Mattwell v. Mattwell

• Decision Date: 19 December 1990
• Parties: Mitchael O. MATTWELL, Petitioner, v. Jane G. MATTWELL, Respondent. /IAS, Part 22
• Court: New York Supreme Court

Page 961

565 N.Y.S.2d 961

149 Misc.2d 505

Mitchael O. MATTWELL, Petitioner, v. Jane G. MATTWELL, Respondent.

Supreme Court, Nassau County,

Trial/IAS, Part 22.

Dec. 19, 1990.

Barton Resnicoff, Great Neck, for Jane G. Mattwell.

Herbert Rubinfeld, Jericho, for Mitchael O. Mattwell.

RALPH YACHNIN, Justice.

Ordered that this special proceeding brought by Petitioner Ex-Husband ("Husband"), by Order to Show Cause ("OTSC"), dated August 3, 1990, and Petition, for a judgment directing that equitable distribution of the parties' marital property be made following the parties' foreign divorce, and the cross-motion, by Respondent Ex-Wife ("Wife"), by Notice of Cross-Motion, dated August 22, 1990, for an order dismissing the Petitioner's Order to Show Cause and Petition, and if the application herein is not granted, giving the Wife leave to assert an answer to the Petition, are both disposed of as follows:

The Relevant Facts:

The Husband and Wife were married to each other 39 years ago on March 26, 1951, in the State of New York. All the children are emancipated. The Husband obtained an ex parte judgment of divorce from the Wife in the State of Florida on July 16, 1990, on the ground that the "marriage is irretrievably broken". It appears that no economic issues were resolved by the Florida court as part of the divorce. There is no issue as to the validity of the Florida divorce. The Wife was never a Florida resident and did not appear in the Florida divorce proceeding. She has not ratified the divorce by remarriage or otherwise. The Wife is a New York State resident. The Husband now comes before this Court asking for equitable distribution of marital property.

The Parties' Contentions: The Husband maintains that his proceeding is specifically authorized under Sections 236(B)(2) and (B)(5)(a) of the Domestic Relations Law.

DRL 236(B)(2), insofar as relevant here, states as follows:

"..., the provisions of this part shall be applicable 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."

DRL 236(B)(5) provides, in pertinent part, as follows:

"Disposition of property in certain matrimonial actions. a. Except where the parties have provided in an agreement for the disposition of their property pursuant to subdivision three of this part, the court, in an action wherein all or part of the relief granted is divorce, or the dissolution, annulment or declaration of the nullity of a marriage, and in proceedings to obtain a distribution of marital property following a foreign judgment of divorce, shall determine the respective rights of the parties in their separate or marital property, and shall provide for the disposition thereof in the final judgment."

The Wife maintains that:

"Based upon [the facts, including the fact that I have done nothing to ratify the Florida divorce decree and do not intend to in the future], it is respectfully submitted that this Court does not have the jurisdiction to effect [sic] my property rights in the marital residence owned as tenants by the entirety or any personal property. It is further submitted that to act otherwise would deprive me of property rights without due process under the New York State and United States Constitution." (Wife's Aff., 8/22/90, p. 7)

The Wife contends that "... the principle of divisible divorce precludes the [Husband] from requesting ..." equitable distribution in New York. A divorce has been considered to be "divisible" when a court in one state grants an ex parte divorce which cannot automatically affect the non-appearing spouse's economic rights. They are left to be determined by the court of another state. (Radcliffe v. Radcliffe, ... [137 Misc.2d 859, 522 N.Y.S.2d 823 (1987) (Friedenberg, J.) ].) ¹

"It is well established that when only one spouse is a bona fide resident of a state granting a divorce decree, the divorce is divisible. The decree must be given full faith and credit in all other states as far as termination of the marriage is concerned (Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 [1942]; Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 [1945], supra). However, when the state has no personal jurisdiction over the other spouse, the decree insofar as it affects the spouse's economic or property rights, becomes ineffectual (Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456 [1957]; Estin v. Estin [334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561 (1948) ], supra). Thus, in the case at bar, the decree of the South Carolina court should be given full faith and credit insofar as it terminated the marriage but the wife's economic and property rights should be determined in New York." (Lansford v. Lansford, 96 A.D.2d 832, 834, 465 N.Y.S.2d 583, 586 [2nd Dept., 1983].

In this case the Wife is maintaining that while the Husband had the right to obtain the foreign divorce, this Court is without power, based on the divorce, to equitably distribute the parties' marital property. In essence, she says the economic aspects of the parties "marital partnership" must be left in limbo--until she decides otherwise.

The Law and the Determination :

The clear wording of the afore-quoted sections of the Domestic Relations Law leaves no doubt that regardless of whether the parties were divorced in a foreign jurisdiction as a result of an ex parte divorce or a bilateral divorce, this Court can adjudicate the rights of the parties in their marital property.

This Court notes that it has found no New York case which specifically so holds, thereby making this Court's determination one of first impression. The cases cited by the Husband, namely, Mahoney v. Mahoney, 131 A.D.2d 822, 517 N.Y.S.2d 184 (2nd Dept., 1987) and Braunstein v. Braunstein, 114 A.D.2d 46, 497 N.Y.S.2d 58 (2nd Dept., 1985), lv. dism., 68 N.Y.2d 753, 506 N.Y.S.2d 1035, 497 N.E.2d 709 (1986), are not dispositive of the issue raised as both of these cases involved bilateral divorces--both parties appeared in the foreign jurisdiction. The present case involves an ex...