Boronow v. Boronow

• Decision Date: 11 February 1988
• Citation: 525 N.Y.S.2d 179,519 N.E.2d 1375,71 N.Y.2d 284
• Parties: , 519 N.E.2d 1375 Yvette BORONOW, Appellant, v. Eugene BORONOW, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 179

525 N.Y.S.2d 179

71 N.Y.2d 284, 519 N.E.2d 1375

Yvette BORONOW, Appellant, v. Eugene BORONOW, Respondent.

Court of Appeals of New York.

Feb. 11, 1988.

David Howe, Brooklyn, for appellant.

Norman Paul Weiss, for respondent.

OPINION OF THE COURT

BELLACOSA, Judge.

We agree with the Appellate Division that a party to a concluded matrimonial action, who had a full and fair opportunity to contest title to the former marital home, is barred by res judicata principles from subsequently and separately reopening that issue. The discretionary authority reposed in the courts under Domestic Relations Law § 234 is not to the contrary and may not be read as conferring unilateral and unfettered options on parties in this respect. We thus affirm.

Appellant Yvette Boronow, a French citizen, moved to New York from Puerto Rico in 1949 at the age of 18. In June 1956, she returned for two days to Puerto Rico with respondent Eugene Boronow, where they were married. Subsequently, the parties resided in New York and purchased a marital home in Jamaica Estates, Queens County, New York City. Title to the home was taken in Eugene Boronow's name only. The parties were divorced in February 1977 after an action initiated by Mrs. Boronow, and she was awarded possession of the home. Although title to the property was not decided, Yvette Boronow had submitted an affidavit claiming joint ownership of the home and Mr. Boronow denied that assertion in an answering affidavit. This litigation arose under preequitable distribution laws, where division of marital property could remain unresolved in a manner not permissible today (Domestic Relations Law § 236[B][5][a] ), and has been going on since 1976 with multiple proceedings.

In July 1982, Mr. Boronow brought a motion seeking modification of the divorce decree, including possession of the house. In October 1982, the former wife instituted the present action seeking a declaratory judgment that, under principles of Puerto Rican law, a conjugal contract existed between the parties entitling her to one half of the marital estate, including the marital premises, and seeking to impress a constructive trust upon the premises. She alleged that title to the premises was supposed to have been held jointly and that she was deceived by her husband who, without her knowledge and consent, had her name kept off the deed. She moved to consolidate her action with her former husband's motion to modify; he cross-moved to dismiss on the grounds that she had failed to state a claim and that the action was barred by res judicata, collateral estoppel, and the Statute of Limitations. The Trial Justice denied both the motion to consolidate and the cross motion to dismiss. That court held that Domestic Relations Law § 234 makes resolution of title issues permissive in a divorce action, thus permitting a subsequent plenary action to adjudicate that issue; that a cause of action for constructive trust had been adequately pleaded; and that the moving papers provided an insufficient basis to determine that the action was not timely commenced.

The Appellate Division reversed, finding the action barred by res judicata and by the Statute of Limitations ( Boronow v. Boronow, 111 A.D.2d 735, 490 N.Y.S.2d 230). It held that the question of title to the marital premises could have been, but was not, raised and litigated in the prior matrimonial action and that res judicata barred this subsequent action. It added that even if such an action could be maintained, it was barred by the six-year Statute of Limitations (CPLR 213[1] ) which begins to run in a constructive trust case upon the occurrence of the wrongful act. In this case the court ruled that act occurred on August 4, 1965 when Mr. Boronow took, allegedly by fraudulent means, title of the marital home in his name only. Lastly, the Appellate Division found that the laws of Puerto Rico had no pertinency in this case.

Yvette Boronow appeals to this court urging that we adopt the trial court's view, while Eugene Boronow counters that we should affirm the Appellate Division analysis.

In pertinent part, Domestic Relations Law § 234 provides: "[i]n any action for divorce, for a separation, for an annulment or to declare the nullity of a void marriage, the court may (1) determine any question as to the title to property arising between the parties" (emphasis supplied). Differences have arisen among the departments of the Appellate Division as to whether the statute permits a subsequent and separate litigation of title questions between ex-spouses after a matrimonial action has been finally determined or whether such litigations are barred by res judicata principles ( compare, Perry v. Perry, 79 A.D.2d 851, 434 N.Y.S.2d 496; Szabo v. Szabo, 71 A.D.2d 32, 421 N.Y.S.2d 500; Weichold v. Weichold, 54 A.D.2d 1015, 388 N.Y.S.2d 171; with, Scattoreggio v. Scattoreggio, 115 A.D.2d 531, 496 N.Y.S.2d 57; Rakowski v. Rakowski, 109 A.D.2d 1, 489 N.Y.S.2d 929; Marinelli v. Marinelli, 88 A.D.2d 635, 450 N.Y.S.2d 228, 229; see, Scheinkman, Practice Commentary, McKinney's Cons. Law of N.Y., Book 14, Domestic Relations Law C234:2, at 76).

The Third and Fourth Departments have not allowed res judicata principles to block actions involving questions of title between ex-spouses who failed to raise or litigate the issue in a prior matrimonial action. Reasoning that the statutory language of Domestic Relations Law § 234 is permissive only, they hold that "[f]ailure to raise or litigate the title question in the first action does not constitute a waiver or bar of any rights based upon such title" ( Perry v. Perry, 79 A.D.2d 851, 434 N.Y.S.2d 496, supra; see also, Szabo v. Szabo, 71 A.D.2d 32, 36, 421 N.Y.S.2d 500, supra [questions of title between ex-spouses should be raised in a separate and plenary action, not in a motion relating back to the divorce decree]; Weichold v. Weichold, 54 A.D.2d 1015, 1016, 388 N.Y.S.2d 171, supra [a separate and plenary action to adjudicate rights as to title may be brought when they were neither litigated nor raised in the matrimonial action] ). We reject those holdings and that reasoning.

The Second Department has held, as in the present case, that res judicata bars a subsequent plenary action concerning an issue of marital property which could have been, but was not, raised in the prior matrimonial action ( see also, Rakowski v. Rakowski, 109 A.D.2d 1, 5, 489 N.Y.S.2d 929, supra; contra, Foster v. Foster, 99 A.D.2d 284, 471 N.Y.S.2d 867). "[T]he parties had the right to expect that any such matters not there considered were not going to be litigated" ( Marinelli v. Marinelli, 88 A.D.2d 635, 636, 450 N.Y.S.2d 228, 229, supra; see also, Scattoreggio v. Scattoreggio, 115 A.D.2d 531, 532, 496 N.Y.S.2d 57, sup ["dismissal of an action on the ground of res judicata is warranted where it concerns an issue of title which could have been, but was not, litigated in the prior matrimonial action"] ). In rejecting the opposite view of the other departments, the Second Department has construed the permissive language to apply only to the courts and not the litigants. "[T]he issue of title, if raised, need not be decided by the matrimonial court and can be raised again in a separate plenary action. However, the language of Domestic Relations Law § 234 does not allow litigants to endlessly commence separate actions to adjudicate issues of title which could have been, but were not, raised in a prior matrimonial action" ( Rakowski v. Rakowski, 109 A.D.2d 1, 6, 489 N.Y.S.2d 929, supra ). In effect, that court concludes that the statutory authorization does not confer a...