Kindler v. Kindler

• Decision Date: 09 December 1977
• Citation: 60 A.D.2d 753,400 N.Y.S.2d 605
• Parties: Shirley M. KINDLER, Appellant, v. Roger A. KINDLER, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 605

400 N.Y.S.2d 605

60 A.D.2d 753

Shirley M. KINDLER, Appellant, v. Roger A. KINDLER, Respondent.

Supreme Court, Appellate Division, Fourth Department.

Dec. 9, 1977.

Valvo & Versace, Carmen J. Valvo, Rome, for appellant.

James P. Kehoe, Jr., Rome, for respondent.

Before MOULE, J. P., and CARDAMONE, SIMONS, HANCOCK and DENMAN, JJ.

MEMORANDUM:

Plaintiff brought this action in New York seeking enforcement of so much of an Oklahoma divorce decree as purported to grant her title to real property located in New York owned by the parties prior to the divorce as tenants by the entirety. In his answer to the complaint and his affidavit, in response to plaintiff's motion for summary judgment, defendant claimed that the Oklahoma decree could not be effective to vest title in the plaintiff, and that, therefore, plaintiff had no legal basis for compelling conveyance of the property. Defendant conceded that by virtue of the divorce decree the parties had become tenants in common and asserted that the only relief to which plaintiff was entitled was a partition of the property.

Special Term found that the Oklahoma court had had personal jurisdiction over defendant, and held that the Oklahoma decree, insofar as it purported to convey title to the real property, could not be given effect in New York. Therefore, plaintiff's motion for summary judgment was denied, and the parties were ordered to proceed to partition. Plaintiff appeals from that order and we affirm.

It is well established that "a divorce court in one state does not have the power directly to affect, by means of its decree, the title to real property situated in another state." (34 A.L.R.3d 968, citing, inter alia, Fall v. Eastin, 215 U.S. 1, 30 S.Ct. 3, 54 L.Ed. 65; Van Cortlandt v. De Graffenried, 147 App.Div. 825, 132 N.Y.S. 1107, aff'd. 204 N.Y. 667, 98 N.E. 1118; Tiedemann v. Tiedemann, 172 App.Div. 819, 158 N.Y.S. 851, affd., 225 N.Y. 709, 122 N.E. 892, rearg den. 226 N.Y. 658, 123 N.E. 891, error dsmd., 251 U.S. 536, 40 S.Ct. 56, 64 L.Ed. 402.) Accordingly, Special Term properly refused to give effect to those provisions of the decree which were intended directly to affect the New York real property.

The divorce decree, which was not ex parte but based on personal jurisdiction, severed the tenancy by the entirety of the New York real property, and created a tenancy in common. (Yax v. Yax, 240 N.Y. 590, 148 N.E. 717; Stelz v. Shreck, 128 N.Y. 263, 28 N.E. 510; Knight v. Knight, 31 A.D.2d 267, 296...