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Monday, February 27, 2012

Important New Decisions - February 26, 2012

Supreme Court Holds Once a Party Has Stated under Oath That the Marriage Has Been Irretrievably Broken for a Period of at Least Six Months, the Cause of Action for Divorce Has Been Established as a Matter of Law and There Is No Defense

In Townes v Coker, --- N.Y.S.2d ----, 2012 WL 444054 (N.Y.Sup.) the parties were married on June 12, 1981 and had three emancipated children. On October 6, 2008, Wife commenced an action for divorce against Husband. In her verified reply the Wife consented to the entry of the Judgement of Divorce based on Husband's counterclaim for constructive abandonment. On March 23, 2009, the parties executed a Stipulation, "So-Ordered" by Hon. Anthony J. Falanga, wherein Wife agreed to discontinue the 2008 action so that Husband may commence his own action on the grounds of constructive abandonment. Pursuant to the terms of the March 23, 2009 Stipulation, on or about April 8, 2009, the Husband commenced an action for divorce based upon the grounds of constructive abandonment. (Action No. 1). The Wife served a Verified Answer consenting to a divorce on the grounds of constructive abandonment. On or about March 21, 2011 the Husband made a motion seeking to discontinue Action No. 1. The Court denied Husband's motion. On or about February 15, 2011 the Wife commenced Action No. 2 and moved to consolidate Action No. 1 and Action No. 2 pursuant to CPLR 602 which the Court granted. The wife then moved Summary Judgment with respect to her cause of action alleged in Action No. 2, based upon the irretrievable breakdown of the marriage between the parties for at least six (6) months. The Wife's cause of action in Action No 2 was predicated upon the "no-fault" ground for divorce established in DRL 170(7), the irretrievable breakdown of the relationship of the parties. The Wife's Verified Complaint (Action No. 2) stated in relevant part: 11. The grounds for divorce are as follows: Irretrievable Breakdown of the Relationship (DRL Sec. 170(7)): The relationship between the Plaintiff and Defendant has been broken down irretrievably for a period of at least six (6) months. In opposition to Wife's application for summary judgment as to grounds, the Husband categorically denied his Wife's claims that the marriage had broken down irretrievably. The Supreme Court found that the Legislature did not enact a defense to this cause of action and courts cannot employ statutory construction to enact an intent that the Legislature did not express. Thus, neither the Husband, nor the Court, may create a defense where it is clear that the Legislature intentionally declined to do so. See, Pajak v. Pajak, 56 N.Y.2d 394, 452 N.Y.S.2d 381 (1982). Since the Wife stated "under oath" that the marriage is irretrievably broken, there was no basis for directing a trial with regard to this action of action for divorce. DRL 170(7) states that a divorce may be granted where: (7) The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. Thus, once a party has stated under oath that the marriage has been irretrievably broken for a period of at least six months, the cause of action for divorce has been established as a matter of law. The Court declined to follow the holding in Strack v.. Strack, 31 Misc.3d 258, 916 N.Y.S.2d 759 (Sup.Ct., Essex Cty., 2011), which held that a husband has the right to a trial on the "no fault" ground asserted by Wife. Also, see Schiffer v. Schiffer, 33 Misc.3d 795 (Sup.Ct. Dutchess Co., 2011). Supreme Court held that pursuant to DRL §170(7), once either party states under oath that the marriage has been irretrievably broken for at least six months, the grounds are no longer at issue and there is no right to a trial, by jury or otherwise. The entire purpose of the statute was to permit the Court to grant a divorce without requiring a trial. It noted that in AC v. DR, 32 Misc.3d 293, 305, 927 N.Y.S.2d 496 (Sup.Ct. Nassau Co., 2011), Justice Falanga stated the plaintiff's self-serving declaration about his or her state of mind is all that is required for the dissolution of a marriage on grounds that it is irretrievably broken. In the court's view, the Legislature did not intend nor is there a defense to DRL 170(7). Notwithstanding the foregoing and assuming arguendo, that the Husband was entitled to a defense regarding DRL 170(7), here the Husband's general denial of Wife's allegations that the marriage was broken down irretrievably was belied by his sworn statement in his Verified Complaint (Action No. 1) in which he stated: Continuing for a period of more than one (1) year immediately prior to the commencement of this action, defendant has continuously refused to have sexual relations with the plaintiff despite plaintiff's repeated requests to resume such relations. Based upon the Husband's sworn admission that his Wife has refused to have sexual relations with him for at least one (1) year despite his repeated request for same, it was difficult for this Court to imagine a better example of a irretrievable breakdown of the marriage relationship where one spouse continually refuses to have sexual relations with the other spouse for a period of at least one year. Here, the Husband was bound by his own sworn admission contained in his Verified Complaint, thereby eliminating any triable issues of fact for the Court to determine.

UCCJEA Requires Court to Communicate with Sister State Court Where Custody Actions Commenced in Two States

In Guzman v Guzman, --- N.Y.S.2d ----, 2012 WL 401081 (N.Y.A.D. 2 Dept.) in November 2009, the mother commenced a proceeding, seeking to modify thecustody and visitation provisions of a 2008 Florida judgment of divorce, entered upon the parties' stipulation, which awarded the father primary residential custody of the child. Before any determination could be made in this proceeding, the father relocated with the child to Florida. Thereafter, on December 22, 2009, the Family Court issued a determination, in effect, dismissing the petition for lack of jurisdiction, and it advised the mother to seek relief in Florida. However, when the mother subsequently commenced a custody proceeding with respect to the child in Florida, the Florida court determined that Florida was an inconvenient forum and that New York was the more appropriate forum, and it stayed the custody proceeding commenced in the Florida court. The mother then moved in the Family Court, Queens County, to vacate the Family Court's determination dated December 22, 2009. Without consulting with the Florida court, the Family Court denied the motion in an order dated March 2, 2011. The Appellate Division held that under the circumstances of this case, the order dated March 2, 2011, had to be reversed, that branch of the mother's motion to vacate the determination dated December 22, 2009, granted, the petition reinstated, and the matter remitted to the Family Court, for further proceedings. At the time the mother commenced this modification proceeding in November 2009 the Family Court, Queens County, had jurisdiction over it pursuant to Domestic Relations Law §76-b, based on the fact that the parties and the child lived in New York, and none of them had resided in Florida for over a year. The child was enrolled in school in New York, her sister had resided in New York with the mother since 2007, the father had commenced a proceeding in New York to modify the custody provisions of the Florida judgment of divorce with respect to the sister, and the Family Court, Queens County, had obtained a forensic study of the parties for use in that proceeding. Therefore, the parties and the subject child had significant connections with this State, and it appeared that "substantial evidence [was] available in this state concerning the child's care, protection, training, and personal relationships" (Domestic Relations Law § 76[1][b][ii] ). Accordingly, New York had jurisdiction to modify the custody and visitation provisions of the parties' Florida judgment of divorce with respect to the subject child. Nonetheless, where custody proceedings relating to a child are pending in different states-in this case, New York and Florida-Domestic Relations Law § 76-e applies, and the courts of the two states must confer with each other. Since the Family Court made its initial determination, in effect, dismissing the petition in this proceeding, the father and the child apparently had resided in Florida. In view of these circumstances, upon remittal, the Family Court, Queens County, was directed to contact the Florida court so that the courts of the two states may confer with each other and determine which state was the more appropriate forum for the proceeding at this juncture.


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