Ackerman v. Ackerman

• Decision Date: 13 March 1973
• Parties: Howard ACKERMAN, Plaintiff, v. Diane ACKERMAN, Defendant.
• Court: New York Supreme Court

Page 720

342 N.Y.S.2d 720

78 Misc.2d 1

Howard ACKERMAN, Plaintiff, v. Diane ACKERMAN, Defendant.

Supreme Court, Special Term, Westchester County, Part III.

March 13, 1973.

Hecker, Hecker & Hecker, White Plains, for plaintiff.

William E. Bandon, Jr., New York City, for defendant.

MARIO PITTONI, Justice.

In this action for partition defendant moves for an order dismissing the complaint for failure to state a cause of action and cancelling a lis pendens.

The facts are uncontroverted. The parties were married in this state in 1965 and one year later they took title as tenants by the entirety to certain real property situate in the Town of Yorktown. Subsequently, on February 23, 1972, plaintiff obtained an Ex parte divorce decree in the State of Georgia. Defendant was not personally served with process in the divorce action and did not appear therein. Defendant's answer sets forth an affirmative defense attacking the validity of the divorce decree. Consequently, the question presented is whether an Ex parte divorce decree issued under the laws of a sister-state terminates the ownership status of former spouses to real property located in this state.

Tenancies by the entirety are creatures of the common law unitary concept of husband and wife (Jooss v. Fey, 129 N.Y. 17, 29 N.E. 136). A tenancy by the entirety can exist only between a husband and wife and is dependent upon the existence of a valid marital relationship at the time of transfer to them (Rasch, Real Property Law & Practice § 600).

It is well settled and codified that a tenant by the entirety may not maintain an action for partition (Real Property Actions & Proceedings Law § 901; Vollaro v. Vollaro, 144 App.Div. 242, 129 N.Y.S. 43). However, a divorce converts a tenancy by the entirety to one in common whereby an action for partition lies (Yax v. Yax, 240 N.Y. 590, 148 N.E. 717; Stelz v. Shreck, 128 N.Y. 263, 28 N.E. 510; Ripp v. Ripp, 38 A.D.2d 65, 327 N.Y.S.2d 465) since the right of survivorship ceases upon marital dissolution and neither spouse can thereafter claim any interest in the real property by virtue of the former marriage (Hohenrath v. Wallach, 37 A.D.2d 248, 323 N.Y.S.2d 560 app.dism. 30 N.Y.2d 674, 332 N.Y.S.2d 106, 282 N.E.2d 891). Upon dissolution of the marriage the former spouses become seized in fee of the premises as tenants in common (14 Carmody-Wait 2d, Partition, § 91:12) and no constitutional rights are violated by the legal conversion of such ownership status to the property (Plancher v. Plancher, 35 A.D.2d 417, 317 N.Y.S.2d 140, aff'd on op. below 29 N.Y.2d 880, 328 N.Y.S.2d 444, 278 N.E.2d 650).

Prior to Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1572 this state refused to give effect to foreign decrees of divorce either as to marital status or property rights (Vanderbilt v. Vanderbilt, 1 N.Y.2d 342, 153 N.Y.S.2d 1, 135 N.E.2d 553, aff'd 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456). After the Williams case, Supra, such decrees were accorded full faith and credit, but only insofar as the marital status had been adjudicated (ibid.). Thus, the concept of divisible divorces was born and it was held that foreign Ex parte decrees did not affect economic incidents arising out of the marital relationship (Vanderbilt v. Vanderbilt, Supra; see Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561; DiRusso v. DiRusso, 55 Misc.2d 839, 287 N.Y.S.2d 171; Anno. 28 A.L.R.2d 1378 'Divorce-- Constructive Service--Alimony'; Anno. 22 A.L.R.2d 724, 730--33 'Divorce--Property Rights--Res Judicata'). Consequently, the courts in this state uniformly held that, absent conduct creating an estoppel, Ex parte foreign divorce decrees do not affect ownership status of real property in New York although such decrees may be valid for other purposes (Anello v. Anello, 22 A.D.2d 694, 253 N.Y.S.2d 759; Kraus v. Huelsman, 52 Misc.2d 807, 276 N.Y.S.2d 976, aff'd 29 A.D.2d 738, 287 N.Y.S.2d 365; Kolb v. Kolb, 52 Misc.2d 313, 276 N.Y.S.2d 317; Huber v. Huber, 26 Misc.2d 539, 209 N.Y.S.2d 637; Leis v. Shaughnessy, 26 Misc.2d 536, 209 N.Y.S.2d 648; 15 N.Y.Jur., Domestic Relations, § 170; cf. Krieger v. Krieger, 25 N.Y.2d 364, 306 N.Y.S.2d 441, 254 N.E.2d 750; Knight v. Knight, 31 A.D.2d 267, 296 N.Y.S.2d 1007, aff'd 25 N.Y.2d 957, 305 N.Y.S.2d 354, 252 N.E.2d 852; Topilow v. Peltz, 25 A.D.2d 874, 270 N.Y.S.2d 116; Mtr. of Bock's Will, 70 Misc.2d 470, 333 N.Y.S.2d 801; see, Burford v. Burford, 24 A.D.2d 491, 261 N.Y.S.2d 489; Ann. 34 A.L.R.3d 969 'Jurisdiction--Divorce--Foreign Realty'). The leading case in this state for the aforementioned principle is Huber v. Huber, Supra, where Mr. Justice Meyer analyzed the problem in an opinion which was cited and approved by the Appellate Division, Second Department in Anello v. Anello, Supra.

Plaintiff urges that the above principle has been abrogated through enactment of the divorce reform laws in this state in 1966 (L.1966, c. 254 (amending Domestic Relations Law § 170)) and by the broad language contained in the Court of Appeals opinion which initially construed certain provisions of the new legislation (Gleason v. Gleason, 26 N.Y.2d 28, 308 N.Y.S.2d 347, 256 N.E.2d 513). The Gleason case was decided on January 21, 1970, and it is interesting to note that only approximately one month earlier the Supreme Court, Suffolk County, adhered to the Huber--Anello principles (Beary v. Hoffman, 64 Misc.2d 1018, 316 N.Y.S.2d 343). In the Gleason case, the Court of Appeals held that certain provisions of our liberalized divorce laws applied retrospectively. The court noted that a wife's prospective right of inheritance is not a vested property right and that certain economic incidents flowing from the marital status cease upon its termination (26 N.Y.2d at 40--41, 308 N.Y.S.2d at 355--356, 256 N.E.2d at 519--520). Subsequently, the Appellate Division, Second Department, passed upon a facet of the tenancy by the entirety problem (Plancher v. Plancher, 35 A.D.2d 417, 317 N.Y.S.2d 140, aff'd on op. below 29 N.Y.2d 880, 328 N.Y.S.2d 444, 278 N.E.2d 650). In the cited case plaintiff obtained an Ex parte Mexican divorce and subsequently sued for divorce and partition in New York. The appellate court observed that by virtue of the New York action plaintiff was implicitly conceding the invalidity of the foreign decree (35 A.D.2d at 419, 317 N.Y.S.2d at 141). The court unanimously held this procedure proper to obtain a partition of real property located in this state. In an opinion by Mr. Justice Hopkins, which was adopted by the Court of Appeals, the court stated (35 A.D.2d at 420--421, 317 N.Y.S.2d at 143):

'The rights of tenants by the entirety rest in the common law. 'This rule is based upon the unity of husband and wife, and is very ancient. It must have had its origin in the archaic period of our race, and it colored all the relations of husband and wife to each other, to the law and to society' (Bertles v. Nunan, 92 N.Y. 152, 157). The fiction of unity, despite the advent of legislation broadening the powers of married women, has persisted in the present concept of the tenancy (Stelz v. Shreck, 128 N.Y. 263, 28 N.E. 510; Matter of Klatzl, 216 N.Y. 83, 110 N.E. 181; Yax v. Yax, 240 N.Y. 590, 148 N.E. 717; Hosford v. Hosford, 273 App.Div. 659, 80 N.Y.S.2d 306). Upon the making of a grant of real property to husband and wife, the tenancy comes into being; and, on the death of one, the surviving spouse takes the entire estate. 'The survivor takes the whole in case of death because that event has terminated the marriage and the consequent unity of person' (Stelz v. Shreck, Supra, 128 N.Y. p. 267, 28 N.E. 510). When a divorce occurs, the marital relation is altered, and the rights of the severed parties in the property are altered as well, so that the parties become tenants in common. This is not because of any retroactive effect of the decree of divorce on the original grant to the spouses, but because The creation of the tenancy by the entirety was dependent on their marriage and the marriage was a continuing condition for the existence of the tenancy (Stelz v. Shreck, Supra, p. 269, 28 N.E. 512). Indeed, as the opinion states in Stelz (pp. 269--270, 28 N.E. 512), the guilty spouse in the divorce action enjoys his rights as tenant in common even as much as the innocent spouse.

'No matter, then, how the marital status is...