Mitchell v. Mitchell , 410 N.Y.S.2d 667 ( 1978 )

&emdash;In an action in which a judgment of divorce has been granted to the defendant, plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County, entered February 22, 1978, as declined to exercise jurisdiction with respect to his motion to modify the provisions of the judgment of divorce with respect to child custody. Order affirmed insofar as appealed from, without costs or disbursements. In view of all the circumstances, including the fact that (1) the infant issue of the marriage has been living with her paternal grandmother in New Jersey for the past four years pursuant to the judgment of divorce, (2) the plaintiff now resides in New Jersey, and (3) the defendant has already commenced an action in New Jersey seeking permanent custody and plaintiff and his mother have appeared in that action and have counterclaimed for the exact relief requested herein, it is our view that Special Term did not abuse its discretion in declining to entertain jurisdiction (Gise v Gise, 54 AD2d 684; Bruno v Borak, 52 AD2d 800; Anonymous v Anonymous, 62 Misc 2d 758; see, also, Domestic Relations Law, § 75-c, subd 5; §~ 75-d, 75-h). Hopkins, J. P., Suozzi, Rabin and Shapiro, JJ., concur.