Monday, February 2, 2015

Man Cites First-To-File Rule To Dismiss Default Divorce

In the case of Kemunto-Angwenyi v. Mghenyi, the Defendant appealed from a Family Court Order denying his post-judgment Motion to Dismiss a divorce action instituted by the Plaintiff, in order to allow his action for annulment to proceed in Kenya citing the first-to-file rule. Further, he appealed from the final judgment of divorce that was entered by default against him after he refused to appear at his divorce trial. The facts set forth in the record include that the parties were married in 2003 in Nairobi, Kenya and they are both Kenyan citizens. No children were born during their marriage. Before the couple got married the Defendant lived in the United States. After they got married the Plaintiff argues that they both moved to the United States where the Defendant was a student at Michigan State University. The parties continue to disagree as to whether or not they cohabited in the United States. The Defendant maintained that that Plaintiff never lived with him in the U.S. The Defendant contends that in 2004 the Plaintiff was living in New Jersey with her mother while he was working in Maryland. He claimed that he met with the Plaintiff once in New Jersey to discuss the dissolution of their marriage. In her certification, the Plaintiff stated that she and the Defendant lived in New Jersey together for four (4) years before separating in 2007. The Defendant filed for divorce in Kenya in 2011. In the same year, the Plaintiff filed for divorce in New Jersey. In his divorce papers, the Defendant claimed that the parties cohabitated until 2004 and they lived in Nairobi as husband and wife until that time when the Plaintiff refused to join him in America. Further, his claims differed in his certifications filed in New Jersey in which he stated that the marriage was never consummated and that it was procured by fraud so that the Plaintiff could obtain immigration status in the U.S. In his Motion to Dismiss the action in New Jersey, the Defendant invoked the first-to-file rule where he alleged that he filed his action in Kenya before the Plaintiff filed in New Jersey and therefore his action should control. The Family Court denied his Motion acknowledging the rule of comity that the court that first acquires jurisdiction over a matter has precedence, but also noted that the doctrine is not inflexible and may "yield to special equities." A trial was held in 2013, at which the Defendant failed to appear and a final divorce judgment was entered in default against him. According to the Appellate Court the first-to-file rule is a principle of comity that has been well-established in United States jurisprudence. Riggs v. Johnson Cnty., 73 U.S. (6 Wall) 166, 196, 18 L.Ed. 768, 776 (1868); Smith v. M'Iver, 22 U.S. (9 Wheat) 532, 535, 6 L.Ed. 152, 154 (1824); Exxon Research & Eng'g Co. v. Indus. Risk Insurers, 341 N.J. Super. 489, 503 (App. Div. 2001). "Comity, in a legal sense, is neither a matter of absolute obligation on the one hand nor a mere courtesy and good will upon the other." Fantony v. Fantony, 21 N.J. 525, 533 (1956). The court outlined that ultimately, "to obtain a dismissal or stay of a New Jersey case for comity reasons, the moving party bears the burden to establish two facts: 1) there is an earlier-filed action in another court; and (2) that prior action 'involve[s] substantially the same parties, the same claims, and the same legal issues.'" Am. Home Prods. Corp. v. Adriatic Ins. Co., 286 N.J. Super. 24, 37 (App. Div 1995). Applying these principles, the Appellate Court found no error in the Family Court's dismissal of the Defendant's Motion to Dismiss, specifically because the record reflected that Defendant failed to show that he satisfied his burden to prove that he actually filed his action first and in fact, the record showed that he filed his nullification action after the Plaintiff filed in New Jersey. If you anticipate that you may want to petition the court for a post-judgment modification of your final judgment of divorce it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about child support, post-judgment modification, divorce, uncontested divorce, or other family law matters in New Jersey visit This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

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