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Maverick
Maverick, Lawyer
Category: Family Law
Satisfied Customers: 6422
Experience:  20 years of professional experience
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I need to know how to vacate/terminate New York (NY)

Customer Question

Hello, I need to know how to vacate/terminate New York (NY) Appellate Court proceedings. My former spouse has filed an Initial Brief in the New York Appellate Division, in response to a NY Family Court ruling that dismissed a custody petition due lack of jurisdiction over my minor children.My former wife had filed a NY Order of Protection (OP) for the sole purpose of circumventing our Florida Parenting Plan (FL divorce ruling), and gain sole custody of our children. None of the alleged allegations listed in my former spouse's OP ever occurred in the State of New York. None of us had ever lived in NY or had any significant connection to NY at the time of my former spouse filing the OP. The children were unlawfully removed to NY for about 3.5 months, before I could successfully enforce the FL Parenting Plan and have the FL court ordered them returned to FL. Fortunately, they never became NY residents (i.e., they never completed 6 months in NY). My former spouse continues to live in NY and has completed 6 months. Prior to abducting the children to NY she had never lived in NY.My former spouse has done the following:1. After the NY family court dismissed the child custody dockets (since the Florida court had enforced the Florida Parenting Plan), my former spouse had filed an appeal at New York Appellate Division, for return of the children to NY.2. Only AFTER filing the appeal at the New York Appellate Division, did by former spouse withdraw her OP at the NY family court.My questions are:1. How do I stop/terminate the appeal process in New York, since the New York Courts do not have jurisdiction over me or my children?2. Further, by filing an Answer Brief, am I subjecting myself to New York jurisdiction?Thanks.
Submitted: 1 month ago.
Category: Family Law
Expert:  Maverick replied 1 month ago.

Welcome to Just Answer! My name is***** give me a few minutes to review your inquiry. Thank you for your patience.

Expert:  Maverick replied 1 month ago.

1. This is a novel issue and tricky at best. Normally, one would file, in the trial court, what is known as a special appearance first in which he would argue that he is contesting the jurisdiction of the court to rule on the case and that all other papers filed THEREAFTER are being filed subject to the special appearance. BUT, it appears that in your case, this never happened.

2. Here are the NY rules of appellate procedure. I did not see any such rule allowing a special appearance per se; however, that is not to say that one could not draft an objection based on jurisdiction and file it as a special appearance and accomplish the same thing. MORE TO COME...

Expert:  Maverick replied 1 month ago.

3. One good option to consider is to wait and challenge jurisdiction when she goes to domesticate and enforce any NY court's decision against you in Florida. The U.S. Constitution requires that each state give “full faith and credit” to judgments of other states. Consistent with this mandate, the Florida Enforcement of Foreign Judgments Act provides a process for litigants to enforce out-of-state judgments in Florida. However, as Florida’s Court of Appeal held in Spano v. Wells Fargo Equipment Finance, a foreign judgment is not valid if the foreign court itself lacked jurisdiction over the defendant.

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Expert:  Maverick replied 1 month ago.

Here is a cite to the Spano case.