The Second Department reversed the Order of the Suffolk County Supreme Court which denied the defendant’s motion for change of venue of the divorce action from Suffolk County to New York County. Suffolk County was not a proper venue based on the parties’ residence.
The defendant clearly established that the parties primarily resided in New York County. The defendant submitted, among other things, copies of: the parties’ income tax returns, listing their address in New York County as their residence and reflecting their payment of New York City income taxes; the defendant’s voter registration showing that she was registered to vote in New York County; the defendant’s driver license listing her address in New York County; motor vehicle records showing that the parties’ cars were all registered in New York City or were in the process of having the registration transferred from New Jersey to New York City; an email from the plaintiff to the parties’ art insurance carrier stating that the parties did not have any intention of adding any art to the Southampton house; and bank statements listing the Beresford apartment and the plaintiff’s Manhattan office as the parties’ addresses.
It was undisputed that, prior to 2020, the parties only stayed in the Southampton house on weekends in the summer, with limited exceptions, and the Court held that the time the defendant spent in the Southampton house in 2020 during the COVID-19 pandemic was not enough to make her a resident of Suffolk County.
The Support Magistrate properly granted the mother’s motion to dismiss the father’s amended petition to modify child support for failure to state a cause of action. Pursuant to the parties’ judgment of divorce, the father was directed to pay maintenance in the amount of $2,000 per month commencing December 1, 2016, until December 1, 2020, and child support in the amount of $3,250 per month, until the cessation of the father’s maintenance obligation, at which time the father’s child support obligation would increase to $4,157 monthly.
The emancipation of the parties’ eldest child by reason of having attained the age of 21 was not a substantial change in circumstances, since the by the terms of the parties’ stipulation, the automatic increase in the father’s child support obligation from $3,250 per month to $4,157 per month in December 2020 was to occur subsequent to when the eldest child turned 21 years old in September 2020.