Erhart v. Erhart

• Decision Date: 08 November 1996
• Citation: 226 A.D.2d 26,649 N.Y.S.2d 302
• Parties: Patricia D. ERHART, Respondent, v. John F. ERHART, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 302

649 N.Y.S.2d 302

226 A.D.2d 26

Patricia D. ERHART, Respondent, v. John F. ERHART, Appellant.

Supreme Court, Appellate Division Fourth Department.

Nov. 8, 1996.

Brian J. Barney, Rochester, for Appellant.

Dutcher, Hagelberg and Zatkowsky (Michael T. Hagelberg, Melinda Broikos of counsel), Rochester, for Respondents.

Before DENMAN, P.J., and PINE, FALLON, WESLEY and DAVIS, JJ.

FALLON, Justice:

Defendant, John F. Erhart, appeals from an order of Supreme Court that denied his motion to dismiss this action for equitable distribution, maintenance and other relief brought by his former wife, plaintiff, Patricia D. Erhart. Defendant contends on appeal that the Full Faith and Credit Clause of the United States Constitution requires that New York courts recognize the parties' Pennsylvania divorce, mandating dismissal of this action on the ground of res judicata. We agree.

The parties were married on August 19, 1978 in New York State. No children were born of the marriage. In 1992 they separated, and plaintiff moved to Pennsylvania. In October 1993 defendant commenced an action for divorce in the Court of Common Pleas of Bucks County, Pennsylvania. On October 8, 1993, plaintiff was personally served with the complaint and a Notice to Defend and Claim Rights as required by Pennsylvania law.

A hearing in the action was scheduled for January 19, 1994. Plaintiff telephoned defendant's Pennsylvania attorney and advised him that she was not going to contest the action and did not intend to appear at the hearing.

The Court of Common Pleas issued a decree of divorce.

Approximately one year later, on March 20, 1995, plaintiff commenced this action seeking, inter alia, the equitable distribution of defendant's medical degree and license to practice medicine in New York. Although not dispositive of the issues raised on appeal, we note that Pennsylvania does not recognize a medical license as marital property subject to equitable distribution (see, Hodge v. Hodge, 513 Pa. 264, 269, 520 A.2d 15, 17).

It is undisputed that the Pennsylvania court had personal jurisdiction over plaintiff, and that it had the constitutional power to adjudicate plaintiff's economic and marital property rights. It is well settled that the decree of a sister State in which both parties were subject to personal jurisdiction in that State is entitled to full faith and credit in the courts of New York (see, e.g., Pearson v. Pearson, 108 A.D.2d 402, 404, 489 N.Y.S.2d 332, affd. on other grounds 69 N.Y.2d 919, 516 N.Y.S.2d 629, 509 N.E.2d 324).

It is also undisputed that the parties' claims for maintenance and equitable distribution were finally determined in the Pennsylvania action. Although the complaint in that action did not raise the issues of maintenance or equitable distribution, plaintiff received a notice with the complaint informing her that, if she failed to appear in the action, a judgment may be entered against her for any claims requested by defendant and that she "may lose money or property or other rights important to you". The notice further provided in relevant part:

"IF YOU DO NOT FILE A CLAIM FOR ALIMONY, MARITAL PROPERTY, COUNSEL FEES OR EXPENSES BEFORE THE FINAL DECREE OF DIVORCE OR ANNULMENT IS ENTERED, YOU MAY LOSE THE RIGHT TO CLAIM ANY OF THEM.

YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE"

(see, Pa. RCP No. 1920.12[c]; No. 1920.71, 42 Pa. CSA).

Plaintiff, after consultation with a Pennsylvania attorney, made a knowing and voluntary decision not to appear before the Court of Common Pleas. In March 1994 a default decree of divorce was awarded in favor of defendant.

Pennsylvania Law provides:

"Whenever a decree or judgment is granted which * * * absolutely terminates the bonds of matrimony, all property rights which are dependent upon the marital relation, except those which are vested rights, are terminated unless the court expressly provides otherwise in its decree. All duties, rights and claims accruing to either of the parties at any time theretofore in pursuance of the marriage shall cease, and the parties shall severally be at liberty to marry again as if they had never been married"

(23 Pa. C.S.A. § 3503). Further, under Pennsylvania case law, "[w]here * * * a final decree in divorce has been entered, * * * in the absence of fraud, the decree constitutes a final determination of the rights between the parties" (Kadel v. McMonigle, 425 Pa.Super. 253, 260-261, 624 A.2d 1059, 1063, appeal denied 539 Pa. 652, 651 A.2d 539). After the issuance of the decree, under 23 Pa. C.S.A. § 3504, either party is free to dispose as he or she wishes of property titled in that party's name, and the other party is "estopped from attacking the title to such property in collateral proceedings" (Kadel v. McMonigle, supra, 425 Pa.Super., at 261, 624 A.2d, at 1063).

Pennsylvania and New York both have provisions that permit proceedings to obtain a distribution of marital property following a foreign judgment of divorce (see, 23 Pa. C.S.A. § 3104[d]; Domestic Relations Law § 236[B][2], [5] ). Those provisions specifically authorize proceedings such as the instant one to secure distribution of marital property following a foreign judgment of divorce "as far as the Federal Constitution permits" (3B Freed, Brandes & Weidman, Law and the Family New York § 19:39, at 319 [2d ed. rev.]; see, 23 Pa. C.S.A. § 3104[d] ).

If the sister State court had jurisdiction to issue a divorce decree, the courts of this State must give the decree "the same credit, validity and effect as it has in the State which rendered it" (Farmland Dairies v. Barber, 65 N.Y.2d 51, 55, 489 N.Y.S.2d 713, 478 N.E.2d 1314, rearg. denied 65 N.Y.2d 924, 493 N.Y.S.2d 1030, 483 N.E.2d 136; see, Williams v. North Carolina, 317 U.S. 287, 293-294, 63 S.Ct. 207, 210-211, 87 L.Ed. 279).

There is no question that, had plaintiff instituted this action in Pennsylvania, it would have been dismissed (see, Kadel v. McMonigle, supra ). In Justice v. Justice (417 Pa.Super. 581, 612 A.2d 1354, appeal denied 533 Pa. 635, 621 A.2d 581), the husband filed a divorce action in which the wife was served and appeared by her attorney. The wife thereafter defaulted and a decree was entered. The court wrote: "Since [the husband's] complaint did not assert any economic claims and [the wife] failed to respond to the complaint, the entry of the decree effectively foreclosed [the wife's] ability to make a claim for economic relief arising from the marriage" (Justice v. Justice, supra, 417 Pa.Super., at 583-584, 612 A.2d, at 1356, citing former 23 P.S. § 401[j], now 23 Pa. C.S.A. § 3503).

The law essentially is no different in New York. In Boronow v. Boronow, 71 N.Y.2d 284, 525 N.Y.S.2d 179, 519 N.E.2d 1375, the parties litigated and obtained a divorce judgment. The wife's subsequent declaratory judgment action seeking one half of the marital estate, including the marital residence, was held to be barred by res judicata (Boronow v. Boronow, supra, at 290, 525 N.Y.S.2d 179, 519 N.E.2d 1375). Thus, the effect of a divorce decree in both Pennsylvania and New York is to foreclose a later action to obtain equitable distribution or other economic relief, even where no such relief was sought by either party in the original divorce action.

In Greene v. Greene, 90 A.D.2d 533, 455 N.Y.S.2d 35, the Second Department held that, where the plaintiff wife had personally appeared in a Florida action for divorce, "the Florida divorce decree is entitled to full faith and credit in New York with respect to the issue of alimony" (Greene v. Greene, supra, at 533, 455 N.Y.S.2d 35).

Plaintiff relies principally on Braunstein v. Braunstein, 114 A.D.2d 46, 497 N.Y.S.2d 58, lv. dismissed sub nom. Sorman-Braunstein v. Braunstein, 68 N.Y.2d 753, 506 N.Y.S.2d 1035, 497 N.E.2d 709 and Mahoney v. Mahoney, 131 A.D.2d 822, 517 N.Y.S.2d 184, two Second Department cases decided after Greene v. Greene, supra. Braunstein concerns a postdivorce New York proceeding for equitable distribution after a divorce decree had been entered in a...