T.T. v. K.A., 2008 NY Slip Op 51213(U) (N.Y. Sup. Ct. 6/18/2008), xx08.

• Citation: 2008 NY Slip Op 51213
• Decision Date: 18 June 2008
• Docket Number: xx08.
• Parties: T.T., Plaintiff v. K.A., Defendant.
• Court: United States State Supreme Court (New York)

Page 1

2008 NY Slip Op 51213(U)

T.T., Plaintiff v. K.A., Defendant.

xx08.

Supreme Court of the State of New York, Nassau County.

Decided June 18, 2008.

ANTHONY J. FALANGA, J.

This is a motion by the plaintiff (hereafter wife) for omnibus pendente lite relief. The defendant (hereafter husband) cross moves for an order pursuant to CPLR 3211(1) and (7) dismissing the complaint.

The parties were married in what is referred to as a "customary marriage" in Ghana on April 20, 1977. Neither party has alleged that said marriage was ever registered, licensed or otherwise officially validated by any civil authority of the Republic of Ghana. There are two emancipated children of the marriage. The Court gleans, from documents submitted by the husband, that a "customary marriage" is "customarily dissolved" when the wife's family returns the "customary drinks which originally sealed the marriage" to the head of the husband's family. In addition, said Act apparently authorizes the male heads of the husband's and wife's families to jointly petition the court in Ghana for an order confirming the validity of the "customary divorce" and the freedom of the former spouses to remarry.According to a document signed by the Deputy Consul-General of the Republic of Ghana stationed in New York, "customary divorces," performed in conformity with section 41(2) of the Matrimonial Causes Act (Act. 367 of 1971) may be civilly confirmed by an order granted by a competent Registrar.

An order issued on August 28, 1997 by the Circuit Court of Ghana, sets forth that on August 27, 1997, J. A. (the husband's uncle) and K. F. (the wife's father) filed a joint petition in support of an ex-parte motion seeking confirmation of the customary dissolution of the parties' "customary marriage". Upon hearing J.K. Yeboah, Esquire, counsel for the applicants, the Circuit Court confirmed that the "customary marriage" of the parties' had been customarily dissolved on July 1, 1994; that the "customary divorce" was recognized under the laws of Ghana; and that both parties had been free to remarry since July 1, 1994. The document signed by the Deputy Counsel-General affirms that the order issued by the Circuit Court dissolved the parties' marriage in accordance with the applicable laws of Ghana.

On March 23, 1999, the husband "customarily remarried" in Ghana. Said marriage was "customarily dissolved" on August 21, 2001. A dissolution order was granted on January 14, 2002. On December 28, 2003, the husband "customarily married" his third wife in Ghana. Said marriage was "customarily dissolved" on November 17, 2006. A dissolution order was granted on January 17, 2007.

In or about 2004, the husband's "second wife" commenced a divorce action in Suffolk County, New York. Said action was dismissed on consent after the Court upheld the validity of the divorce granted in Ghana.

The husband alleges that the wife herein had knowledge of his aforesaid second and third marriages and divorces. His tax return for the year 1998 indicates that he was not married. His tax returns for 1999 and 2000 indicate he was married to his second wife, D. A. His 2002, 2003 and 2004 tax returns indicate that he was single. His 2005 tax return indicates that he was married to his third wife, J. Z. His 2006 and 2007 returns indicate that he was single. The husband further states that the wife was not covered under his health insurance after 1998, and he has not listed her as his wife on an employment or other official document since that year. He points out that although he transferred title to the premises located in Uniondale in June 2007, to himself and the wife to obtain a mortgage, the deed does not convey a tenancy in the entirety to them as husband and wife.

In opposing the husband's motion to dismiss, the wife alleges the following: she and the parties' two sons came from Ghana to New York to join the husband in 1995; she was never aware that their marriage had been dissolved by court order; neither she nor the husband were residents of Ghana at the time the divorce order was granted.

The wife's attorney asserts that the Ghana divorce order is not entitled to full faith and credit on the ground that the wife was not served with any process and did not have notice of the commencement of an action for divorce. Counsel also points out that neither party has resided in Ghana for the past twenty years (the Court notes the wife's affidavit states she came to the United States in 1995, thirteen years ago). The wife's affidavit concedes that she and the husband have had an "off and on relationship." She advises the Court that the husband excluded her from the residence in Uniondale after she served him with the summons and complaint in this action.

The husband's attorney contends that New York must accord full faith and credit to the divorce order in issue on the ground that same was obtained in full compliance with the laws of Ghana.

The law is well settled that the validity of a marriage is determined by application of the laws of the country where the marriage was undertaken (see e.g., RM v. Dr. R, 14 Misc 2d 1222(A); see also, Amsellem v. Amsellem, 189 Misc 2d 27 [upholding religious ceremony conducted in France]; Matter of Estate of Huyot, 169 Misc 2d 805 [holding claimant was a concubine and not a wife according to French law]; Singh v. Singh, 67 Misc 2d 878 [invalidating an arranged marriage in India]; In re White, 129 Misc 835 [upholding customary Canadian marriage]; Xiong ex rel Edmondson v. Xiong, 255 Wisc2d 693, 648 NW2d 900 [upholding marriage in Laos]; Farah v. Farah, 16 Va App 329, 429 SE2d 626 [invalidating Muslim marriage ceremony conducted in England]).

There is also precedent holding that the validity of a divorce granted in a foreign country must be tested by applying the laws of that country (see, Matter of Estate of Dominguez, 2002 WL 31844696 [denying full faith and credit to a Dominican Republic divorce].

In the case at bar, neither party contests that the applicable laws of Ghana recognize their "customary marriage". The wife does not deny that the same laws recognize "customary divorce" and provide a procedure whereby certain relatives of spouses, divorced through customary practice, may jointly petition a court in Ghana for an order confirming the validity of the "customary divorce."

The wife does not dispute the accuracy or veracity of the documents that state that her father joined in an application with the husband's uncle on August 27, 1997 seeking confirmation of the validity of the "customary divorce" ritual performed on July 1, 1994. Rather, she contends that this Court should not accord comity to said confirming order on the ground that it was obtained without her consent, without notice to her, and without personal jurisdiction over her in contravention of the due process public policies of this State. The wife asserts that neither she nor the husband were residents of Ghana in 1997. She contends that absent residency, notice, and personal jurisdiction, this Court should not accord comity to the confirming order. (The Court notes that neither the wife nor her attorney specifically address the issue of according comity to the "customary divorce" ritual).

The husband states that the wife had knowledge of his second and third marriages, but he does not set forth affirmatively that the wife had prior notice of either the "customary divorce" or the motion seeking a confirming order. In fact, neither the husband nor his attorney address the issues of jurisdiction or prior notice. The husband's attorney states only that this Court should accord comity to the confirming order on the ground it is facially valid and was obtained in conformance with the laws of Ghana.

There are a plethora of cases setting forth the application of the principle of comity as it relates to divorce decrees granted by a foreign country.

"It is well settled that (a)lthough not required to do so, the courts of this State generally will accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by courts to judgments of our sister States' (Greshler v. Greshler, 51 NY2d 368, 376). However, in order for a divorce decree of a foreign court to be accorded recognition in this State, the foreign court must have had in personam jurisdiction over both spouses (see, Greshler v. Greshler, supra, at 376)" (Aranoff v. Aranoff, 226 AD2d 657). A divorce granted by a foreign country will also be accorded comity by the State of New York where the jurisdiction of the foreign tribunal was predicated upon the consent of both parties and residency, rather than domicile, was established by a statutory "brief contact" through the appearance of one of the parties (Scheinkman, Practice Commentaries, 9A Part 1 West's McKinney's Forms MFL, 7:03 [2003]; see, Greshler v. Greshler, supra; Rosenstiel v. Rosenstiel, 16 NY2d 64, cert. den. 384 US 971; Rosenbaum v. Rosenbaum, 309 NY 371; Caldwell v. Caldwell, 298 NY 146; Matter of Estate of Lovick, 201 AD2d 736; Rabini v. Rabini, 178 Ad2d 637; Matter of Brown, 132 Misc 2d 811).

A foreign divorce decree obtained on the ex parte petition of a spouse will not be recognized in New York, where the other spouse did not appear and was not served with process in the foreign action (see, Matter of Gotlib v. Ratsutsky, 83 NY2d 696; Farag v. Farag, 4 AD3d 502; Alfaro v. Alfaro, 5 AD2d 770, aff'd 7 NY2d 949; Steffens v. Steffens, 238 AD2d 404; Tal v. Tal, 158 Misc 2d 703).

Under certain circumstances, a court of this State, in its discretion, may accord comity to a divorce decree granted by a foreign country for the limited purpose of recognizing the termination of the parties' marriage, however said court may exercise jurisdiction to determine financial issues ancillary to said foreign divorce pursuant to the laws of this State (DRL 236B; see, e.g., Nikrooz v. Nikrooz, 167...