New York Matrimonial Trial Handbook
The New York Matrimonial Trial Handbook by Joel R. Brandes is available online in the print edition at the Bookbaby Bookstore and other bookstores. It is now available in Kindle ebook editions and epub ebook editions in our website bookstore. It is also available at Amazon Kindle, Barnes & Noble and Goodreads.
The New York Matrimonial Trial Handbook was written for both the attorney who has never tried a matrimonial action and for the experienced litigator. It is a “how to” book for lawyers. This 836 page handbook focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a matrimonial action. It is intended to be an aid for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. The handbook deals extensively with the testimonial and documentary evidence necessary to meet the burden of proof. There are thousands of suggested questions for the examination of witnesses at trial to establish each cause of action and requests for ancillary relief, as well as for the cross-examination of difficult witnesses. Table of Contents
Tuesday, November 27, 2012
Vujicevic v Vujicevic, 2012 WL 5896766 (S.D.N.Y.) [Croatia] [Federal & State Judicial Remedies] [Service of Process]
In Vujicevic v Vujicevic, 2012 WL 5896766 (S.D.N.Y.) petitioner filed a Verified Petition for the Return of the Child to Croatia on September 21, 2012. On October 9,
2012, petitioner filed a Petition for Warrant in Lieu of Writ of Habeas Corpus. Six days later, on October 15, 2012, the Court filed a Memorandum declining to grant the Petition for Warrant due to lack of personal jurisdiction, without prejudice to reconsideration if petitioner later established jurisdiction. Vujicevic v. Vujicevic, No. 12 Civ. 7149, 2012 WL 4948640 (S.D.N.Y. Oct. 15, 2012). In its Memorandum, the Court noted that it could exercise personal jurisdiction over respondent only if respondent had been served. The Court also observed that service was specifically required by the International Child Abduction Remedies Act, 42 U.S.C.11601-11610 (2006) (citing 28 U.S.C. s 1738A(e) (2006); 42 U.S.C. § 11603(c); N.Y. Dom. Rel. Law § 76-d (McKinney 2012)). Because the docket sheet indicated that respondent had not yet been served, the Court concluded that it did not have personal jurisdiction over respondent.
On October 16, 2012 petitioner filed a Motion for an Order to the United States Marshal to Serve Respondent. In that Motion, petitioner noted that under ICARA,
service must be effected pursuant to New York law, specifically section 308 of the
C.P.L.R. (citing Vujicevic v. Vujicevic, 2012 WL 4948640; Ebanks v. Ebanks, No. 07-CV-314, 2007 WL 2591196, at *3 (S.D.N.Y. Sept. 6, 2007)). Petitioner argued that service under subsections (1), (2), or (4) of section 308 was impracticable because petitioner was unaware of respondent's exact whereabouts or her "actual place of business, dwelling place or usual place of abode.".Petitioner contended, however, that respondent was likely present in New York State and that service under subsection 308(5) was appropriate. C.P.L.R. §308 provides, in part:"Personal service upon a natural person shall be made by any of the following methods: ... 5. in such manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs one, two and four of this section.". Noting that the Court had authority to order the U.S. Marshal to effect service and that the Department of State had information that might aid the Marshal in locating respondent, petitioner moved for an Order to Show Cause, to prohibit the removal of the child from this jurisdiction, and to direct the U.S. Marshal to serve respondent and to seize all passports and travel documents for respondent and the child.
On October 22, 2012, the Court issued an Order to Show Cause, directing, that the U.S. Marshal "(I) serve Respondent with a copy of th [e] Order, as well as the Verified Petition (and all attachments), and (ii) seize all passports and travel documents for the Respondent Adriana Vujicevic and the Child, ."Vujicevic v. Vujicevic, No. 12 Civ. 7149 (S.D.N.Y. Oct. 22, 2012). Since the Order to Show Cause was issued, the U.S. Marshal diligently attempted to serve respondent. The Marshal was not been able to serve respondent within New York State.
The Court noted that under Rule 4(m) of the Federal Rules of Civil Procedure, a petitioner has 120 days from the date on which his Verified Petition was filed to achieve service. Although New York law governs the method by which the Hague Convention petitioner was required to effect service, Federal Rule of Civil Procedure 4(m) governs the deadline for service. If a petitioner fails to serve a respondent within 120 days, "the court-on motion or on its own after notice to the [petitioner]-must dismiss the action without prejudice against that [respondent] or order that service be made within a specified time."Fed.R.Civ.P. 4(m). The Court directed that unless petitioner effected service or could show good cause why his time to serve should be extended, the matter would be dismissed without prejudice on January 22, 2013.