Braunstein v. Braunstein
| Decision Date | 30 December 1985 |
| Citation | 497 N.Y.S.2d 58,114 A.D.2d 46 |
| Parties | Ingrid Margareta-Sorman BRAUNSTEIN, Respondent-Appellant, v. David Charles BRAUNSTEIN, Appellant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
McCormack & Phillips and Ralph S. Joseph, New City (Ronald A. Phillips, of counsel), for appellant-respondent.
Ferraro, Rogers, Dranoff, Greenberg, Cody, Goldstein & Miller, P.C., Pearl River (Martin T. Johnson, of counsel), for respondent-appellant.
APPEAL, as limited by defendant husband's brief and CROSS APPEAL, as limited by plaintiff wife's cross notice of appeal and brief, from so much of an order of the Supreme Court (Harry Edelstein, J.), entered August 22, 1984 in Rockland County, as (1) denied that branch of defendant's motion which sought to dismiss plaintiff's cause of action for equitable distribution pursuant to Domestic Relations Law § 236(B); (2) denied that branch of defendant's motion which sought temporary custody and related injunctive relief; and (3) ordered both parties and their children to submit to forensic and custody evaluations pursuant to Family Court Act § 251.
The instant appeals involve post-divorce proceedings instituted after the parties hereto obtained a bilateral divorce decree in the Kingdom of Sweden. The issues presented by the appeals are two-fold; the first issue is whether the parties' bilateral foreign divorce decree, which resolved the issuesof child custody, child support and spousal maintenance, constitutes a bar to the commencement of an action in New York by the plaintiff wife for an equitable distribution award pursuant to Domestic Relations Law § 236(B). A second and related issue is whether that portion of the foreign decree which granted custody of the parties' two children to the plaintiff, and which was embodied in a written stipulation by the parties and marked "so ordered" by the Rockland County Family Court, estops the defendant husband from seeking custody in the New York action.
The parties were first wed in Sweden in July 1970. At the time of their marriage, plaintiff was a Swedish national and defendant was a United States citizen. Shortly after their marriage, the couple returned to the United States and were married in a religious ceremony in New York in September 1970. During the 13-year duration of the marriage, the parties resided in the United States; plaintiff never became a citizen of this country but held "green card" status throughout the marriage. The parties had two children: Michael, born on April 3, 1971, and Hannah Rebecca, born on September 10, 1974. Both children were born in the United States.
In June 1983, plaintiff and the parties' two children traveled to Sweden for the stated purpose of visiting plaintiff's parents as they had several times before. Shortly after plaintiff and the children arrived in Sweden, plaintiff informed defendant of her plans for remaining in Sweden and instituting a divorce action in Stockholm City Court. Defendant immediately traveled to Sweden, retained Swedish counsel and appeared in the Stockholm court to defend the action.
The certified transcript of the proceedings in the Swedish court reveals that in addition to seeking a divorce, plaintiff sought custody of and support for the parties' children as well as spousal maintenance. While defendant acceded to the divorce, he contested the issue of custody and spousal maintenance. By decision dated August 13, 1983, the Stockholm City Court granted the parties a divorce, awarded defendant custody of the children and ordered plaintiff to pay a fixed sum for child "maintenance". Plaintiff's request for spousal maintenance was denied. Plaintiff appealed from that decision. In September 1983, the Swedish appellate court reversed the city court's ruling to the extent that plaintiff was awarded custody of the parties' children and defendant was directed to pay child "maintenance" in the amount of $100 per month for each child. The appellate court also set forth a visitation schedule for the children's visits with defendant in the United States. The Swedish divorce decree became final on February 16, 1984.
During the pendency of the divorce action and before the foreign decree was finalized, the parties' children were residing in Sweden. Prior to the children's scheduled visitation with defendant in the United States, plaintiff's Swedish counsel informed defendant that plaintiff would not permit the children to travel to the United States unless there was a "guarantee", presumably in the form of a New York court order, that the children would be returned to Sweden. As a result, the parties executed a written stipulation of custody dated March 14, 1984 which provided, in pertinent part:
The executed stipulation, which also incorporated the visitation schedule set forth in the Swedish decree, was submitted to the Rockland County Family Court and marked "so ordered" by Judge Stanger on March 15, 1984.
In or about May 1984, plaintiff commenced this action in the Supreme Court, Rockland County, to compel equitable distribution of the parties' marital property pursuant to Domestic Relations Law § 236(B). Plaintiff also sought maintenance and child support. In his verified answer, defendant set forth several affirmative defenses. Essentially, defendant asserted that Domestic Relations Law § 236(B) does not permit the commencement of an action for equitable distribution in a "foreign bilateral divorce situation, as in the cause at bar". Defendant also maintained that plaintiff was barred from proceeding with her cause for equitable distribution, spousal maintenance and child support under the doctrines of collateral estoppel and res judicata. In addition to the aforesaid affirmative defenses, defendant counterclaimed for custody of the parties' two children.
In June 1984, while the instant action was pending, the parties' two children arrived in New York for an eight-week scheduled visitation period with defendant. Shortly after the children's arrival, defendant moved by order to show cause seeking, inter alia, to restrain plaintiff from removing the children from Rockland County and awarding him temporary custody pending a determination of the matter of custody. Defendant also sought dismissal of the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action.
Special Term granted defendant's motion to dismiss the complaint only to the extent, inter alia, of striking the demands for the relief of maintenance and child support. Defendant's request for temporary custody and related injunctive relief was denied. In this respect, Special Term stated, "[t]he Swedish courts had personal jurisdiction over both parties, and their determinations as to child custody, child support, and spousal maintenance bind both parties pursuant to the principles of comity and collateral estoppel". With regard to plaintiff's cause of action for equitable distribution, however, Special Term determined that this requested post-divorce relief was permitted under Domestic Relations Law § 236(B)(2) and (5)(a) following plaintiff's procurement of a foreign bilateral divorce decree. In addition, Special Term noted that the doctrines of collateral estoppel and res judicata did not preclude the seeking of such relief "since the Swedish courts made no ruling as to the distribution of marital and separate property". There should be an affirmance of Special Term's determination on these issues.
We begin with an analysis of the issue as to whether the parties' foreign divorce decree bars the commencement of an action in New York by plaintiff for equitable distribution under Domestic Relations Law § 236(B). Of particular relevance to this issue are subdivisions (2) and (5)(a) of that section which provide in pertinent part:
* * *
* * * "(5) Disposition of property in certain matrimonial actions.
.
This rather specific statutory language leaves little doubt that a spouse who is the subject...
To continue reading
Request your trial
-
Peterson v. Goldberg
...(see, Nikrooz v. Nikrooz, 167 A.D.2d 334, 561 N.Y.S.2d 301; Mahoney v. Mahoney, 131 A.D.2d 822, 517 N.Y.S.2d 184; Braunstein v. Braunstein, 114 A.D.2d 46, 497 N.Y.S.2d 58; Bennett v. Bennett, 103 A.D.2d 816, 478 N.Y.S.2d 47; cf., Elson v. Elson, supra; Mattwell v. Mattwell, 149 Misc.2d 505,......
-
Coliseum Towers Associates v. County of Nassau
...a single transaction or series of transactions for the purposes of applying the doctrine of res judicata. In Braunstein v. Braunstein 114 A.D.2d 46, 53, 497 N.Y.S.2d 58), we "Res judicata serves to preclude the renewal of issues actually litigated and resolved in a prior proceeding as well ......
-
Zwerling v. Zwerling
...in this court (see, DRL § 236[B] ) if the Rabbinical Court does not address the distribution of property. (See, Braunstein v. Braunstein, 114 A.D.2d 46, 53-54, 497 N.Y.S.2d 58.) Finally, although plaintiff claims that religious divorce proceedings are pending in Israel and that the defendan......
-
DAB v. MAS
...pursuant to the laws of this State (DRL 236B ; see , e.g. , Nikrooz v. Nikrooz , 167 A.D.2d 334, 561 N.Y.S.2d 301 ; Braunstein v. Braunstein , 114 A.D.2d 46, 497 N.Y.S.2d 58 ). Where one spouse is a resident of a foreign country and the nonresident spouse is afforded sufficient notice of a ......