                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2019-18T3

ANGELA RUSSELLO,

          Plaintiff-Appellant,

v.

CARMELO RUSSELLO,

     Defendant-Respondent.
_________________________

                   Submitted March 3, 2020 – Decided May 8, 2020

                   Before Judges Accurso, Gilson and Rose.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Monmouth County,
                   Docket No. FM-13-1479-18.

                   Ross & Calandrillo, LLC, attorneys for appellant
                   (Elizabeth Calandrillo, of counsel and on the briefs).

                   Cadicina Law, LLC, attorneys for respondent (Joseph
                   Peter Cadicina, of counsel; Carly DiFrancisco, on the
                   brief).

PER CURIAM
      Plaintiff, Angela Russello, appeals from a November 30, 2018 order

dismissing without prejudice her complaint for divorce because defendant,

Carmelo Russello, had previously filed an action for separation in an Italian

court. The family court reasoned that under principles of comity, the New Jersey

action should be dismissed because the Italian action was filed first. There were,

however, disputed factual issues concerning the filing of the Italian action.

Moreover, following the dismissal of the New Jersey action, the Italian court

issued a final decision in the separation action, but it did not resolve any issues

related to equitable distribution. Consequently, we reverse the order dismissing

the action and remand for a plenary hearing.

                                        I.

      We discern the facts from the record developed on the motion to dismiss.

We also consider the final decision in the separation action issued by the Italian

court after the dismissal of the New Jersey action because we granted

defendant's motion to supplement the record to include that decision.          The

certifications submitted by the parties in support of and in opposition to the

motion to dismiss reflect that some facts are undisputed, but others are

contested.




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                                        2
      Both parties were born in Italy. In August 1975, they were married in

Gela, Italy. In May 1974, a year before the marriage, defendant became a citizen

of the United States of America. Shortly after their marriage, the parties moved

to the United States, where they lived together for the next forty years. Plaintiff

became a citizen of the United States of America in June 1980.

      The parties have three children, all of whom were born in the United States

and all of whom are now emancipated. When the parties initially moved to the

United States, they lived in New York State. In 2006, they moved to New Jersey

and purchased a home in Manalapan. Defendant contends that the house in

Manalapan belongs to him because the parties had divided the proceeds from

their prior home in New York State and the Manalapan house was purchased

with his share of those proceeds. Plaintiff disputes that position.

      In June 2015, the parties traveled together to Italy. While in Italy they

had a dispute and defendant returned to New Jersey, while plaintiff remained in

Italy. Plaintiff contends that defendant was verbally and physically abusive of

her and essentially left her stranded in Italy. Defendant, by contrast, asserts that

plaintiff abandoned their marriage and decided to remain in Italy while he

returned to New Jersey.




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                                         3
      In September 2016, an application for a "legal separation by mutual

consent" was filed in Italy. While the signatures of both parties appear on that

document, plaintiff contends that she was coerced into signing the application.

Nevertheless, because the parties could not agree on terms for their separation,

on September 18, 2017, the mutual consent application was dismissed as

"abandoned" by the Italian court. 1

      Shortly thereafter, on September 22, 2017, defendant filed an application

for non-consensual separation in Italy. That application sought a declaration

that the parties were separated and requested that the marital home be distributed

to defendant. The application did not address any support for plaintiff or any

distribution of assets to plaintiff.

      Defendant states that under Italian law married couples must first file for

separation and be judicially declared separated for a period before either party

can file for divorce. Defendant also states that following a judicial separation,

Italian law does not require the parties to proceed to file for divorce.

      In October 2017, plaintiff returned to the United States and began living

in New York with one of her sons. Plaintiff also retained an Italian lawyer and


1
   The parties have provided us with copies of the decisions and orders by the
Italian court together with translations. For purposes of this appeal, we accept
that the translations are accurate since neither party disputes the accuracy.
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                                         4
filed a series of applications to dismiss the non-consensual separation action,

contending that the Italian court lacked jurisdiction over the matter. Plaintiff's

filings included an alternative request for support, seeking essentially fifty

percent of all marital assets.

      In November 2017, the Italian court denied plaintiff's challenge and found

that it had jurisdiction because the parties were Italian citizens and had been

married in Italy. The court also noted that both parties were represented by

attorneys in the Italian court.        Plaintiff, however, continued to dispute

jurisdiction, and filed documents contending that both parties had lost their

Italian citizenship when they became citizens of the United States.

      Following a further hearing in October 2018, the Italian court found that

it still had jurisdiction because the parties had been married in Italy. The order

issued by the Italian court also stated that it would apply New Jersey law to the

parties' "[l]egal separation and marriage dissolution," except where New Jersey

law was silent, and then it would apply Italian law.

      In the meantime, in May 2018, plaintiff filed this action for divorce in the

Superior Court of New Jersey. Plaintiff's complaint alleged extreme cruelty as

the grounds for divorce.         She sought alimony and equitable distribution.

Defendant responded with a motion to dismiss, contending that the New Jersey


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                                          5
action should be stayed or dismissed because the Italian action had been the first

action filed.

      Without hearing oral argument or conducting a hearing, the family court

dismissed plaintiff's complaint without prejudice in an order entered on

November 30, 2018. The court set forth the reasons for its decision in its order.

While recognizing that the parties disputed numerous facts, the court reasoned

that the material facts relevant to the principle of comity were not in dispute. In

that regard, the court found that the Italian separation action had been filed in

September 2017, before plaintiff filed her action for divorce in New Jersey in

May 2018. The court also found that the two actions sought substantially similar

relief. Furthermore, the family court found that the Italian court could provide

plaintiff with adequate relief and if it did not, plaintiff could re -file her action

in New Jersey. Finally, the court reasoned that plaintiff had shown no special

equities for allowing the New Jersey action to proceed while the Italian action

was also proceeding.

      Plaintiff appealed from the order dismissing her complaint without

prejudice. On May 14, 2019, the Italian court issued a final ruling in the

separation action. Thereafter, we granted plaintiff's motion to supplement the

record on this appeal with that order. Among other things, the Italian court ruled


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                                         6
that (1) it could not combine the separation action with a divorce action because

they were "independent and separate" actions; (2) defendant was to pay plaintiff

$1400 per month for "support"; (3) it could not rule on defendant's request to

distribute the marital home located in Manalapan, New Jersey; and (4)

defendant's request for a division of "joint property" could not be "drawn up in

the [Italian] separation judgment."

                                       II.

      On appeal, plaintiff contends that the family court erred in: (1) failing to

appreciate that an action for separation in Italy is a separate action from an action

for divorce; (2) assuming that Italian law would provide substantially the same

relief as a New Jersey divorce action; (3) not conducting a plenary hearing to

resolve material fact disputes; and (4) acting arbitrarily and capriciously.

Having reviewed the record in light of the law, we reverse the order of dismissal

and remand for a plenary hearing.

      The dismissal of the New Jersey action was based on principles of comity.

New Jersey recognizes "the general rule that the court which first acquires

jurisdiction has precedence in the absence of special equities." Sensient Colors,

Inc. v. Allstate Ins. Co., 193 N.J. 373, 386 (2008) (quoting Yancoskie v. Del.

River Port Auth., 78 N.J. 321, 324 (1978)). "Under the first-filed rule, a New


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                                             7
Jersey state court ordinarily will stay or dismiss a civil action in deference to an

already pending, substantially similar lawsuit in another state, unless compelling

reasons dictate that it retain jurisdiction."       Ibid. (citing O'Loughlin v.

O'Loughlin, 6 N.J. 170, 179 (1951)).

      The doctrine of judicial comity is applicable to judicial proceedings in

foreign countries. Exxon Res. & Eng'g Co. v. Indus. Risk Ins'rs., 341 N.J. Super.

489, 503 (App. Div. 2001). Indeed, New Jersey has applied comity principles

to determine whether courts in New Jersey should defer to actions involving

divorce or child custody filed in a foreign country.        See, e.g., Fantony v.

Fantony, 21 N.J. 525, 533 (1956); Sajjad v. Cheema, 428 N.J. Super. 160, 179

(App. Div. 2012); Innes v. Carrascosa, 391 N.J. Super. 453, 490-93 (App. Div.

2007).

      The first-filed rule is not an absolute rule; rather, the inquiry is whether

the court in the second action should restrain itself and not exercise its judicial

power. Sensient Colors, 193 N.J. at 386-87. In other words, the second court

has jurisdiction and must determine whether exercising that jurisdiction would

interfere with the proceedings in the foreign jurisdiction and waste judicial

resources. Id. at 387. Accordingly, a court must determine whether "the foreign




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                                         8
court had jurisdiction of the subject matter" and whether "the foreign judgement

will not offend the public policy of [New Jersey]." Fantony, 21 N.J. at 533.

      To stay or dismiss a New Jersey action on the basis of comity, the moving

party must show that (1) there is an earlier-filed action; (2) the prior action

involves substantially the same parties, the same claims, and the same legal

issues as the second-filed action; and (3) the plaintiff in the second-filed action

will have the opportunity for adequate relief in the first action. Sensient Colors,

193 N.J. at 390-91 (citing Am. Home Prods. Corp. v. Adriatic Ins. Co., 286 N.J.

Super. 24, 37 (App. Div. 1995)).

      If the party seeking relief satisfies those prerequisites, then the burden

shifts to the other party, which must demonstrate special equities that weigh in

favor of retention of jurisdiction by the court in the second-filed action. Ibid.

Special equities can exist under a variety of circumstances, including (1) when

one party has engaged in forum shopping to deny the other party the benefit of

its natural forum; (2) when a party has, in bad-faith, first-filed in anticipation of

an immediate suit in another forum; (3) when the second action implicates

significant state interests so that deference to another forum "would contravene

the public or judicial policy"; and (4) when proceeding with the first-filed action




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                                         9
would cause great hardship or inconvenience to one party, and no unfairness

would result to the opposing party. Id. at 387-89.

      The decision to grant a comity dismissal or stay is within the discretion of

the trial court.   In exercising that discretion, however, the court needs to

determine if there are disputes of material fact and if those disputes need to be

resolved at an evidentiary hearing.        See Sajjad, 428 N.J. Super. at 183.

Moreover, if the trial court makes its ruling on a motion to dismiss, or by

considering materials outside the pleading that convert it into a motion for

summary judgement, then we conduct a de novo review using the same standard

as the trial court. See Am. Humanist Ass'n v. Matawan-Aberdeen Reg'l Sch.

Dist., 440 N.J. Super. 582, 588-89 (App. Div. 2015); R. 4:46-2(c).

      Accordingly, we must determine whether the competent evidence

submitted by the parties demonstrates that there are genuine issues of material

fact, and if not, whether the moving party is entitled to summary judgement as

a matter of law. We review legal issues de novo and we apply the same standard

when reviewing established facts applied to a question of law. Henry v. N.J.

Dep't of Human Servs., 204 N.J. 320, 330 (2010) (quoting Manalapan Realty,

L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995)).




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                                      10
      Applying these standards to the record before us, we conclude that there

are disputed facts that need to be resolved at a plenary hearing. First, and

foremost, among those disputes is the trial court's determination of whether the

Italian separation action involves substantially the same claims as the action

filed in New Jersey and whether plaintiff will have the opportunity for adequate

relief in the Italian separation action. These disputes go to the second and third

prongs of the Sensient Colors test.

      The record establishes that the Italian separation action was filed before

the New Jersey divorce action. We clarify, however, that the only relevant

action was the non-consensual separation action filed by defendant in September

2017. The first action was dismissed as abandoned and therefore that first action

was not pending when the divorce action was filed, nor did that action establish

any judicial ruling.

      The current record does not establish that the Italian separation action

involves the same legal issues as a divorce action in New Jersey. Moreover, the

Italian separation action expressly did not grant plaintiff any equitable

distribution relief. The Italian law cited by the parties suggests that a separation

action is a separate and distinct proceeding from a divorce action. Indeed,

defendant conceded that point and noted that the parties must first be granted a


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                                        11
judicial separation and wait for a period of time before he can file a separate

divorce action. That point of law was clarified by the Italian court itself. In

issuing its final order in the separation action, the Italian court noted that the

question of equitable distribution needed to be handled in a "separate" and

"independent" action.

      At the plenary hearing, the family court needs to determine whether a

separate action for divorce has or has not been filed in Italy. In that regard, the

family court needs to determine what was the scope of relief granted in the

separation action, whether that separation action is now completed, if defendant

has filed a divorce action, and if so, when that divorce action was filed. If the

Italian separation action is now over and no divorce action has been filed, or if

the divorce action in Italy was filed after May 2018, then plaintiff would be

entitled to proceed to address equitable distribution issues in New Jersey. Under

those circumstances, the court will also need to make a fact finding as to whether

the award of support in the amount of $1400 per month by the Italian court was

meant as a final and permanent award or an interim award that could be adjusted

in the divorce proceedings.

      The family court also needs to resolve disputed issues that go to the special

equities of whether it should retain jurisdiction. In their certifications, plaintiff


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                                        12
and defendant dispute the circumstances of their separation in Italy and why a

separation action was filed in Italy. Those questions go to whether defendant

engaged in jurisdictional shopping to prevent plaintiff from seeking a divorce in

New Jersey.

      In addition, the family court needs to determine the factual issues

concerning the benefits and burdens of proceeding in New Jersey versus Italy.

If the Italian court has not made any determinations on equitable distribution,

one of the special equity considerations is hardship or inconvenience to plaintiff

to proceed in Italy and whether there would be any unfairness to defendant to

address the issues in New Jersey. Here again, the parties dispute the facts

concerning that consideration. Defendant suggests that plaintiff may only be

residing in the United States temporarily and may return to Italy. If the court

found that both parties are now back in the United States, that would be a

significant equitable consideration given that it is undisputed that all the assets

to be distributed are in the United States.

      In short, we reverse the order dismissing plaintiff's complaint for divorce

and remand with instructions that the family court conduct a plenary hearing.

The court can use its discretion in determining what, if any, discovery needs to

be afforded to the parties before the hearing. The court will also have discretion


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                                       13
to appropriately define and limit the issues to be addressed at the plenar y

hearing, with a focus on the principles of comity and the factors and special

equities identified in Sensient Colors.

      Reversed and remanded for a plenary hearing.        We do not retain

jurisdiction.




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