Peterson v. Goldberg

• Decision Date: 08 June 1992
• Citation: 180 A.D.2d 260,585 N.Y.S.2d 439
• Parties: , 60 USLW 2803 Harold J. PETERSON, etc., Respondent, v. Joel GOLDBERG, Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 439

585 N.Y.S.2d 439

180 A.D.2d 260, 60 USLW 2803

Harold J. PETERSON, etc., Respondent, v. Joel GOLDBERG, Appellant, et al., Defendants.

Supreme Court, Appellate Division,

Second Department.

June 8, 1992.

McCormack & Phillips, New City (Ronald A. Phillips, of counsel), for appellant.

Harold A. Seidenberg, Nyack (Toni Bracconeri, of counsel), for respondent.

Before THOMPSON, J.P., and EIBER, MILLER and RITTER, JJ.

MILLER, Justice.

The principal question to be decided on this appeal, one of first impression at the appellate level, is whether a cause of action asserted for equitable distribution abates upon the death of the party seeking such relief where an ex parte foreign divorce judgment has been granted prior to that party's death. For the reasons that follow, we hold that such a cause of action does not abate and hence, equitable distribution may be ordered. ¹

The facts underlying this appeal are not in dispute. Harriet Goldberg, the plaintiff's decedent, and the defendant Joel Goldberg, lived as husband and wife in Rockland County. There is a paucity of information contained in the record on appeal relevant to the dates of the pertinent occurrences. Nevertheless, the parties' marriage apparently deteriorated and the defendant husband left the New York house to take up residence in Florida.

In 1986 the wife commenced the instant action for a divorce and ancillary relief. In 1987, while in Florida, the husband procured an ex parte divorce judgment there, effectively terminating the parties' status as husband and wife. Thereafter, he remarried. It is uncontroverted that the Florida divorce judgment made no attempt to settle the ancillary property issues relevant to the termination of the marriage.

When the husband obtained the Florida divorce judgment, he moved in the Supreme Court, Rockland County, for summary judgment dismissing the wife's complaint. The court granted that motion to the extent of dismissing the cause of action for a divorce, but converted the action to one, inter alia, for equitable distribution following a foreign judgment of divorce pursuant to Domestic Relations Law § 236(B)(2). Thereafter, the wife died.

Following the death of his former wife and the substitution of her administrator as party plaintiff in the instant action, the defendant husband moved for reargument. He argued that the plaintiff possessed no meritorious cause of action for equitable distribution of former marital assets, contending that, upon his former wife's death, her share of the former marital residence vested in him by virtue of their tenancy by the entirety. He acknowledged that the Florida divorce judgment had terminated only the parties' status as husband and wife, and argued that a divisible divorce judgment did not affect their rights in the New York real property over which the Florida courts had no jurisdiction. Relying upon the then recently decided case of Radcliffe v. Radcliffe, 137 Misc.2d 859, 522 N.Y.S.2d 823, the defendant husband reasoned that his former wife's claim to equitable distribution had abated upon her death, and thus her estate possessed no viable cause of action therefor. The Supreme Court rejected these contentions (see, Peterson v. Goldberg, 146 Misc.2d 474, 550 N.Y.S.2d 1005) and the defendant husband now appeals. We affirm.

It is uncontroverted that the defendant husband became a domiciliary of the State of Florida, and obtained, ex parte, a Florida judgment of divorce. Clearly, the Florida judgment terminated the parties' status as husband and wife and that judgment must be accorded full faith and credit in the courts of New York (see, Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279; Elson v. Elson, 149 A.D.2d 141, 545 N.Y.S.2d 311). It is equally well settled, however, that a valid ex parte foreign divorce terminates only the marital status of the parties. Such a divorce is "divisible" in that it has no effect upon the property held by the parties outside of the jurisdiction of the state issuing the judgment (see, Vanderbilt v. Vanderbilt, 1 N.Y.2d 342, 153 N.Y.S.2d 1, 135 N.E.2d 553, aff'd, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456; Lansford v. Lansford, 96 A.D.2d 832, 834, 465 N.Y.S.2d 583; Burford v. Burford, 24 A.D.2d 491, 261 N.Y.S.2d 489; Anello v. Anello, 22 A.D.2d 694, 253 N.Y.S.2d 759; see generally, Note, Divisible Divorce 76 Harv L Rev 1233; cf., Kindler v. Kindler, 60 A.D.2d 753, 754, 400 N.Y.S.2d 605). Accordingly, to provide for the distribution of property not affected by a foreign judgment of divorce, Domestic Relations Law § 236(B)(2) and (5) provide that a divorced spouse who possesses an interest in marital property within this State may commence an action for equitable distribution of property following entry of a foreign judgment of divorce (see, Nikrooz v. Nikrooz, 167 A.D.2d 334, 561 N.Y.S.2d 301; Mahoney v. Mahoney, 131 A.D.2d 822, 517 N.Y.S.2d 184; Braunstein v. Braunstein, 114 A.D.2d 46, 497 N.Y.S.2d 58; Bennett v. Bennett, 103 A.D.2d 816, 478 N.Y.S.2d 47; cf., Elson v. Elson, supra; Mattwell v. Mattwell, 149 Misc.2d 505, 565 N.Y.S.2d 961). ² The instant action was thus properly converted to one for equitable distribution following the entry of the Florida judgment of divorce.

As noted, the husband claims that his former wife's cause of action for equitable distribution abated upon her death. We disagree. Rather, the Supreme Court correctly reasoned that unlike a cause of action for a divorce, which is personal to a party and which thus abates on that party's death, because death terminates the marital relationship (see, Cornell v. Cornell, 7 N.Y.2d 164, 196 N.Y.S.2d 98, 164 N.E.2d 395, motion to amend remittitur granted, 7 N.Y.2d 987, 199 N.Y.S.2d 493, 166 N.E.2d 502; Kenzer v. Kenzer, 144 A.D.2d 439, 534 N.Y.S.2d 878; Davis v. Davis, 75 A.D.2d 861, 427 N.Y.S.2d 891, aff'd, 52 N.Y.2d 850, 437 N.Y.S.2d 77, 418 N.E.2d 670), a cause of action for equitable distribution "following a foreign judgment of divorce" vests upon the entry of the foreign judgment (see, Domestic Relations Law § 236[B][5][a] as it would upon entry of a divorce judgment in this State. Consequently, if a party dies in possession of a vested right to equitable distribution, and that right has been asserted during the party's lifetime in an action in a court of this State, that right survives the party's death and may be asserted by the estate.

There is no rule of law which compels a finding that a cause of action for equitable distribution following a foreign divorce judgment abates upon the death of a spouse entitled to equitable distribution. In support of his argument to the contrary, the husband relies upon Matter of Schwartz, 133 Misc.2d 1064, 509 N.Y.S.2d 729, mod sub nom., Sperber v. Schwartz, 139 A.D.2d 640, 527 N.Y.S.2d 279. That case, however, is inapposite, as it merely stands for the general rule that where a party to a divorce action dies prior to the issuance of a judgment terminating the marriage, the right to equitable distribution abates. In that case, the wife died during the pendency of the divorce action, prior to the termination of the marriage. As the Surrogate aptly reasoned, the right to equitable distribution vests only upon divorce (Matter of Schwartz, 133 Misc.2d 1064, 509 N.Y.S.2d 729, supra ). This court agreed with that portion of the Surrogate's decision (Sperber v. Schwartz, 139 A.D.2d 640, 642, 527 N.Y.S.2d 279, supra ).

In the instant case, however, a foreign judgment of divorce was rendered during both parties' lifetimes. Thus, the right to equitable distribution vested at that point. That right, which is distinct from a personal right to a divorce, is one which does not abate if it could have been asserted by a decedent during his or her post-divorce lifetime (EPTL 11-3.1).

The right of the estate to seek equitable distribution following a foreign judgment of divorce is analogous to an action for partition of former marital property following the death of an ex-spouse, such as that countenanced by the court in Knight v. Knight, 31 A.D.2d 267, 296 N.Y.S.2d 1007, aff'd, 25 N.Y.2d 957, 305 N.Y.S.2d 354, 252 N.E.2d 852. In that pre-equitable distribution case, the children of the deceased wife were permitted to maintain an action for the partition of former marital property. The property, which had been owned by the spouses as tenants by the entirety, was converted into property owned by the spouses as tenants in common upon the husband's procurement of an ex parte foreign divorce and his remarriage in reliance thereupon which estopped him from contesting its validity. In Knight, the children of the deceased wife had a valid claim to the former marital property. While there is no indication in the Knight opinion that the issue of abatement was raised, it seems clear that the estate of a divorced spouse may maintain an action for equitable distribution of former marital property following a foreign judgment of divorce, just as the Knight children were permitted to seek partition of former marital property by virtue of their status as distributees of the estate of their intestate mother, whose marital status was similarly terminated during her lifetime by a valid ex parte foreign judgment of divorce.

This outcome is consistent with the rule of Van Ness v. Ransom, 215 N.Y. 557, 109 N.E. 593, that a cause of action for accrued alimony survives the wife's death and may be maintained by her estate (see also, Joffe v. Spector, 27 A.D.2d 406, 279 N.Y.S.2d 905). The rationale underlying the rule that a cause of action for accrued alimony does not abate upon the death of the payee spouse ³ is that the right to alimony is one that arises during the payee spouse's life, to take the place of the right to spousal support that existed during the marriage (Van Ness v. Ransom, supra, 215 N.Y. at 560, 109 N.E. 593). Equitable distribution, of course, lacks the presumption of dependency inherent in alimony, striving...