Unanue v. Unanue

• Decision Date: 26 September 1988
• Citation: 141 A.D.2d 31,532 N.Y.S.2d 769
• Parties: Diana UNANUE, Appellant, v. Richard UNANUE, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 769

532 N.Y.S.2d 769

141 A.D.2d 31

Diana UNANUE, Appellant, v. Richard UNANUE, Respondent.

Supreme Court, Appellate Division Second Department.

Sept. 26, 1988.

Bender, Bodnar & Frucco, White Plains (Harvey G. Landau and Sylvia Fabriani, of counsel), for appellant.

William S. Beslow, New York City, for respondent.

Before MANGANO, J.P., and LAWRENCE, WEINSTEIN and RUBIN, JJ.

RUBIN, Justice.

The instant appeal presents this court with the opportunity to clarify the durational residence requirements set forth in Domestic Relations Law § 230.

I

The plaintiff and the defendant were married in Illinois in 1966. After residing in Illinois, New York and England, the parties returned to New York in 1976. It is undisputed that the parties resided as husband and wife in Scarsdale, New York, for a 10-year period from 1976 until September of 1986. In September 1986 the parties sold their marital residence in Scarsdale because the defendant wanted to use the equity in the house to raise money for a financial venture. When the parties were unable to locate another house in Scarsdale, to either rent or purchase, they rented a house in Connecticut until January 4, 1987. During this interim period, the plaintiff's continuing search for a house in Scarsdale proved successful and on November 19, 1986, the parties executed a contract for the purchase of a house in Scarsdale. However, on December 11, 1986, the defendant left the plaintiff and their children and temporarily moved to Bogota, Colombia. In a handwritten note, the defendant explained that his departure was attributable to a fruitless attempt over the past five years to reconcile the parties' marital difficulties. Thereafter, the plaintiff closed title to the house the parties had contracted to purchase in Scarsdale, in her own name, and moved into the premises with her children on January 5, 1987. During the approximately 3 1/3 month period when the parties temporarily dwelled in Connecticut, their son continued to attend Scarsdale High School and their daughter was enrolled in the Dobbs Ferry Master's School. Both the plaintiff and the defendant maintained their New York bank accounts, driver licenses and voter registrations.

On January 30, 1987, the plaintiff commenced the instant action for divorce and ancillary relief by serving process on the defendant in Bogota, Colombia. Thereafter, the plaintiff moved, inter alia, for temporary restraining orders and pendente lite relief. The defendant cross moved to dismiss the action on the grounds of noncompliance with the residence requirements of Domestic Relations Law § 230 and the existence of a prior pending divorce action between the parties. Since the plaintiff and the defendant dwelled in Connecticut between September 26, 1986, and January 5, 1987, and neither maintained a residence in New York during that period, the Supreme Court granted the defendant's cross motion to dismiss upon finding that neither party fulfilled the residence requirements of Domestic Relations Law § 230(5). In view of the dismissal of the plaintiff's action for divorce, the court denied her respective applications. We disagree with the Supreme Court's interpretation of Domestic Relations Law § 230 and find the residency requirement of subdivision (2) has been satisfied.

II

Domestic Relations Law § 230 provides that an action for divorce 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".

The durational residence requirements imposed by Domestic Relations Law § 230 are in addition to the constitutional and statutory mandates that the court have a proper basis for exercising in rem jurisdiction to adjudicate the question of marital status (see, CPLR 314[1] ) and personal jurisdiction to adjudicate the economic rights of domiciliary and nondomiciliary spouses (see, CPLR 301, 302[b]; see generally, Scheinkman, Practice Commentary, McKinney's Cons Laws of NY, Book 14, Domestic Relations Law C230:1, at 24). The durational residence requirements imposed by Domestic Relations Law § 230 were enacted as part of the 1966 Divorce Reform Act, which liberalized the grounds for divorce. These requirements were evidently added to prevent the courts of this State from becoming "divorce mills" ( see, Lacks v. Lacks, 41 N.Y.2d 71, 74, 390 N.Y.S.2d 875, 359 N.E.2d 384, rearg. denied 41 N.Y.2d 901, 393 N.Y.S.2d 1028, 362 N.E.2d 640). Concerned that spouses with no real connection to New York would flock here for the sole purpose of obtaining marital relief unavailable in the states that had substantial interests in the marital relationship, the Legislature imposed the durational residence requirements to deter such conduct and to " 'ensure against use of our courts in matrimonial proceedings by outsiders' " (11 Zett-Edmonds-Schwarz, NY Civ Prac § 3.08, at 3-25, quoting from 1966 Report of Joint Legislative Comm. on Matrimonial and Family Law, Leg.Doc. No. 8, at 103, 104 [1966]; see also, Scheinkman, Practice Commentary, McKinney's Cons Laws of NY, Book 14, Domestic Relations Law C230:1, at 24). The durational residency requirements are not a limitation upon the subject matter jurisdiction of the Supreme Court, but are merely "substantive elements" of the matrimonial cause of action, which the plaintiff must allege and prove ( see, Lacks v. Lacks, supra, 41 N.Y.2d at 77, 390 N.Y.S.2d 875, 359 N.E.2d 385).

The greater weight of authority construes the term "residence" as used in Domestic Relations Law § 230 to be synonymous with the term "domicile", so that the durational residency requirements are not satisfied by the mere bodily presence of parties within the State, no matter for how long a period ( see, Silvers v. Silvers, 57 A.D.2d 948, 395 N.Y.S.2d 95; Lacks v. Lacks, 50 A.D.2d 785, 378 N.Y.S.2d 61, affd. 41 N.Y.2d 71, 390 N.Y.S.2d 875, 359 N.E.2d 384, supra; Pierce v. Pierce, 50 A.D.2d 867, 376 N.Y.S.2d 624; Usher v. Usher, 41 A.D.2d 368, 343 N.Y.S.2d 212; Geiser v. Geiser, 102 Misc.2d 862, 424 N.Y.S.2d 852; Werner v. Werner, 101 Misc.2d 414, 423 N.Y.S.2d 780; Delvaille v. Delvaille, 87 Misc.2d 726, 386 N.Y.S.2d 195; Cocron v. Cocron, 84 Misc.2d 335, 375 N.Y.S.2d 797; see also, Clapp v. Clapp, 272 App.Div. 378, 71 N.Y.S.2d 354 [construing Civ Prac Act § 1147, a prior statutory provision regarding residency requirements for maintenance of divorce action]; contra, Capdevilla v. Capdevilla, --- N.Y.S.2d ---- [NYLJ, Mar. 25, 1988, at 13, col 2]; Small v. Small, 96 Misc 2d 469, 473, 409 N.Y.S.2d 379; Langlais v. Langlais, 90 Misc.2d 29, 393 N.Y.S.2d 292). Ordinarily, to constitute a domicile of choice, there must be physical presence and the requisite intention to make the locality one's fixed and permanent home (see discussion in 1 Foster-Freed-Brandes, Law and the Family in New York, § 5:11 [2d ed] ).

It is noteworthy that the bulk of cases which hold that the durational residency requirements may only be fulfilled by proof that a party was continuously domiciled in New York for the applicable duration of time specified in Domestic Relations Law § 230 were decided prior to the 1976 amendments to Domestic Relations Law §§ 61 and 231, which eliminated the preferential rights accorded the husband by common law in the selection of a domicile.

Under the common law, a woman upon marriage was deemed, by operation of the law, to take the domicile of her husband. The husband had the right to select the place of abode of the family and it was the duty of the wife to abide by the husband's decision unless it was unsafe or imprudent for her to do so. Thus, the legal domicile of the wife was prima facie that of her husband (see, Matter of Daggett, 255 N.Y. 243, 246-247, 174 N.E. 641; Usher v. Usher, 41 A.D.2d 368, 343 N.Y.S.2d 212) and unless there was justification or excuse for leaving her husband, a married woman could not acquire a separate domicile whenever she so elected (Matter of Daggett, supra, 255 N.Y. at 246-247, 174 N.E. 641; Gray v. Gray, 143 N.Y. 354, 359, 38 N.E. 301; Hunt v. Hunt, 72 N.Y. 217, 242-243). Prior to the 1976 amendments, former Domestic Relations Law § 231 provided that "if a married woman dwells within the state when she commences an action against her husband for divorce, annulment or separation, she is deemed a resident thereof, although her husband resides elsewhere." Former Domestic Relations Law § 231 and its predecessor statute (see, Civ Prac Act § 1166) were initially enacted to modify the common-law rule that the legal domicile of the wife is prima facie that of her husband and to prevent a husband from avoiding an action for divorce commenced by the wife in New York by residing outside the State and claiming under the common-law rule that the wife was not a domiciliary or resident of New York (see, Scheinkman, Practice Commentary, McKinney's Cons Laws of NY, Book 14, Domestic Relations Law § 231 at 39; Foster-Freed-Brandes, Law and the Family in New York § 5:12 [2d ed]; Brown v. Brown, 55 Misc.2d 174, 176, 284 N.Y.S.2d 947; Boessenkool v. Boessenkool, 42 Misc.2d 945, 946, 249 N.Y.S.2d 253 [former Domestic Relations Law § 231]; Taubenfeld v. Taubenfeld, 276 App.Div. 873, 93...