Elson v. Elson

• Decision Date: 28 August 1989
• Citation: 149 A.D.2d 141,545 N.Y.S.2d 311
• Parties: C. Lynn ELSON, Appellant, v. Barry R. ELSON, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 311

545 N.Y.S.2d 311

149 A.D.2d 141

C. Lynn ELSON, Appellant, v. Barry R. ELSON, Respondent.

Supreme Court, Appellate Division Second Department.

Aug. 28, 1989.

Moran & Brodrick, Garden City (Leslie K. Rothkopf, of counsel), for appellant.

Shea & Gould, New York City (Jacalyn F. Barnett and Jocelyn C. Delbaum, of counsel), for respondent.

Before THOMPSON, J.P., and RUBIN, SPATT and BALLETTA, JJ.

BALLETTA, Justice.

In this case a question has arisen as to the impact an out-of-state divorce decree has upon a party's subsequent claim for equitable distribution in this State. We hold that where the foreign divorce decree was rendered prior to July 19, 1980, and it is not set aside, a party may not maintain a claim for equitable distribution under Domestic Relations Law § 236(B).

After having resided in the State of Colorado for two years, the defendant husband in this action obtained a divorce in that State. The divorce decree was dated December 28, 1979, some seven months prior to the effective date of the Equitable Distribution Law in this State. The plaintiff wife had never resided in Colorado and had never appeared in the Colorado action. A subsequent Colorado court order directed the defendant to pay child support in the sum of $300 per month. On or about June 25, 1986, the plaintiff commenced the instant action seeking, inter alia, a divorce on the ground of abandonment, equitable distribution of the marital property, and maintenance and child support. Additionally, the complaint sought similar economic relief in the event the court found that the foreign divorce decree was valid.

Specifically, the plaintiff's second cause of action alleged:

"TENTH: The plaintiff herein did not appear in [the Colorado] action and was not served with any process or papers whatsoever within the State of Colorado.

"ELEVENTH: That said divorce was and is colorable and is of no force and effect in law for the purpose of establishing the plaintiff's right to maintenance and the distribution of marital property in that the plaintiff was at no time subjected to the personal jurisdiction of the Courts of Colorado".

The third cause of action was for support under the Family Court Act article 4, and the fourth cause of action was a claim for necessaries in the sum of $100,000.

In her "wherefore" clause to the complaint, the plaintiff requested, inter alia, a judgment:

"1. For an absolute divorce * * *

"8. Or, in the alternative, in the event that the Court should determine that the plaintiff's marriage to the defendant was heretofore terminated, then in that event, the plaintiff requests that the Court distribute the parties' marital property and fix maintenance and child support pursuant to Section 236B of the Domestic Relations Law".

The Supreme Court, Suffolk County, granted the defendant's motion to dismiss the plaintiff's action for a New York divorce and related relief essentially on the grounds that the plaintiff had failed to challenge the validity of the Colorado divorce, that the Colorado divorce decree was entitled to full faith and credit, and that the plaintiff was guilty of laches. The plaintiff appealed.

As a general rule, pleadings are not to be dismissed merely because they are inartfully drawn (Macey v. New York State Elec. & Gas Corp., 80 A.D.2d 669, 436 N.Y.S.2d 389), and affidavits may be used freely upon a motion to dismiss in order to preserve inartfully pleaded, but potentially meritorious, claims by remedying the defects in the complaint (Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635-636, 389 N.Y.S.2d 314, 357 N.E.2d 970). In this case, the plaintiff stated in her affidavit in opposition to the motion to dismiss:

"4. I have never stepped foot into the State of Colorado. * * * I 'did not appear in person or by attorney.' I have never accepted the jurisdiction of the Colorado Courts. * * * The Colorado Courts have never had personal jurisdiction over your deponent. I have brought the instant action for a declaration of the validity of the Colorado decree and for an adjudication of my economic and property rights in the State of New York where proper jurisdiction exists".

At her pretrial deposition, the plaintiff also identified a document as the "complaint I filed as a Plaintiff. It was an action for divorce at the time to determine legally that the divorce had been, in fact, granted".

Domestic Relations Law § 236(B) lists the types of actions which fall within the scope of the Equitable Distribution Law:

"2. Matrimonial actions. Except as provided in subdivision five of this part, the provisions of this part shall be applicable to actions for an annulment or dissolution of a marriage, for a divorce, for a separation, for a declaration of the nullity of a void marriage, for a declaration of the validity or nullity of a foreign judgment of divorce, for a declaration of the validity or nullity of a marriage, and to proceedings to obtain maintenance or a distribution of marital property following a foreign judgment of divorce, commenced on and after the effective date of this part. Any application which seeks a modification of a judgment, order or decree made in an action commenced prior to the effective date of this part shall be heard and determined in accordance with the provisions of part A of this section" (emphasis supplied).

While the language used by the plaintiff is often ambiguous, when one reads the complaint as a whole in conjunction with her affidavit and deposition testimony, it becomes apparent that the plaintiff sought a declaration as to the validity of the Colorado divorce. Clearly such a cause of action is covered by the statute (see, Felt v. Felt, 93 A.D.2d 396, 461 N.Y.S.2d 835, aff'd, 62 N.Y.2d 691, 476 N.Y.S.2d 537, 465 N.E.2d 44). Since pleadings are to be liberally construed and there is no showing of prejudice to the defendant, the defect in the complaint should have been ignored (see, CPLR 3026; see also, Foley v. D'Agostino, 21 A.D.2d 60, 64-65, 248 N.Y.S.2d 121).

However, although the ambiguities in the plaintiff's pleading have been resolved, another problem remains. The Supreme Court correctly determined that the Colorado divorce decree was entitled to full faith and credit to the extent that it affected the marital res (see, Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456; Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561; Lansford v. Lansford, 96 A.D.2d 832, 465 N.Y.S.2d 583). Such a determination not only leads logically to the dismissal of the plaintiff's first cause of action for a divorce, but it also has a serious impact on the plaintiff's claim for equitable distribution under the second cause of action.

The problem becomes apparent in light of the language of Domestic Relations Law § 236(B)(2) which limits equitable distribution to certain types of actions "commenced on and after the effective date of this part," i.e., July 19, 1980. This limitation represented a major policy decision by the Legislature against retroactive application of the Equitable Distribution Law (see, Foster, Commentary on Equitable Distribution, 26 New York Law School Law Review 1, 2). "On approval of the legislation by the Governor, July 19, 1980 became the watershed; property rights in actions commenced prior to that date are to be resolved in accordance with the law as set out in [Domestic Relations Law § 236] part A; only actions commenced subsequent to that date are subject to the equitable distribution provisions contained in part B" (Valladares v. Valladares, 55 N.Y.2d 388, 391, 449 N.Y.S.2d 687, 434 N.E.2d 1054; see also, Tucker v. Tucker, 55 N.Y.2d 378, 449 N.Y.S.2d 683, 434 N.E.2d 1050).

With respect to divorces within New York State, therefore, it is quite clear that "(t)he statute does not apply retroactively to agreements and decrees executed or entered before July 19, 1980, and such agreements or decrees come within the purview of Domestic Relations Law § 236(A)" (see, 3 Foster, Freed and Brandes, Law and the Family New York, § 1.1, at 12). The same rule should also apply to valid out-of-state divorce decrees made prior to July 19, 1980.

In Lavi v. Lavi, 103 A.D.2d 400, 480 N.Y.S.2d 338, the plaintiff wife obtained a Mexican divorce in 1969, and thereafter, in 1983, commenced an action in New York for divorce, or, in the alternative, to set aside the Mexican divorce and to declare the validity of the parties' marriage. This court affirmed an order of the Supreme Court granting the plaintiff pendente lite relief, finding that the wife's complaint had set forth a "matrimonial action" as that term was defined in Domestic Relations Law § 236(B)(2) (Lavi v. Lavi, supra, at 404-405, 480 N.Y.S.2d 338). In doing so, this court rejected the defendant husband's argument that since the foreign divorce was obtained prior to 1980, the 1983 proceeding was thus governed by the pre-equitable distribution provisions of Domestic Relations Law § 236(A):

"A reading of the language of section 236 (Part B, subd 2) of the Domestic Relations Law leads us to conclude that, when faced with a declaratory action under section 236 (part B, subd 2) of the Domestic Relations Law, it is that action which must be 'commenced on and after the effective date' of the Equitable Distribution Law and that the date of the foreign divorce judgment under attack is not controlling, and it would appear that the Felt court read the language in the same way.

* * *

* * *

"Before leaving this point, we would note that we are not dealing with a proceeding commenced 'to obtain maintenance or a distribution of marital property following a foreign judgment of divorce' (Domestic Relations Law, § 236, part B, subd 2) * * * the fact remains that we are here faced with a situation where the plaintiff does not seek to rely on the foreign divorce for relief. Rather, she asks that such divorce be declared a nullity and that as a person still validly married to defendant sh...