York proceeding, rendering Domestic Relations Law § 75-g inapplicable to the present matter. Similarly, defendant has not established that Wyoming is a more appropriate forum than New York for hearing the instant matter (see, Domestic Relations Law § 75-h).

We have reviewed defendant’s remaining arguments and find them to be without merit. Concur—Sullivan, J. P., Wallach, Kupferman and Ross, JJ.