Zweig v. Zweig, 89-120
| Decision Date | 01 June 1990 |
| Docket Number | No. 89-120,89-120 |
| Citation | 154 Vt. 468,580 A.2d 939 |
| Parties | Michael F. ZWEIG v. Martha MacNeal ZWEIG. |
| Court | Vermont Supreme Court |
Motion for Reargument Denied June 25, 1990.
Rubin, Rona, Kidney & Myer, Barre, for plaintiff-appellee.
Martha MacNeal Zweig, Hardwick, pro se.
Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.
This is an appeal by defendant wife from a divorce decree entered upon a finding that the parties had lived apart for six months and that the resumption of marital relations was not reasonably probable. 15 V.S.A. § 551(7).
The parties were married in Philadelphia in 1965 and moved to New York State. In 1974, plaintiff husband left the marital home and moved to New York City, where he still resides. Defendant wife moved to Vermont in the fall of that year and has lived in this state ever since. Both parties have cohabited with other individuals for over ten years. The only child of the marriage will be twenty years old in November of this year.
In December, 1978, plaintiff filed an action for divorce in New York State on the grounds of constructive abandonment and cruel and inhuman treatment. Defendant contested the action, and counterclaimed, seeking custody, child support, and maintenance. The court severed the custody and support issues, and the matter was tried on the divorce complaint alone. In July, 1980, the court dismissed the action, stating that plaintiff had failed to prove his allegations of constructive abandonment and cruelty.
After considerable lapse of time, in March of 1988 the New York court ordered plaintiff to pay child support of one hundred dollars per week retroactive to January 1, 1985; to maintain medical, dental, and life insurance for his daughter's benefit; and to pay all medical and dental bills in excess of one hundred dollars a year that are not covered by insurance. The support order remains in effect until his daughter's twenty-first birthday in November, 1991.
In 1988, plaintiff brought an action for divorce in Vermont pursuant to 15 V.S.A. § 592, alleging an irreconcilable separation exceeding six months. The court granted the divorce and denied maintenance to defendant. This appeal ensued.
On appeal, defendant challenges the trial court's jurisdiction to grant the divorce, asserting that the matter is res judicata because of the prior New York decision. Defendant is correct that if an initial suit for divorce is brought in a different state than the second suit, a judgment on the merits for the defendant bars a subsequent divorce action on identical grounds where the evidence will be essentially the same. See Slansky v. Slansky, 150 Vt. 438, 441, 553 A.2d 152, 154 (1988); Gordon v. Gordon, 59 So.2d 40, 43-44 (Fla.1952). The inquiry here, then, is whether these two divorce actions were brought on the same grounds and on the same evidence. We hold that they were not.
Plaintiff asserted cruelty and constructive abandonment as grounds for the New York divorce, not an irreconcilable separation of more than six months. N.Y.Dom.Rel.Law § 170 (McKinney 1988) permits no-fault divorce only pursuant to a one-year separation under a court decree or written agreement; neither is present in this case. Vermont's divorce statute, by contrast, does not require a written agreement or court decree; rather, it allows divorce after the parties have lived apart for six consecutive months, upon a finding that resumption of marital relations is not reasonably probable. 15 V.S.A. § 551(7). We decline to hold that, in this case, these statutory bases are so similar as to constitute identical grounds.
In any event, plaintiff's suit in New York did not rely on that state's no-fault provisions, N.Y.Dom.Rel.Law § 170(5), (6) (McKinney 1988), but instead on the grounds of constructive abandonment and cruelty. Defendant has not shown that the New York court considered that state's no-fault grounds in reaching its decision. The court's opinion clearly states that a divorce was sought and denied on the grounds of constructive abandonment and cruelty. At the conclusion of the opinion, a handwritten insertion mentions the "dead marriage" doctrine. Defendant attempts on appeal to establish that New York's "dead marriage" doctrine is in reality another name for irreconcilability, or some similar no-fault basis for divorce, which the New York court considered and rejected in the prior action. Defendant argues that in New York grounds of cruelty can encompass the "dead marriage" doctrine. Hessen v. Hessen, 33 N.Y.2d 406, 410-11, 308 N.E.2d 891, 894-95, 353 N.Y.S.2d 421, 426 (1974); Berlin v. Berlin, 64 Misc.2d 352, 355-56, 314 N.Y.S.2d 911, 916 (Sup.Ct.1970). Nevertheless, the doctrine is still part of the grounds for cruelty, and cannot stand alone under New York law as a distinct, no-fault basis for dissolution of a marriage. Brady v. Brady, 64 N.Y.2d 339, 345-46, 476 N.E.2d 290, 294, 486 N.Y.S.2d 891, 895 (1985); Berlin, 64 Misc.2d at 353, 314 N.Y.S.2d at 913.
Defendant further asserts that plaintiff "acknowledged ... that the issue of irreconcilable separation was tried and determined in New York," citing plaintiff's memorandum in opposition to defendant's motion to dismiss. That document contains no such acknowledgment, stating only that "even if" the matter had been raised in New York, plaintiff was not precluded from bringing suit in Vermont on a continuing cause of action. Defendant's res judicata argument, therefore, is meritless.
Even if plaintiff's claims in both lawsuits were identical, he is not forever precluded from alleging and proving irreconcilable separation in a later proceeding. "[A]pplication of res judicata ... does not preclude [a party's] ability to rely upon facts and circumstances existing after [an adjudication upon the merits]." Lillis v. Lillis, 1 Kan.App.2d 164, 168, 563 P.2d 492, 495 (1977). Moreover,
[i]t is apparent in the physical nature of things that where the law requires that the act ... be continuous for a specified period of time immediately prior to the commencement of the action, successive suits for divorce on [those grounds] necessarily involve separate and distinct factual situations in respect to that time element.
Reynolds v. Reynolds, 117 So.2d 16, 20 (Fla.Dist.Ct.App.1959) (emphasis omitted). The court need only find that the separation had lasted for the requisite statutory period on the date the case came to trial. The policy underlying no-fault dissolution of marriages recognizes that divorces should be granted when a marriage has broken down, so that the parties may be free to form other, and,...
To continue reading
Request your trial
-
Maghu v. Singh
...for six consecutive months and the Court finds the resumption of marital relations is not reasonably probable."); Zwieg v. Zweig, 154 Vt. 468, 471, 580 A.2d 939, 942 (1990) ("The policy underlying no-fault dissolution of marriages recognizes that divorces should be granted when a marriage h......