O'reilly-Morshead v. O'reilly-Morshead

Citation2015 N.Y. Slip Op. 25354,19 N.Y.S.3d 689,50 Misc.3d 402
PartiesDeborah O'REILLY–MORSHEAD, Plaintiff, v. Christine O'REILLY–MORSHEAD, Defendant.
Decision Date23 October 2015
CourtUnited States State Supreme Court (New York)

50 Misc.3d 402
19 N.Y.S.3d 689
2015 N.Y. Slip Op. 25354

Deborah O'REILLY–MORSHEAD, Plaintiff,
Christine O'REILLY–MORSHEAD, Defendant.

Supreme Court, Monroe County, New York.

Oct. 23, 2015.

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Debra Crowder, Esq., Badain & Crowder, Rochester, Attorneys for Plaintiff.

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Rochester, New York, Vivian Aquilina, Esq., Legal Aid Society of Rochester, Rochester, Attorneys for Defendant.

Rochester, New York, Lisa Maslow, Esq., Rochester, Attorney for Child.



50 Misc.3d 403

“I do”—a one letter over-used personal pronoun and two-letter auxiliary verb—is uttered in many contexts. Separated, even by a comma, the two words may be all-but innocuous. When uttered as a response to a question in a certain context, the words marry a couple, not only to each other, but to a cascade of rights and responsibilities. In this matter, a couple was united in a civil union in Vermont, but lived the majority of their marriage in New York. Now, one spouse asks this Court to distribute “civil union” assets by applying the equitable distribution principles of the New York's Domestic Relations Law.

From one vantage point, this case represents an interstitial legal battle in the long running—and now largely concluded—battle over marriage equity in this nation. In the decade before the Supreme Court decision in Obergefell v. Hodges,––– U.S. ––––, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015), states (with Vermont as the first) began to enact legislation permitting civil unions, a recognition of a state-sanctioned, marriage-like, economic relationship between same sex-couples.1Many couples—including the couple in this case—visited Vermont to enter such unions, then later married

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in more marriage-friendly jurisdictions. When these couples then apply to the courts for dissolution of their marriage, the lingering question of their undissolved civil union—and whether New York recognizes property rights under the civil union—hangs over the process.

The facts here are undisputed. The parties in this action began their relationship in 2001.2In 2002, the couple moved to New York. Before moving, the defendant sold a house she owned in her own name in Indiana. In June 2003, they entered into a civil union in Vermont. At the time of their civil union, Vermont recognized such unions, and by statute, the parties acquired rights, under Vermont law, in property that they acquired thereafter. In 2004, the plaintiff purchased a home in Rochester, which she claims was purchased with her separate property. The plaintiff claims, without contradiction, that she used her own funds for the purchase, and that the defendant was not listed on

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the deed to the property. Importantly, the plaintiff's characterization of the funds used to purchase the property is the hinge on which this decision turns.3If the civil union created some form of joint property entitlement—“civil union property,” for want of a better description—then the defendant had some form of interest in both the income generated by the plaintiff after the civil union, and the subsequent purchase of the house. In 2006, the couple were married in Canada. Five years later, almost to the day, the plaintiff commenced this divorce action in New York seeking equitable distribution of the marital property. Thereafter, the defendant filed an action for divorce and a counterclaim for dissolution of the civil union.

The controversy arises because the defendant claims that this court must dissolve the civil union, and distribute any “civil union property” under Vermont law. The plaintiff rejects

50 Misc.3d 405

that claim, arguing that the defendant has only acquired rights by virtue of the marriage in Canada, and hence, this court need not dissolve the civil union. Furthermore, according to the plaintiff, the defendant has only acquired rights in “marital property,” as defined by New York's Domestic Relations Law, which exists since the date of marriage and not before. As a result, the plaintiff argues that any property, acquired by either party in their own names after the date of the civil union, and before the date of marriage, is not marital property. When, after a preliminary conference, the parties could not resolve this dispute (and the conflict of law questions), both sides moved for summary judgment.

While the essential facts are undisputed, so to is most of the underlying law. In 2000, Vermont's civil union statute granted property rights to participants in civil unions, legally equivalent to those rights extended to couples in marriage. V.S.A. § 1204(d) (laws of domestic relations ... including property division ... shall apply to parties to a civil union). The statute provided that the civil union bond could be dissolved by Vermont's courts. Importantly, the preamble to the civil union statute expressly stated that “a system of civil unions does not bestow the status of civil marriage ...” Vt. Stat. H. 847, Legislative Findings, § 1(10) (2000). Vermont eventually interpreted this provision as extending to same-sex couples, the same rights and responsibilities as opposite-sex couples regarding child rearing. Miller–Jenkins v. Miller–Jenkins,189 Vt. 518, 12 A.3d 768 (2010). In 2003, the couple before this court acquired, under Vermont law, “the same benefits, protections and responsibilities” as granted to parties to a civil marriage. Id.at 777. However, in 2003, the laws of Vermont did not recognize the parties' civil union as a marriage. Thus, at the time this couple entered the civil union, Vermont did not recognize that union as a marriage. Vermont later passed a Marriage Equality Act which afforded legal status to same-sex marriages, and which also included within the definition of marriage “legally recognized unions of two people.” Pursuant to the Vermont statute, marriages and civil unions—after the MEA—are equivalent unions and can be dissolved by the Vermont courts. The Vermont Supreme Court has intoned that even if joined in a civil union, the property subject to distribution is referred to as the

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“marital estate.”

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DeLeonardis v. Page,188 Vt. 94, 998 A.2d 1072, 1076 n. 1 (2010). Based on these now-fully-evolved statutory principles, the defendant argues that this court should treat the 2003 civil union as the equivalent of marriage in New York—as she claims Vermont now would—and treat any property, acquired by either participant, as “marital property” from the date of the civil union. In essence, the defendant argues that the state in which the ceremony occurs defines the date of “union” and because Vermont declared the civil union in this case to be a marriage—albeit after the couple entered into the civil union—New York must treat the civil union as the date when “marital property” (under New York's Domestic Relations Law) exists.

Before jumping into the heart of this debate, this court dispenses with the question of whether it has jurisdiction to dissolve the civil union. New York courts have recognized general equity jurisdiction to dissolve Vermont civil unions. In Dickerson v. Thompson,88 A.D.3d 121, 928 N.Y.S.2d 97 (3rd Dept.2011), the appeals court held that trial courts could dissolve civil unions under a trial court's general equity jurisdiction. But, while authorizing this court to dissolve the union, the appeals court did not provide any guidance on what tools to invoke in deciding distribution of property acquired during the course of the civil union. Id.at 124, n. 2, 928 N.Y.S.2d 97(property distribution was uncontested in Dickerson v. Thompson). The Appellate Division cited a series of cases in which supreme court justices had dissolved civil unions. Id.at n. 4, 928 N.Y.S.2d 97. In this case, the defendant specifically requests that relief. Under these circumstances, this court does have jurisdiction to dissolve this civil union, but that does not solve the property distribution dilemma. The court must decide whether it can distribute “civil union property” that is outside the scope of “marital property” as defined in the Domestic Relations Law. The mere fact that this court has the power to dissolve the civil union does not dictate that it must apply New York's statutory rules to relief under the dissolution. In that respect, it is important to note that other New York courts have concluded that a civil union is the not the equivalent of a marriage in New York. In Matter of Langan v. State Farm Fire & Cas.,48 A.D.3d 76, 849 N.Y.S.2d 105 (3rd Dept.2007)and Langan v. St. Vincent's Hosp. of N.Y.,25 A.D.3d 90, 802 N.Y.S.2d 476 (2nd Dept.2005), the Second and Third Departments noted that the parties had not married and therefore, the surviving partner was not a “surviving spouse” for purposes of the application of New York's workers compensation laws. The Third Department

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declined to apply comity and extend New York's system of benefits to the civil union partner:

While parties to a civil union may be spouses, and even legal spouses, in Vermont, New

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