Huber v. Huber

• Citation: 209 N.Y.S.2d 637,26 Misc.2d 539
• Parties: Theresia HUBER, Plaintiff, v. Adolph HUBER, Defendant.
• Decision Date: 19 December 1960
• Court: United States State Supreme Court (New York)

Page 637

209 N.Y.S.2d 637

26 Misc.2d 539

Theresia HUBER, Plaintiff, v. Adolph HUBER, Defendant.

Supreme Court, Special Term, Nassau County, Part I.

Dec. 19, 1960.

William I. Niles, Farmingdale, for plaintiff.

Reilly, Young & Buckley, East Meadow, for defendant.

BERNARD S. MEYER, Justice.

In this partition action both parties move for summary judgment. The parties were married in New York in 1946. In 1959, plaintiff wife took up residence in Florida and on May 11, 1960, was granted an absolute divorce in that state. The premises sought to be partitioned were acquired by the parties during marriage and held as tenants by the entirety. The Florida decree is presumed valid, notwithstanding that neither the complaint nor plaintiff's moving papers allege that defendant was served in the Florida proceeding. Cook v. Cook, 342 U.S. 126, 72 S.Ct. 157, 96 L.Ed. 146. The rule of De France v. Oestrike, 8 A.D.2d 735, 187 N.Y.S.2d 186, does not apply since the facts with respect to the due process aspects of the validity of the Florida decree are either known to defendant or a matter of public record, and the facts concerning plaintiff's domicile appear from his papers to be known to him. It is, therefore, incumbent upon him to set forth facts creating triable issues. As to plaintiff's domicile, defendant's papers set forth no factual basis for denying its validity; as to due process, defendant swears only that he did not appear, not that he was not served, in the Florida action. His attorney's affidavit which does state (Par. 6) that the Florida divorce was obtained 'without service of process on' defendant is hearsay and insufficient to raise an issue. Notwithstanding the foregoing, plaintiff's motion must be denied. The full faith and credit clause (U.S.Const., Art. IV, Sec. 1) as implemented by 28 U.S.C. § 1738, requires only that a state give to the judgment of another state such force and effect as it has in the state in which it was rendered. Any question of jurisdiction aside, plaintiff to be successful would have to show that under Florida law the granting of a divorce converts a tenancy by the entirety into partitionable interests. No such showing is made in plaintiff's papers, and, in any event, foreign law presents a triable issue of fact preventing summary judgment. Werfel v. Zivnostenska Banka, 287 N.Y. 91, 93, 38 N.E.2d 382; Read v. Lehigh Valley R. R. Co., 284 N.Y. 435, 444, 31 N .E.2d 891, 894.

There is, however, a jurisdictional reason why plaintiff's motion must be denied and defendant's motion granted. Partition cannot be had of a tenancy by the entirety, Civil Practice Act, § 1012; Vollaro v. Vollaro, 144 App.Div. 242, 129 N.Y.S. 43. Plaintiff's complaint pivots, therefore, on the concept that the tenancy by the entirety existing in the subject parcel during marriage was terminated by the Florida divorce. That an absolute divorce severs a tenancy by the entirety and transmutes it to a tenancy in common was first declared in New York in Stelz v. Shreck, 128 N.Y. 263, 28 N.E. 510, 13 L.R.A. 325, which also rejected the argument that the entire estate vested in the husband because the divorce was for the wife's adultery. The core of the decision is contained in the following passages (128 N.Y. at pages 266-267, 28 N .E. at page 511):

'At common law, husband and wife were regarded as one person, and a conveyance to them by name was a conveyance in law to but one person. These two real individuals, by reason of this relationship, took the whole of the estate between them, and each was seized of the whole and not of any undivided portion. They were thus seized of the whole because they were legally but one person. Death separated them, and the survivor still held the whole because he or she had always been seized of the whole, and the person who died had no estate which was descendible or devisable.

'Being founded upon the marital relation and upon the legal theory of the absolute oneness of husband and wife, when that unity is broken, not by death, but by a divorce a vinculo, it stands to reason that such termination of the marriage tie must have some effect upon an estate which requires the marriage relation to support its creation.

* * *

* * * 'It would seem as if the continued existence of the estate would naturally depend upon the continued legal unity of the two persons to whom the conveyance was actually made. The survivor takes the whole in case of death, because that event has terminated the marriage, and the consequent unity of person. An absolute divorce terminates the marriage and unity of person just as completely as does death itself, only instead of one as in the case of death there are in the case of divorce two survivors of the marriage, and there are from the time of such divorce two living persons in whom the title still remains. It seems to me the logical and natural outcome from such a state of facts is that the tenancy by the entirety is severed, and a severance having taken place, each takes his or her proportionate share of the property as a tenant in common, without survivorship.'

The rule is thus predicated upon two thoughts: First, that each tenant is seized of the whole estate; second, that the interest of each in the whole is subject to termination as to the whole upon death, or as to one-half upon divorce. Defendant, therefore, had an interest in the whole of the subject property, and not in any undivided portion of it, which could be terminated only by death, divorce or consent. Hiles v. Fisher, 144 N.Y. 306, 39 N.E. 337, 30 L.R.A. 305; Finnegan v. Humes, 163 Misc. 840, 298 N.Y.S. 50, modified 252 App.Div. 385, 299 N.Y.S. 501, affirmed 277 N.Y. 682, 14 N.E.2d 389. Were plaintiff to die before defendant and before the granting of a divorce, defendant would hold the whole property because he 'had always been seized of the whole.' Defendant's right of survivorship is, therefore, a property right with which only a court having jurisdiction of the property or of defendant's person could deal.

Defendant's affidavit states that he did not appear in the Florida action and this statement is not controverted by plaintiff. Clearly, therefore, the Florida court had no jurisdiction over defendant's person. Clearly also, it had no jurisdiction over real property located in New York. Tiedemann v. Tiedemann, 172 App.Div. 819, 824, 158 N.Y.S. 851, 854, affirmed 225 N.Y. 709, 122 N.E. 892, appeal dismissed 251 U.S. 536, 40 S.Ct. 56, 64 L.Ed. 402, and see also the annotations in 51 A.L.R. 1081 and 22 A.L.R.2d 724, 730. Plaintiff argues, however, that because she had a bona fide Florida residence, the Florida court had jurisdiction over the marital res and that its valid divorce decree destroyed the status which is essential under the rule of Stelz v. Shreck, supra, to the continuation of the property right. The short answer is that neither as a matter of New York real property law nor as a matter of federal constitutional law does that result follow and that, in fact, federal constitutional law proscribes giving the Florida decree the effect thus claimed for it. Stelz v. Shreck, supra, which established the New York real property rule, dealt with a New York divorce (the Special Term opinion, reported in 25 Abb.N.C. 133, 10 N.Y.S. 790, so states). Of the other decisions in which the rule was reiterated, examination of the record in three (Yax v. Yax, 240 N.Y. 590, 148 N.E. 717 [a decision on pleadings]; Yax v. Yax, 125 Misc. 851, 213 N.Y.S. 4, affirmed 217 App.Div. 714, 215 N.Y.S. 941 [the same case after trial]; Hosford v. Hosford, 273 App.Div. 659, 80 N.Y.S.2d 306) shows that they dealt with New York divorces and this appears to have been the case also in Carpenter v. Carpenter, 130 Misc. 701, 225 N.Y.S. 426; Middleton v. Middleton, Sup., 123 N.Y.S.2d 231, n. o. r. In five others statement of the rule was obiter dictum the cases involving no divorce (Armondi v . Dunham, 221 App.Div. 679, 225 N.Y.S. 87, affirmed 248 N.Y. 603, 162 N.E. 542; obiter dictum, the cases involving 134 N.Y.S.2d 877, appeal dismissed 285 App.Div. 980, 139 N.Y.S.2d 284; Fine v. Scheinhaus, 202 Misc. 272, 109 N.Y.S.2d 307; Martos v. Martos, 206 Misc. 860, 134 N.Y.S.2d 832; Mardt v. Scharmach, 65 Misc. 124, 119 N .Y.S. 449). In only five cases (Grigoleit v. Grigoleit, 205 Misc. 904, 133 N.Y.S.2d 442; Matter of Dell's Estate, 154 Misc. 216, 276 N .Y.S. 960; Melchers v. Bertolido, 118 Misc. 196, 192 N.Y.S. 781; Tippen v. King, 187 Misc. 150, 61 N.Y.S.2d 298; Albin v. Albin, Sup., 208 N.Y.S.2d 252) were foreign divorces involved. In Grigoleit it was held without discussion that, as concerns the effect of divorce on a tenancy by the entirety, there is no distinction between a New York divorce and a valid foreign divorce. The Melchers action was brought by grantees of the party who obtained the foreign divorce who were, therefore, held estopped. Matter of Dell's Estate was a proceeding by an estate creditor for security; the tenancy by the entirety problem arose as part of an alternate argument and is dicta. In Tippen v. King, the foreign divorce obtained by the wife was followed by a New York divorce obtained by the husband; the marriage was thus terminated for all purposes. Albin v. Albin involved a Mexican divorce, granted apparently after defendant's appearance, and the construction of a written agreement between the parties concerning the property. Only Grigoleit reaches a conclusion opposed to the thesis here advanced. Neither Grigoleit nor any of the other four discussed the right of survivorship as a property right; all were decided prior to Vanderbilt v. Vanderbilt, 1 N.Y.2d 342, 153 N.Y.S.2d 1, affirmed 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456, discussed below. Support for the view that, as a matter of New York real property law, a foreign divorce obtained on constructive service does not terminate a tenancy by the entirety may be found in New York dower cases (see annotation 168 A.L.R. 793,...