Decisions of Interest

Move to Connecticut Did Not Terminate NY Domicile

Though a couple moved to Connecticut for educational reasons, their domicile remained in New York and a divorce action brought in New York therefore need not be dismissed for lack of jurisdiction. P.C. v. K.K., 53782/10, NYLJ 1202479408573, at *1 (Fam. Ct., Kings Cty. 1/7/11) (Thomas, J.).

The wife moved for dismissal of her husband's divorce action, claiming that they did not meet the jurisdictional requirements of Domestic Relations Law ' 230. Under DRL
' 230 (1), an action for divorce may be maintained only when “[t]he parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding.” The wife based her argument on the fact that she and her husband had been living in Connecticut together less than a year prior to the filing of the divorce. (There was no dispute concerning the facts that the parties were married in New York and the wife was a resident of New York at the time of filing.) The court found New York jurisdiction proper because the couple had lived in New York prior to their move to Connecticut, and had moved to that state only so that the wife could pursue a graduate degree at Yale University. All indications were that their move there had been considered by both parties as temporary, so their domicile at the time of the move ' New York ' should be presumed their continuing domicile. Therefore, as the wife was a domiciliary of New York for several years, despite her temporary residency in Connecticut, and the parties were married in New York, the requirements of DRL ' 230 were met and the court need not dismiss the divorce action for lack of jurisdiction.

In Probate Case, First Department Says Canadian Same-Sex Marriage Valid

The Appellate Division, First Department, finding that a couple's same-sex Canadian marriage must be recognized in New York, affirmed an order of the Surrogate's Court, New York County (Kristen Booth Glen, S.), which denied a petitioner's motion to vacate the probate of his brother's will. H. Kenneth Ranftle v. Craig Leiby, 4214, NYLJ 1202483192791, at *1 (Surr., NY, Feb. 24, 2011) (Mazzarelli, J.P., Catterson, Manzanet-Daniels, Romn, JJ.).

The deceased married the respondent in a legally authorized same-sex marriage in Canada, on June 7, 2008. When he died several months later his spouse, who had been named in the will as executor, filed a petition for probate in the Surrogate's Court. In his will, the deceased left $30,000 to each of his three brothers.The respondent identified himself as the decedent's surviving spouse and the sole distributee, and he served the legatees with notice of probate. On Dec. 15, 2008, the Surrogate's Court issued a decree granting probate. On Jan. 26, 2009, the Surrogate's Court issued an opinion finding that the respondent was “decedent's surviving spouse and sole distributee” (Estates Powers and Trusts Law (EPTL) 4-1.1) and, therefore, citation of the probate proceeding need not issue to anyone under Surrogate's Court Procedure Act (SCPA) ' 1403(1)(a). The appellant, one of the deceased's brothers, petitioned the Surrogate's Court for vacatur of the probate decree and permission to file objections, alleging that the court was without jurisdiction to grant probate without citation having been issued on the decedent's surviving siblings. He argued that the recognition of the decedent's same-sex marriage violated public policy in New York and that he, as a distributee, should have been cited in the probate proceeding and provided with an opportunity to file objections to it. Citing to Martinez v. County of Monroe, 50 AD3d 189 [2008], lv dismissed 10 NY3d 856 (2008), a case in which the Court of Appeals held that out-of-state same-sex marriages would be recognized in New York because such recognition is not against natural law or public policy, the Surrogate's Court found the appellant's appeal was without merit. The brother appealed.

The First Department agreed with Surrogate's Court, rejecting the appellant's contention that same-sex marriage should not be recognized because New York's legislature has not passed laws permitting same-sex marriage or authorizing the recognition of such marriages legally entered into elsewhere. In affirming the Surrogate Court's decision, the First Department, citing to Moore v. Hegeman, 92 NY 521, 524 (1883), stated: “In the absence of an express statutory prohibition ' legislative action or inaction does not qualify as an exception to the marriage recognition rule.”

No Need to Dismiss No-Fault Action

Supreme Court, Nassau County, denied a woman's motion for dismissal of her husband's no-fault divorce action even though it was brought after she filed for divorce claiming inhuman treatment on constructive abandonment. Heinz v. Heinz, 203438/10, NYLJ 1202483036423, at *1 (Sup., NA, Decided Feb. 16, 2011) (Palmieri, J.).

The court was asked to decide whether a man could begin his own divorce action after the “no-fault” ground came into effect in New York if his wife's fault-based action against him was commenced prior to the time when the no-fault ground became effective. The wife sought dismissal of the second action, arguing that hers was pending. She contended that as her case was commenced before the no-fault effective date, the new no-fault statute could not apply. The husband argued he was not obligated to counterclaim for divorce, but could maintain his own action. The court agreed with the husband. In addition, in further support of the husband's position, the court noted that the husband was served with the summons with notice after he instituted his action, so no jurisdiction over his person was acquired and no appearance in wife's action could have occurred before the new statute came into effect. Therefore, the court denied the wife's motion to dismiss.

Move to Connecticut Did Not Terminate NY Domicile

Though a couple moved to Connecticut for educational reasons, their domicile remained in New York and a divorce action brought in New York therefore need not be dismissed for lack of jurisdiction. P.C. v. K.K., 53782/10, NYLJ 1202479408573, at *1 (Fam. Ct., Kings Cty. 1/7/11) (Thomas, J.).

The wife moved for dismissal of her husband's divorce action, claiming that they did not meet the jurisdictional requirements of Domestic Relations Law ' 230. Under DRL
' 230 (1), an action for divorce may be maintained only when “[t]he parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding.” The wife based her argument on the fact that she and her husband had been living in Connecticut together less than a year prior to the filing of the divorce. (There was no dispute concerning the facts that the parties were married in New York and the wife was a resident of New York at the time of filing.) The court found New York jurisdiction proper because the couple had lived in New York prior to their move to Connecticut, and had moved to that state only so that the wife could pursue a graduate degree at Yale University. All indications were that their move there had been considered by both parties as temporary, so their domicile at the time of the move ' New York ' should be presumed their continuing domicile. Therefore, as the wife was a domiciliary of New York for several years, despite her temporary residency in Connecticut, and the parties were married in New York, the requirements of DRL ' 230 were met and the court need not dismiss the divorce action for lack of jurisdiction.

In Probate Case, First Department Says Canadian Same-Sex Marriage Valid

The Appellate Division, First Department, finding that a couple's same-sex Canadian marriage must be recognized in New York, affirmed an order of the Surrogate's Court, New York County (Kristen Booth Glen, S.), which denied a petitioner's motion to vacate the probate of his brother's will. H. Kenneth Ranftle v. Craig Leiby, 4214, NYLJ 1202483192791, at *1 (Surr., NY, Feb. 24, 2011) (Mazzarelli, J.P., Catterson, Manzanet-Daniels, Romn, JJ.).

The deceased married the respondent in a legally authorized same-sex marriage in Canada, on June 7, 2008. When he died several months later his spouse, who had been named in the will as executor, filed a petition for probate in the Surrogate's Court. In his will, the deceased left $30,000 to each of his three brothers.The respondent identified himself as the decedent's surviving spouse and the sole distributee, and he served the legatees with notice of probate. On Dec. 15, 2008, the Surrogate's Court issued a decree granting probate. On Jan. 26, 2009, the Surrogate's Court issued an opinion finding that the respondent was “decedent's surviving spouse and sole distributee” (Estates Powers and Trusts Law (EPTL) 4-1.1) and, therefore, citation of the probate proceeding need not issue to anyone under Surrogate's Court Procedure Act (SCPA) ' 1403(1)(a). The appellant, one of the deceased's brothers, petitioned the Surrogate's Court for vacatur of the probate decree and permission to file objections, alleging that the court was without jurisdiction to grant probate without citation having been issued on the decedent's surviving siblings. He argued that the recognition of the decedent's same-sex marriage violated public policy in New York and that he, as a distributee, should have been cited in the probate proceeding and provided with an opportunity to file objections to it. Citing to Martinez v. County of Monroe , 50 AD3d 189 [2008], lv dismissed 10 NY3d 856 (2008), a case in which the Court of Appeals held that out-of-state same-sex marriages would be recognized in New York because such recognition is not against natural law or public policy, the Surrogate's Court found the appellant's appeal was without merit. The brother appealed.

The First Department agreed with Surrogate's Court, rejecting the appellant's contention that same-sex marriage should not be recognized because New York's legislature has not passed laws permitting same-sex marriage or authorizing the recognition of such marriages legally entered into elsewhere. In affirming the Surrogate Court's decision, the First Department, citing to Moore v. Hegeman , 92 NY 521, 524 (1883), stated: “In the absence of an express statutory prohibition ' legislative action or inaction does not qualify as an exception to the marriage recognition rule.”

No Need to Dismiss No-Fault Action

Supreme Court, Nassau County, denied a woman's motion for dismissal of her husband's no-fault divorce action even though it was brought after she filed for divorce claiming inhuman treatment on constructive abandonment. Heinz v. Heinz, 203438/10, NYLJ 1202483036423, at *1 (Sup., NA, Decided Feb. 16, 2011) (Palmieri, J.).

The court was asked to decide whether a man could begin his own divorce action after the “no-fault” ground came into effect in New York if his wife's fault-based action against him was commenced prior to the time when the no-fault ground became effective. The wife sought dismissal of the second action, arguing that hers was pending. She contended that as her case was commenced before the no-fault effective date, the new no-fault statute could not apply. The husband argued he was not obligated to counterclaim for divorce, but could maintain his own action. The court agreed with the husband. In addition, in further support of the husband's position, the court noted that the husband was served with the summons with notice after he instituted his action, so no jurisdiction over his person was acquired and no appearance in wife's action could have occurred before the new statute came into effect. Therefore, the court denied the wife's motion to dismiss.