Radcliffe v. Radcliffe

• Decision Date: 16 December 1987
• Citation: 522 N.Y.S.2d 823,137 Misc.2d 859
• Parties: Dorothy G. RADCLIFFE, Plaintiff, v. Gerard A. RADCLIFFE, Defendant.
• Court: New York Supreme Court

Page 823

522 N.Y.S.2d 823

137 Misc.2d 859

Dorothy G. RADCLIFFE, Plaintiff, v. Gerard A. RADCLIFFE, Defendant.

Supreme Court, Suffolk County Trial Term, Part XXVII.

Dec. 16, 1987.

Christine Grobe, Stony Brook, for plaintiff.

Burke Probitsky, Brentwood, for defendant.

MEMORANDUM

MARILYNN R. FRIEDENBERG, Justice.

Plaintiff herein moves for a pre-trial order determining the respective rights of the parties to separate and marital property following an ex parte foreign divorce (DRL § 236(B)(5).

The parties herein were married on August 8, 1948. There are three emancipated issue of the marriage. The husband joined the Nassau County Police Department on May 6, 1949 and retired on August 14, 1970 selecting one of several pension options available to him. Defendant, on February 6, 1984, relocated to Florida and on February 25, 1985 instituted a divorce action thereat. Service on the plaintiff herein was effectuated by publication. Meanwhile, and on March 14, 1985, plaintiff commenced a New York divorce action by personal service on defendant in Florida. A Florida judgment of divorce was awarded to defendant herein on April 10, 1985. No ancillary issues were addressed, nor was any ancillary relief awarded pursuant thereto. Thereafter, and on November 26 1985, plaintiff herein commenced a proceeding for counsel fees, equitable distribution following foreign divorce and maintenance. Finally, during the pendency of the aforementioned New York equitable distribution proceeding, and on February 3, 1987, defendant died. Critical to the determination of this motion is a parcel of improved real property located in Centereach, New York, held by the parties as tenants by the entirety, and certain items of personal property, including possible pension and/or retirement benefits.

REAL PROPERTY

In the case of a tenancy by the entirety, the death of one of the spouses causes the interest of the surviving spouse to become absolute (Knight v. Knight, 25 N.Y.2d 957, 305 N.Y.S.2d 354, 252 N.E.2d 852 (1969), aff'g opinion below, 31 A.D.2d 267, 296 N.Y.S.2d 1007 (2nd Dep't 1969); Matter of Lyon, 233 N.Y. 208, 135 N.E. 247 (1922); Zorntlein v. Bram, 100 N.Y. 12, 2 N.E. 388 (1885); Bertles v. Nunan, 92 N.Y. 152 (1883); Rohan, New York Civil Practice-- EPTL § 6-2.1(7)(f)(iii)). However, when tenants by the entirety are divorced, their tenancy is ipso facto converted into a tenancy in common (Kahn v. Kahn, 43 N.Y.2d 203, 401 N.Y.S.2d 47, 371 N.E.2d 809 (1977); Kover v. Kover, 29 N.Y.2d 408, 328 N.Y.S.2d 641, 278 N.E.2d 886 (1972); Stelz v. Shreck, 128 N.Y. 263, 28 N.E. 510 (1891); 9A Rohan, New York Civil Practice-- EPTL § 6-2.1(7)(h)(i)). It is clear that all survivorship rights are necessarily extinguished (Hendel v. Hendel, 44 A.D.2d 532, 353 N.Y.S.2d 454 (1st Dep't 1974)). However, an exception exists when the parties were divorced by an ex parte foreign divorce decree.

Prior to Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945), New York refused to give effect to foreign divorce decrees either as to marital status or property rights (Vanderbilt v. Vanderbilt, 1 N.Y.2d 342, 153 N.Y.S.2d 1, 135 N.E.2d 553 (1953), aff'd, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456). After the Williams case, supra, such decrees were accorded full faith and credit, but only insofar as the marital status had been adjudicated. Thus, the concept of divisible divorces was born, and it was held that foreign ex parte decrees did not affect economic incidents arising out of the marital relationship (Vanderbilt v. Vanderbilt, supra, see, Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561 (1948)). Consequently, the courts in New York have held nearly uniformly that, absent conduct creating an estoppel, ex parte foreign divorce decrees do not affect ownership status of New York real property although such decrees may be valid for other purposes (Anello v. Anello, 22 A.D.2d 694, 253 N.Y.S.2d 759 (2nd Dep't 1964); Kraus v. Huelsman, 52 Misc.2d 807, 276 N.Y.S.2d 976 (Sup.Ct., Monroe Co., 1967), aff'd, 29 A.D.2d 738, 287 N.Y.S.2d 365 (4th Dep't 1968); Kolb v. Kolb, 52 Misc.2d 313, 276 N.Y.S.2d 317 (Sup.Ct., Nassau Co., 1966); Huber v. Huber, 26 Misc.2d 539, 209 N.Y.S.2d 637 (Sup.Ct., Nassau Co., 1960); see also, Kalman, Property and the Marital Home, § 26, p. 47; but see, Garcia v. Garcia, N.Y.L.J., Feb. 22, 1973, p. 20, col. 7 (Sup.Ct., Suffolk Co., DeLuca, J.)). There are situations where the subsequent acts of a defendant in a foreign divorce action in reliance of the foreign divorce judgment may cause him or her to be deemed to have accepted the divorce and the full consequences thereof as though personal jurisdiction had been obtained. Such acts, however, have usually been acts of finalty such as remarriage. In such a case, the rule that a party may not be deprived of a property right by a foreign court lacking personal jurisdiction would not apply (Albin v. Albin, 26 Misc.2d 383, 208 N.Y.S.2d 252, aff'd, 12 A.D.2d 933, 212 N.Y.S.2d 725 (2nd Dep't 1961); Topilow v. Peltz, 43 Misc.2d 947, 252 N.Y.S.2d 530, aff'd 25 A.D.2d 874, 270 N.Y.S.2d 116 (2nd Dep't 1966)). The court here holds that plaintiff's instituting the proceeding for equitable distribution following foreign divorce was not such an act as would constitute acting in reliance of the foreign divorce judgment. Not only could she have withdrawn said proceeding, but also, there is no right to equitable distribution until a decree awarding same is made (Lentz v. Lentz, 117 Misc.2d 78, 457 N.Y.S.2d 401 (Sup.Ct., Suffolk Co., 1982), mod on other grounds, 103 A.D.2d 822, 478 N.Y.S.2d 56 (2nd Dep't 1984)). Accordingly, the court holds that plaintiff is now the sole owner of the Centereach, New York real property by operation of law.

The court further holds that the above rule with respect to the effect of an ex parte divorce on New York real property has not been changed by the New York Equitable Distribution Law. While it is true that the definition of marital property has been construed to embrace property held as tenants by the entirety (Kobylack v. Kobylack, 96 A.D.2d 831, 465 N.Y.S.2d 581 (2nd Dep't 1983)), remitted for findings, 62 N.Y.2d 399, 477 N.Y.S.2d 109, 465 N.E.2d 829 (1984), on remand, 111 A.D.2d 221, 489 N.Y.S.2d 257 (2nd Dep't 1985); Jacoby v. Jacoby, N.Y.L.J., May 10, 1982, p. 18, col. 1 (Sup.Ct., Queens Co., Rodell, J.), and while certain commentators have opined that subdivision 2 of the Equitable Distribution Law (which in part provides that a matrimonial action includes a "proceeding * * *...