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1996 National Legal Research Group, Inc.

NEW YORK: Zwerling v. Zwerling, ___ Misc. 2d ___, 636 N.Y.S.2d 595 (1995).

The wife in Israel was not properly served in accordance with the Hague Convention so as to confer personal jurisdiction over her for the purpose of equitable distribution in New York.

This case addresses the subject of jurisdiction and service of process on a spouse living outside the United States in a nation that has signed the Hague Convention.

The husband and wife were married in New York in 1981, but the parties went to Israel and purchased an apartment there in 1987. The wife remained in Israel, but the husband returned to New York that same year. Later, the husband obtained a default judgment awarding him a divorce and ordering the parties to sell the apartment in Israel and split the proceeds. The wife moved to vacate the portion of the decree regarding equitable distribution, claiming that she had never been served with the summons and complaint and that she was willing to submit to the court only for the purpose of the divorce and to have a new hearing on equitable distribution.

The court held that personal jurisdiction over the wife was lacking in the divorce action for the purpose of granting equitable distribution because she had not been properly served with process. A court may not enter a judgment adjudicating the economic rights of spouses without acquiring personal jurisdiction over them, and personal jurisdiction is lacking if service has not been properly effected, the court noted. The manner of service was insufficient here to confer the personal jurisdiction needed to have the power to adjudicate economic issues, the court decided.

The court observed that the wife was served pursuant to a New York statute which requires service outside the State of New York to be made in the same manner as service within the state. But an exception to this statute, the court said, is the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 20 U.S.T. 361, T.I.A.S. No. 6638 (1969). Under the supremacy clause of the United States Constitution, this treaty supersedes state statutes, the court said.

The Hague Convention requires service upon parties in a signatory nation to be made through a central authority designated by the signatory nation, the court continued. The court noted that the treaty contains only one exception applicable to this case:

Provided the State of designation does not object, the present Convention shall not interfere with

(a) the freedom to send judicial documents, by postal channels, directly to persons abroad;

(b) the freedom of judicial officers, officials, or other competent persons of the State of origin to effect service of judicial officers, officials, or other competent persons of the State of designation;

(c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials, or other competent persons of the State of designation.

Hague Convention Art. 10, quoted in Zwerling v. Zwerling, supra, 636 N.Y.S.2d at 598.

According to the court, Israel objected to paragraphs (b) and (c) and signed the treaty with the reservation that it would effect the service of judicial documents "only through the Directorate of the Courts, and only where an application for such service emanates from a judicial authority or from the diplomatic or consular representation of a Contracting State." Zwerling v. Zwerling, supra, 636 N.Y.S.2d at 599.

The husband did not accomplish service of process in accordance with the treaty, the court found. The husband sent the summons and complaint to an individual to personally serve the wife, rather than making service through the Directorate of the Courts, as required by Israel in the treaty. The court rejected the husband's argument that service of process can be accomplished simply by sending the documents through postal channels under Article 10(a) of the treaty. Since Article 10(a) uses the word "send" rather than the term "service of process," it does not encompass "service of process" and a person cannot be served merely by mailing her or him the documents, the court decided, after reviewing conflicting authority on the issue.

Having concluded that the court which granted equitable distribution lacked jurisdiction to do so, the court vacated that portion of the default judgment. It refused the wife's request for a new hearing on equitable distribution, however. Jurisdiction over that issue should be declined since that issue was presented in matrimonial proceedings pending in Israel, the court decided.

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