Justice Harold B. Beeler

NEW YORK COUNTY
Supreme Court

 Plaintiff-husband moves by Order to Show Cause pursuant to CPLR 3217(b) to discontinue an action for divorce. Defendant-wife does not oppose the discontinuance of plaintiff's cause of action for constructive abandonment, provided that the Court retains jurisdiction over the ancillary relief requested in her answer including spousal maintenance, child support and custody of the children.

BACKGROUND

The parties were married on June 4, 1998 and have three young sons, ages 7, 5, and 3. Plaintiff, in partnership with his father and brother, owns a securities trading firm. His income in 2004 was almost $5 million and his net worth is stated at over $17 million. Defendant is a stay-at-home mother. The parties separated in November 2005. On June 14, 2006, plaintiff commenced this action for divorce by filing a Summons with Notice. On June 21, 2006, defendant's counsel served a Notice of Appearance and Demand for a complaint. A verified complaint was filed on July 11, 2006 alleging as grounds constructive abandonment by the defendant. In her verified answer, dated September 11, 2006, defendant denied the material allegations of the complaint and affirmatively sought the ancillary relief of custody of the children with access by the plaintiff, spousal maintenance and child support. She did not, however, specifically interpose a counterclaim for divorce.

During the pendency of this action, defendant has made no motion for pendente lite financial relief in any form. Plaintiff has voluntarily given defendant $100,000 in legal fees, $20,000 in expert fees and $50,000 monthly in combined spousal and child support, although defendant has recently complained that plaintiff has unilaterally cut back on his support payments and not paid her counsel's and expert's current fees. A preliminary conference was held on July 11, 2006, at which time all issues including fault were marked unresolved by the parties. At this conference and, thereafter, until the filing of the instant motion, the Court's focus in this action has been almost exclusively centered on issues concerning custody and access of the children.

On July 12, 2006, the Court ordered a summer access schedule which differed from the schedule for the non-summer months which the parties had previously voluntarily agreed upon. The summer schedule expanded plaintiff's weekend access to the children after taking into account that plaintiff would lose his weekday time with them because they would be spending their whole summer, as was their custom, in the parties' East Hampton home.

At the September 11, 2006 compliance conference, the parties disagreed over the access schedule for the coming school year. Plaintiff argued for an access schedule that expanded on the schedule that had been in effect during the past school year. His proposed schedule would increase his access to the children from five out of every fourteen days to equal time with them. Defendant objected to any such increase arguing that the constant transitions were not in the best interest of the children. The parties also disagreed over whether the children should continue in the therapy that all three entered to help them adjust to their parents's separation. After extensive consultation with and guidance from the Court, the parties entered into a so-ordered stipulation whereby they agreed that for non-holiday periods the access schedule from the past school year would continue for the coming school year. They also agreed on an access schedule for holidays and vacations through January 15, 2007, the next scheduled appearance date for the case.

The parties also stipulated that their eldest son would continue in therapy, while the younger boys would discontinue the therapy pending further order of the Court or agreement of the parties and that the children's therapist would contact the Court concerning the advisability of continued treatment for the children. The parties further agreed to the appointment of a guardian ad litem for the three children in view of the high level of tension and conflict over the issues of access and therapy for the children.

At the same compliance conference, defendant reiterated her refusal to consent to grounds for the divorce. Her attorney claimed that defendant lacked sufficient discovery with respect to the value of plaintiff's business to determine whether a divorce was in her best interest and, moreover, that plaintiff's cause of action for constructive abandonment was not genuine inasmuch as plaintiff himself had abandoned the family to have an affair with another woman. In light of the absence of agreement over grounds, the Court scheduled a fault trial for January 15, 2007 and stayed further discovery until completion thereof.

Sometime in mid-November 2006, defendant served a fault trial subpoena on ____, the woman with whom plaintiff was allegedly having an affair, who had been a close friend of defendant's during this marriage and who is going though her own divorce. On November 20, 2006, plaintiff's counsel wrote to defendant's counsel requesting that he stipulate to a discontinuance of plaintiff's action for divorce to avoid "incurring the unnecessary expense and subjecting the parties' children to the inevitable rancor that would be the result of a fault trial." In response, on November 22, 2006, defendant's counsel refused to stipulate to the discontinuance, insisting that plaintiff was "withdrawing the complaint not because of any concern for the children, but because it is a pack of lies that no fact finder would buy."

Thereafter, on December 8, 2006, defendant filed a motion by Order to Show Cause to direct plaintiff to cease having the parties' three children spend time with K. C. and her children while the boys are with the plaintiff pursuant to the access schedule. Six days later, on December 14, 2006, plaintiff filed the instant Order to Show Cause for a discontinuance of the divorce action. Both motions were returnable on January 12, 2007, on which date the Court granted defendant's "anti-blending" motion and reserved judgment on plaintiff's discontinuance application.

DISCONTINUANCE PURSUANT TO CPLR 3217(B)

After issue has been joined and in the absence of an agreed-upon stipulation to discontinue, CPLR 3217(b) requires a plaintiff to obtain the permission of the court to discontinue an action, upon terms and conditions that the court deems proper. While the decision to grant a discontinuance is within the sound discretion of the court, discontinuance is normally allowed unless undue prejudice to the defendant would result therefrom. See Tucker v. Tucker, 55 N.Y.2d 378, 383 (1982). A court should grant a discontinuance unless special circumstances exist which outweigh a party's right to not be compelled to continue a litigation which it had voluntarily commenced. Hockmeyer v. Bloch, 159 A.D.2d 444 (1st Dep't 1990) ("a party cannot be compelled to litigate, absent special circumstances"); Zuckerman v. Zuckerman, 105 A.D.2d 782 (2nd Dep't 1984) ("in the absence of special circumstances, a party should not be compelled to litigate against his or her wishes").

Plaintiff's Position

Not surprisingly, the parties disagree over whether a discontinuance would result in substantial unfairness to the defendant. Plaintiff contends that the action is barely six months old, that no pendente lite financial relief has been requested or ordered and, in any event, in light of plaintiff's decision to withdraw his divorce cause of action and in the absence of a pending counterclaim no legal basis exists for the Court's continuing jurisdiction. If need be, according to plaintiff, defendant can resort to Family Court to obtain the same relief she is seeking here, namely maintenance, custody and child support.

Defendant's Position

In contrast, defendant argues that she would suffer significant financial penalties in the event she had to initiate her own action in Family Court, including the inability to obtain retroactive maintenance and child support and to recover legal and expert fees already expended in this action. More importantly, she points to the instability and disruption in the lives of the children in the event she is relegated to Family Court with its attendant delay and where a new guardian ad litem would have to be appointed. Moreover, she asserts that the absence of a counterclaim for divorce does not bar the Court from addressing her claims for support and custody that she affirmatively sought in her answer because the Court retains independent jurisdiction over these issues regardless of whether a cause of action for divorce is denied after trial or discontinued on application of the plaintiff. Finally, defendant's opposition to the motion is supported by the guardian ad litem who represents that she has already conducted an extensive investigation of the custodial and visitation issues and believes that these matters should remain before and be decided by this Court.

Discussion

At the outset, the Court rejects plaintiff's contention that defendant's failure to assert a counterclaim for divorce in and of itself defeats her opposition to the motion to discontinue. See Schneider v. Schneider, 32 A.D.2d 630 (1st Dep't 1969) (Motion to discontinue denied despite the failure to plead a counterclaim where discontinuance would result in defendant's loss of support previously awarded by the court). In a typical civil action, the right to withdraw a claim is virtually unlimited since only the interests of the plaintiff are ordinarily affected by a discontinuance. However, in a matrimonial case, where a defendant frequently seeks affirmative relief in the answer in the form of support, custody or otherwise, a discontinuance can unduly prejudice these rights, notwithstanding the absence of a counterclaim for divorce. As articulated in Palmer v. Palmer, 62 Misc.2d 73, 77-78 (Fam Ct, Duchess County 1969) in the related context of a child custody litigation:

[T]he right to discontinue ceases to be absolute when certain intervening interests and rights become involved in the action or proceeding. It has long been the rule that when, as here, the party against whom relief is sought himself seeks affirmative relief by way or counterclaim or otherwise, the court should not permit the party who instituted the action in the first instance to unilaterally discontinue the action. (Emphasis added).

Moreover, the importance of resolving ancillary issues in a matrimonial action is recognized by the line of cases which hold that a court retains jurisdiction over such issues even where a cause of action for divorce has not been made out. See e.g. Gunn v. Gunn, 143 A.D.2d 393 (2d Dep't 1988) (Court could properly determine issues of custody, child support, maintenance and attorneys' fees even though no judgment entered dissolving the marriage); Mauletta v. Mauletta, 90 A.D.2d 535 (2d Dep't 1982) (Although grounds for divorce were not established, the court could determine questions of child support, exclusive possession of the marital residence and maintenance); Forbush v. Forbush, 115 A.D.2d 335 (4th Dep't 1985) (Court has authority to order permanent maintenance notwithstanding failure of proof on issue of fault).

CONCLUSIONS OF LAW

The Court finds that plaintiff has seriously underestimated the consequences which would arise in the event of a discontinuance. While defendant's claim of financial prejudice can largely be resolved by conditioning any order for discontinuance on payment by plaintiff of any unpaid attorney or expert fees (see e.g. Mancinelli v. Mancinelli, 228 A.D.2d 747 (3d Dep't 1996) (Abuse of discretion to allow discontinuance without awarding defendant counsel fees)), the impact on the parties' children of a withdrawal of the entire action is not so easily remedied. In this regard, courts have been especially vigilant in ensuring that the best interest of the children are not undermined by the granting of a discontinuance. See e.g. People ex rel. Weissman v. Weissman, 50 A.D.2d 989, 990 (3d Dep't 1975) ("This [habeas corpus] proceeding involves more than the personal rights of the parties. It involves the custody of the child. The welfare of the child is the prime concern of the court and justified the court in denying appellant's application to discontinue"); Julie J. v. Edwin A., 86 Misc.2d 882, 883 (Fam Ct, New York County 1976) ("The welfare of the infant child [which] is of paramount concern" warranted denial of motion to withdraw paternity proceeding); Stien v. Stien, 130 Misc.2d 609 (Fam Ct, Westchester County 1985) (Discontinuance of custody petition in Family Court in favor of a new matrimonial action in Supreme Court denied as it would result in the loss of the child's law guardian and prejudice the early disposition of the custody question).

The welfare of the three boys would likewise be compromised by a discontinuance of the instant action. Within the space of only six months, this Court has been called upon on three separate occasions to address matters concerning the welfare of these children. The current summer, school year and holiday access schedules were agreed to by the parties only after this Court expended considerable time and effort mediating their conflicting concerns. It is not overly pessimistic to predict that these temporary schedules will likely be subject to attack by one party or the other in light of their basic disagreements over the amount of access time and the impact of transitions on the children.

The advisability of the children continuing in therapy also remains an open issue as does the "blending" of the parties' children and the children of K. C. if, as is not unlikely, plaintiff and K. C. continue their relationship. Most importantly, a discontinuance of the entire action will result in the loss of ____________, the guardian ad litem, who has earned the respect of both parties by her commitment to the welfare of their children and by her diligence in representing their interests before this Court.

While the Court recognizes it cannot compel plaintiff to go forward with his cause of action for divorce, CPLR 3217(b) authorizes a court to order a discontinuance "upon terms and conditions, as the court deems proper." Accordingly, the Court is conditioning discontinuance of plaintiff's cause of action upon the Court's retention of jurisdiction over the issue of custody, and in the interest of judicial economy, all other requests for relief asserted in defendant's answer.

This constitutes the decision and order of the Court.