Stancil v. Stancil

• Decision Date: 17 February 2015
• Citation: 47 Misc.3d 873,1 N.Y.S.3d 917
• Parties: Melita STANCIL, Plaintiff, v. Jimmy STANCIL, Defendant.
• Court: New York Supreme Court

47 Misc.3d 873

1 N.Y.S.3d 917

Melita STANCIL, Plaintiff,

v.Jimmy STANCIL, Defendant.

Supreme Court, New York County, New York.

Feb. 17, 2015.

Amatullah K. Booth, Esq., New York, for the Plaintiff.

Jimmy Stancil, Chesapeake, VA, Pro Se Defendant.

MATTHEW F. COOPER, J.

New York, like all other states, has residency requirements for parties seeking to commence a divorce. These requirements exist to ensure that plaintiffs cannot simply choose the state with the most beneficial laws, move to that state and immediately file suit. Specifically, New York mandates that either the plaintiff or the defendant in a matrimonial action live in this state continuously for two years, or continuously for one year if certain other conditions are present. One such condition is if "the cause occurred in the state."

The threshold question before this court, raised in the defendant-husband's opposition to the plaintiff-wife's motion for pendente lite relief, is whether New York's recently enacted no-fault divorce statute creates a "cause" that would reduce a party's residency requirement from two years to one. Defendant, a resident of Virginia, objects to the divorce being heard in New York when plaintiff only lived here for 14 months prior to its commencement. Plaintiff asserts that the case can proceed here because the ground upon which she seeks the divorce—the irretrievable breakdown of the marriage—is a "cause [that] occurred in the state."

Facts

The parties were married in 1998 in Norfolk, Virginia. Shortly thereafter defendant, who was a member of the United States Navy, was deployed for six months. They then moved to Florida for two years, during which time plaintiff gave birth to the parties' only child. In 2001, defendant was deployed to Japan, and plaintiff and the child relocated to South Carolina, where plaintiff's family resides. Defendant returned to the United States in 2003 and was stationed in Norfolk, Virginia. Plaintiff contends she wanted to move to Virginia to live with defendant, but defendant refused to help her relocate, stating he needed to focus on his career and that plaintiff should focus on her education.

In 2006, plaintiff enrolled in a graduate program at the University of South Carolina. That year, with defendant still stationed in Virginia, the parties jointly purchased a home in Columbia, South Carolina. During this period, plaintiff alleges that the parties visited one another in Virginia and South Carolina, or would meet in North Carolina.

Defendant retired from the Navy in 2010. While he continued to visit plaintiff in South Carolina, he maintained his home in Virginia. Plaintiff's papers describe a two month period in late 2010 when defendant stayed with plaintiff in South Carolina, but after a dispute, defendant stayed with plaintiff's parents for another two months. In January 2011, defendant returned to Virginia and began a new job in the Norfolk Sheriff's Department.

In February 2013, plaintiff, who was still in graduate school studying clinical psychology, accepted an internship at St. Luke's Roosevelt Hospital in New York. She moved to New York with the child in June 2013, having rented out the South Carolina residence. It does not appear that defendant has ever visited plaintiff or the child in New York.

In August 2014, 14 months after moving to New York, plaintiff commenced this action using New York's no-fault divorce ground. Thereafter, plaintiff brought an Order to Show Cause for temporary custody, child support and maintenance. In his opposition, defendant, who is self-represented and travels by bus from Virginia for court appearances, claims that the parties cannot divorce in New York because they do not meet New York's residency requirement.

Discussion

Enacted in 1966 as part of New York's Divorce Reform Act, durational residency requirements were established "to preclude the use of our courts in matrimonial proceedings by spouses with no real ties with New York, who would flock here for the sole purpose of obtaining matrimonial relief unavailable in States that had substantial interests in the marital relationship" ( Unanue v. Unanue, 141 A.D.2d 31, 41, 532 N.Y.S.2d 769 [1st Dept.1988] ). Domestic Relations Law ("DRL") § 230 sets forth the State's residency requirements as follows:

An action ... for divorce or separation may be maintained only when:

1. The parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or

2. The parties have resided in this state as husband and wife and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or

3. The cause occurred in the state and either party has been a resident thereof for a continuous period of at least one year immediately preceding the commencement of the action, or

4. The cause occurred in the state and both parties are residents thereof at the time of the commencement of the action, or

5. Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action.

Plaintiff claims to satisfy the residency requirement in subsection three; she does not argue that any other subsection is applicable.

In 2010, New York adopted no-fault divorce by adding a ground to the existing six, four of which are fault-based—cruel and inhuman treatment, abandonment for a period of one year or more, adultery, incarceration of defendant for a period of three years or more—and two of which require waiting periods—separation for one year pursuant to judgment and agreement—to which both parties must agree ( DRL § 170[1]-[6] ). The no-fault provision allows for a divorce action to be maintained when "[t]he relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath" ( DRL § 170[7] ).

Plaintiff contends that pursuant to New York's no-fault divorce provision the parties' marriage has been irretrievably broken for a period of six months or more and that the "breakdown" occurred in New York, thereby meeting the requirements of DRL § 230(3). Thus, this court is presented—in a case of first impression—with a difficult question: did the legislature intend DRL § 170(7) to amount to a "cause" for the purpose of the residency requirement set forth in DRL § 230(3) ?

The legislature's primary concern in enacting no-fault divorce was to "provide estranged couples a simple and incontestable basis for ending their marriage, and avoid the squabbling over issues that flow from the other objective grounds in DRL § 170" ( Palermo v. Palermo, 35 Misc.3d 1211[A], at *4, 2011 WL 7711557 [Sup.Ct., Monroe County 2011] ). Unfortunately, perhaps in its eagerness to provide relief to divorcing New Yorkers, the legislature did not comprehensively consider how this new provision would interact with other language in the DRL. For instance, courts were subsequently called upon to resolve the contradiction between DRL § 170(7), providing that a sworn statement of plaintiff sufficed to resolve the issue of grounds, with DRL § 173, which confers a right to trial in divorce actions (see e.g. Trbovich v. Trbovich, 122 A.D.3d 1381, 997 N.Y.S.2d 855 [4th Dept.2014], Hoffer–Adou v. Adou, 121 A.D.3d 618, 997 N.Y.S.2d 7 [1st Dept.2014], Alvarado v. Alvarado, 45 Misc.3d 412, 992 N.Y.S.2d 852 [Sup.Ct., Richmond County 2014], Filstein v. Bromberg, 36 Misc.3d 404, 944 N.Y.S.2d 692 [Sup.Ct., New York County 2012], Townes v. Coker, 35 Misc.3d 543, 943 N.Y.S.2d 823 [Sup.Ct., Nassau County 2012], Palermo, 35 Misc.3d 1211[A], 2011 WL 7711557, Schiffer v. Schiffer, 33 Misc.3d 795, 930 N.Y.S.2d 827 [Sup.Ct., Dutchess County 2011], A.C. v. D.R., 32 Misc.3d 293, 927 N.Y.S.2d 496 [Sup.Ct., Nassau County 2011] ). While different courts have come to different conclusions, the majority, consistent with the legislature's intent, have determined that the no-fault provision obviated the need for grounds trials. In Palermo, for example, the Supreme Court of Monroe County, after a lengthy and thorough review of legislative history, a comparison of other states' no-fault divorce statutes, and an analysis of case law, found that the legislature's silence on the issue of no-fault grounds trials meant it did not intend to allow them, stating,

If the New York legislature intended to have hearings and trials regarding the veracity of a sworn statement indicating that a marriage is irretrievably broken, it would have followed the countless examples of other states and included the hearing requirement in its legislative mandate. It chose not to do so, and this court will not, under the guise of statutory construction, amend or overrule the legislature's efforts. To do so would thwart DRL § 170(7)'s purpose.

( 35 Misc.3d at * 14, 942 N.Y.S.2d 310 ).

Similarly, courts were compelled to clarify the inconsistency between DRL § 170(7) and CPLR 3016(c), which requires that "[i]n an action for separation or divorce, the nature and circumstances of a party's alleged misconduct, if any, and the time and place of each act complained of, if any, shall be specified in the complaint" (see e.g. Tuper v. Tuper, 98 A.D.3d 55, 946 N.Y.S.2d 719 [4th Dept.2012], Vahey v. Vahey, 35 Misc.3d 691, 940 N.Y.S.2d 824 [Sup.Ct., Nassau County 2012], Strack v. Strack, 31 Misc.3d 258, 916 N.Y.S.2d 759 [Sup.Ct., Essex County 2011] ). And similar to the majority of courts on the issue of grounds trials, all of these courts held that extensive pleadings were not required in cases brought pursuant to DRL § 170(7) ( Tuper, 98 A.D.3d at 57, 946 N.Y.S.2d 719 ["Because a cause of action for divorce under Domestic Relations Law § 170(7) does not require a showing of any misconduct' by either party, the requirements of CPLR 3016(c) are inapplicable"] ).

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