Decisions of Interest

No Trial for No-Fault Divorce

Acting Supreme Court Justice Richard A. Dollinger of Monroe County has held that a man who does not wish to end his marriage is not entitled to a trial on the question of whether the marriage is in fact irretrievably broken. Palermo v. Palermo, 2010/15824 (Sup. Ct., Monroe Cty. 10/20/11) (Dollinger, J.).

The parties were married in 1977. In 2000, the wife moved out of the house and brought suit for divorce, alleging cruel and inhuman treatment. After trial, the jury returned a no-cause verdict. In 2011, the wife brought this second suit for divorce on the grounds of irretrievable breakdown, in accordance with the newly enacted no-fault divorce ground found in Domestic Relations Law (DRL) ' 170(7). The husband moved to dismiss, claiming the statute of limitations had expired on his wife's claims, that the matter was res judicata and that the complaint failed to state a cause of action.

In deciding that a party seeking divorce in accordance with DRL ' 170(7) need not prove that the marriage is irretrievably broken, beyond attesting to the same, Judge Dollinger aligned himself with Justice Anthony J. Falanga of Nassau County Supreme Court (who determined in A.C. v. D.R., 2011 NY Slip Op 21113 (2011) that no trial was required when one party avers that the marriage is not irretrievably broken), and against Justice Robert J. Muller of Essex County Supreme Court (who found to the contrary in Strack v. Strack, 2011 NY Slip Op 21033 (2011)). Justice Dollinger based his decision on what he considered was the legislature's intent in enacting DRL ' 170(7): to do away with the courts' intrusion into the “inner life of a marriage to objectively determine its viability.” In addition, he noted that “[b]ased on the best legislative research available to this court, no member of the legislature (or the Governor) ever said anything indicating the 'a sworn statement by one party that the marriage was irretrievably broken for a period in excess of six month' is subject to the jury trial right under DRL ' 173.” The judge thus concluded that DRL ' 170(7) is a true no-fault divorce ground requiring no proof of the facts that led one party to proclaim the marriage broken.

Father Gets Another Chance, for Child's Sake

Although a father's own actions led to his son's alienation, the Third Department agreed with Supreme Court and a testifying clinical social worker that it remained in the child's best interest to continue visitation, in hopes that the relationship could be salvaged. Susan LL v. Victor LL, 2011 NY Slip Op 7332(3d Dept. 10/20/11) (Mercure, J.P., Rose, Malone Jr., Kavanagh and Garry, JJ.).

The parties' child, born in 2002, lives in New York with his mother and visited his father in Florida. The father made it a habit of putting the child in the middle of his fights with the mother. He also left angry messages on the mother's answering machine, which the child heard. Despite these ongoing problems, the child expressed an interest in seeing his father up until the time the father said that if the child did not come for visits in Florida, he did not wish to see him at all. The child then stopped visiting in Florida and the father did not go to New York to see the child. In May 2010 the mother petitioned for suspension of the father's visitation rights, but Supreme Court denied the request. It did, however, place conditions on the father's continued right to visitation, including that these visits should take place in New York until further notice. On the mother's appeal, the Third Department affirmed, finding that “[b]y directing the father, among other things, to exercise all available visitation, engage in counseling, and communicate regularly with the child, and further directing the mother to improve her efforts to encourage and facilitate visitation, the court offered the father an opportunity to rebuild the child's trust, with the expectation that visitation in Florida could be resumed when these efforts succeeded. We find a sound and substantial basis in the record for the court's conclusion that this disposition is in the best interests of the child.”

No Trial for No-Fault Divorce

Acting Supreme Court Justice Richard A. Dollinger of Monroe County has held that a man who does not wish to end his marriage is not entitled to a trial on the question of whether the marriage is in fact irretrievably broken. Palermo v. Palermo, 2010/15824 (Sup. Ct., Monroe Cty. 10/20/11) (Dollinger, J.).

The parties were married in 1977. In 2000, the wife moved out of the house and brought suit for divorce, alleging cruel and inhuman treatment. After trial, the jury returned a no-cause verdict. In 2011, the wife brought this second suit for divorce on the grounds of irretrievable breakdown, in accordance with the newly enacted no-fault divorce ground found in Domestic Relations Law (DRL) ' 170(7). The husband moved to dismiss, claiming the statute of limitations had expired on his wife's claims, that the matter was res judicata and that the complaint failed to state a cause of action.

In deciding that a party seeking divorce in accordance with DRL ' 170(7) need not prove that the marriage is irretrievably broken, beyond attesting to the same, Judge Dollinger aligned himself with Justice Anthony J. Falanga of Nassau County Supreme Court (who determined in A.C. v. D.R. , 2011 NY Slip Op 21113 (2011) that no trial was required when one party avers that the marriage is not irretrievably broken), and against Justice Robert J. Muller of Essex County Supreme Court (who found to the contrary in Strack v. Strack , 2011 NY Slip Op 21033 (2011)). Justice Dollinger based his decision on what he considered was the legislature's intent in enacting DRL ' 170(7): to do away with the courts' intrusion into the “inner life of a marriage to objectively determine its viability.” In addition, he noted that “[b]ased on the best legislative research available to this court, no member of the legislature (or the Governor) ever said anything indicating the 'a sworn statement by one party that the marriage was irretrievably broken for a period in excess of six month' is subject to the jury trial right under DRL ' 173.” The judge thus concluded that DRL ' 170(7) is a true no-fault divorce ground requiring no proof of the facts that led one party to proclaim the marriage broken.

Father Gets Another Chance, for Child's Sake

Although a father's own actions led to his son's alienation, the Third Department agreed with Supreme Court and a testifying clinical social worker that it remained in the child's best interest to continue visitation, in hopes that the relationship could be salvaged. Susan LL v. Victor LL , 2011 NY Slip Op 7332(3d Dept. 10/20/11) (Mercure, J.P., Rose, Malone Jr., Kavanagh and Garry, JJ.).

The parties' child, born in 2002, lives in New York with his mother and visited his father in Florida. The father made it a habit of putting the child in the middle of his fights with the mother. He also left angry messages on the mother's answering machine, which the child heard. Despite these ongoing problems, the child expressed an interest in seeing his father up until the time the father said that if the child did not come for visits in Florida, he did not wish to see him at all. The child then stopped visiting in Florida and the father did not go to New York to see the child. In May 2010 the mother petitioned for suspension of the father's visitation rights, but Supreme Court denied the request. It did, however, place conditions on the father's continued right to visitation, including that these visits should take place in New York until further notice. On the mother's appeal, the Third Department affirmed, finding that “[b]y directing the father, among other things, to exercise all available visitation, engage in counseling, and communicate regularly with the child, and further directing the mother to improve her efforts to encourage and facilitate visitation, the court offered the father an opportunity to rebuild the child's trust, with the expectation that visitation in Florida could be resumed when these efforts succeeded. We find a sound and substantial basis in the record for the court's conclusion that this disposition is in the best interests of the child.”