New York Legal Update

County To Challenge Recognition Of Canadian Gay Marriage

On February 1st, the Fourth Department gave legal recognition in New York to a homosexual marriage that was performed in Canada in Martinez v County of Monroe, 2008 NY Slip Op 00909 (See My Post of February 3rd).

According to canada.com, Monroe County will now appeal the Fourth Department's decision to the Court of Appeals. Monroe County's top political official, Republican executive Maggie Brooks claimed that the Fourth Department's decision was a clear "misinterpretation" of New York law and must be challenged. She stated, "we're letting people in Ontario, Canada define marriage for people who live in New York State. I don't think that's appropriate."

The conservative Coalition to Save Marriage in New York has applauded the appeal stating, "one activist court is not at liberty to substitute a foreign law for our state's law simply because that court may prefer the foreign law. This decision compromises the sovereignty of our state and violates its public policy."

The couple involved in the marriage, Patricia Martinez and Lisa Ann Golden, were not surprised by the appeal. However, the couple said: "We still view our marriage as legitimate. No court decision will devalue or negate what our marriage means to us."

Court May Award Maintenance In Action To Annul Marriage Based On Fraud

Domestic Relations Law § 141 specifically provides that maintenance may be awarded in an action to annul a marriage on the ground of incurable mental illness for five years of one of the parties. But can maintenance also be awarded in actions to annul a marriage on other grounds? There are five grounds to annul a marriage listed under Domestic Relations Law § 140: (1) under the age of consent, (2) mental illness, (3) physical incapacity, (4) force, duress, or fraud, and (5) mental illness for five years.

Article 9 of the Domestic Relations Law, which governs actions to annul marriages, is silent as to the other grounds. Only § 141 mentions maintenance in actions based on mental illness for five years.

The Second Department addressed this issue Tuesday in LeMieux v LeMieux, 2008 NY Slip Op 01510. In that case, the trial court awarded maintenance in an action to annul a marriage based on the ground of fraud.

The Second Department upheld the award rejecting the argument that Domestic Relations Law § 141 limited the power of the trial court to award maintenance only in actions based certain grounds. The Second Department found that the trial court had the discretion to award maintenance pursuant to Domestic Relations Law § 236(B)(2). Domestic Relations Law § 236(B)(2) states that the court has the discretion to make a maintenance award in any matrimonial action.  Thus, the trial court could award maintenance in an action to annul based on fraud. The Court stated that Domestic Relations Law § 141 simply provided an:

additional procedural and substantive detail with respect to an action to annul a marriage based upon five years' incurable mental illness of one of the parties, to ensure that the disabled spouse is cared for and does not become a public charge.

Appellate Division Recognizes Gay Marriage From Canada

On Friday, in the first ruling of its kind, the Appellate Division, Fourth Department gave legal recognition to a gay marriage from another jurisdiction. The other jurisdiction was Canada, and the Court gave recognition to the marriage under the State's longstanding "marriage recognition rule"  - Martinez v County of Monroe, 2008 NY Slip Op 00909. The facts were as follows:

On July 5, 2004, the plaintiff Patricia Martinez married her same-sex partner, Lisa Ann Golden, in the Province of Ontario, Canada. Ms. Martinez was an employee of the defendant Monroe Community College, in Rochester.  On the basis of that marriage, Ms. Martinez applied to the college two days later on July 7, 2004 for spousal health care benefits for Golden. The College admittedly provided health care benefits for the opposite-sex spouses of its employees. However, on November 24, 2004, the College's Director of Human Resources denied the plaintiff's application for spousal health care benefits.

The plaintiff then commenced an action seeking, among other things, a declaration that the College's failure to recognize her marriage for purposes of her spousal health care benefits application violated her rights under the Equal Protection Clause of the New York State Constitution and Executive Law § 296, and damages incurred as a result of those violations. The Supreme Court had granted the College summary judgment declaring that plaintiff's marriage was not entitled to recognition in New York and that the College did not violate the Equal Protection Clause or Executive Law § 296.

However, as indicated, the Fourth Department reversed and gave recognition to the gay marriage. The Court explained the State's "marriage recognition rule" as follows:

New York has recognized marriages solemnized outside of New York unless they fall into two categories of exception: (1) marriage, the recognition of which is prohibited by the "positive law" of New York and (2) marriages involving incest or polygamy, both of which fall within the prohibitions of "natural law". Thus, if a marriage is valid in the place where it was entered, it is to be recognized as such in the courts of this State, unless contrary to the prohibitions of natural law or the express prohibitions of a statute (quotation and citations omitted).

The Court then stated in part:

We conclude that plaintiff's marriage does not fall within either of the two exceptions to the marriage-recognition rule. * * * The Legislature has not enacted legislation to prohibit the recognition of same-sex marriages validly entered into outside of New York, and we thus conclude that the positive law exception to the general rule of foreign marriage recognition is not applicable in this case.

The natural law exception also is not applicable. That exception has generally been limited to marriages involving polygamy or incest or marriages offensive to the public sense of morality to a degree regarded generally with abhorrence (quotations and citations omitted), and that cannot be said here.

* * *

The Legislature may decide to prohibit the recognition of same-sex marriages solemnized abroad. Until it does so, however, such marriages are entitled to recognition in New York.

Having concluded that plaintiff's marriage to Golden was entitled to recognition in New York, The Court further concluded that, by refusing to recognize plaintiff's valid Canadian marriage, the College violated Executive Law § 296 (1) (a), which forbids an employer from discriminating against an employee "in compensation or in terms, conditions or privileges of employment" because of the employee's sexual orientation. Having found the statutory violation the Court stated it did not need to consider the Equal Protection argument.

It is not immediately clear whether Monroe County or Monroe Community College, the employer in the case, would appeal. Daniel DeLaus Jr., the county attorney for Rochester, said his office was reviewing the decision and would decide whether to seek an appeal. Attorney General Andrew Cuomo also declined to comment, noting that his office may be involved in an appeal as the traditional defender of state agencies. Monroe Community College is a branch of the State University of New York (see, New York Times).

A personal observation: The Court found that gay marriages do not go against "natural law", which it defined as those things which are, "offensive to the public sense of morality to a degree regarded generally with abhorrence." In so deciding, the Court did so as a matter of law, by granting summary judgment to the plaintiff. Forgetting biology for a moment, can it really be said as a matter of law that gay marriages are not "offensive to the public sense of morality to a degree regarded generally with abhorrence." Most major religions still condemn gay marriages as an offense against moral codes, and in vote after vote in various jurisdictions people continue to reject gay marriages by significant margins. The Court thus seemed to brush aside the public's rejection of gay marriage in various forms. It is at least questionable whether people consider gay marriage with abhorrence. Thus, I believe the Court should not have decided the issue on summary judgment, and instead it should have let the matter proceed to a jury. 

Surviving Partner Of Civil Union Not Entitled To Workers' Compensation Death Benefits

More and more jurisdictions are recognizing civil unions between same sex couples. What happens when one of the partners to a civil unions dies because of a work related injury. Is the surviving partner entitled to New York Workers' Compensation Death Benefits? The Third Department was faced with this question yesterday in Matter of Langan v State Farm Fire & Cas., 2007 NY Slip Op 10438 and decided that the surviving partner is not entitled to Workers' Compensation Death Benefits.

In that case, John Langan and Neal Conrad Spicehandler entered into a civil union in Vermont (see Vt Stat Ann, tit 15, § 1201) in November 2000. In February 2002, Spicehandler (decedent) was struck by a car while working. After undergoing resulting surgery the decedent died. Langan (claimant) filed workers' compensation claims for decedent's injuries, and for death benefits as decedent's surviving "spouse" pursuant to Workers' Compensation Law § 16 (1-a). The Worker's Compensation Board found that the claimant did not have standing as a "spouse" to assert the death benefits claim.

Under Workers' Compensation Law § 16 (1-a) certain benefits are payable to the surviving spouse, which is defined as "the legal spouse" of the deceased employee. No other definition of spouse if given.

On claimant's appeal, he made three arguments: (1) Workers' Compensation Law § 16 (1-a) includes a partner to a civil union as a surviving spouse; (2) the doctrine of comity required New York to recognize claimant as decedent's surviving spouse for death benefits purposes and, (3) the deprivation of death benefits to same-sex partners of a civil union violates the Equal Protection Clause of the US Constitution. The Third Department rejected each argument.

First, the Court examined the statute's plain language and legislative history and determined that a "legal spouse" was a husband or wife of a lawful marriage. Second the Court found that doctrine of comity did not require New York to confer upon partners of civil unions all of the legal benefits recognized by Vermont. The Court noted that while Vermont considered parties to a civil union to be "spouses" under that state's law it did not consider such parties to be part of a "marriage"(see Vt Stat Ann, tit 15, § 1204 [a], [b], [e] [9]; Vt Stat Ann, tit 15, § 1201 [2], [4]). The Court further stated that extension of benefits to civil union partners should entail a consideration of social and fiscal policy more appropriately left to the Legislature. Third, and finally, the Court found that prior case law had established established that confining marriage and all the laws pertaining either directly or indirectly to the marital relationship to different sex couples was not offensive to the Equal Protection Clause.

Cheating Wife Denied Divorce

Now what is she supposed to do? Normally its the non-cheating spouse - the cheatee - who files for divorce. But what happens when the cheater files for divorce. The Second Department's decision on Tuesday in Kaplan v Kaplan, 2007 NY Slip Op 09734 demonstrates that when the cheater files for divorce, the grounds for divorce may be lacking.

In that case, during a marital counseling session, the wife admitted to a long term extramarital affair. Thereafter, the husband moved out of the marital residence. More than one year later, the plaintiff-wife commenced the action for divorce, after 17 years of marriage, on the grounds of abandonment and cruel and inhuman treatment. The defendant-husband moved for summary judgment dismissing the action. The Supreme Court granted the husband's motion, and the Second Department affirmed.

The Second Department noted that in order to be granted a divorce on the grounds of abandonment, a plaintiff must demonstrate that the defendant unjustifiably and without the plaintiff's consent abandoned the plaintiff for a period of one or more years (see Domestic Relations Law § 170[2]). Here, The Court found that the husband was justified in leaving the marital residence because of his wife's extramarital affair. Thus, there was no abandonment, and the wife was not entitled to the divorce on this ground.

With respect to cruel and inhuman treatment the Court noted that the marriage was one of long duration, and thus, a high degree of proof was required for termination on the ground of cruel and inhuman treatment. And here the Court found that the plaintiff-wife's allegations of embarrassment and discomfort were insufficient to establish cruel and inhuman treatment.

So, I guess it is back to marriage counseling for this couple?

Attempting to Bribe Judge Constitutes Marital Fault in Equitable Distribution

In making equitable distribution awards in divorce actions, courts may consider marital fault as Domestic Relations Law § 236(B)(5)(d) contains a catchall provision, which allows consideration of "any other factor" which may be "just and proper."

What if you attempt to bribe the judge presiding over your divorce action? Can that be considered in making an equitable distribution award. Yes, held the Second Department Tuesday in Levi v Levi, 2007 NY Slip Op 09562. That case arose from the divorce fixing scandal in Kings County Supreme Court. The divorce action originally appeared before a certain Justice of the Supreme Court, Kings County. The action terminated abruptly after it was learned that the plaintiff-husband attempted to bribe the judge with a $10,000 payment for a favorable outcome.

When the divorce action appeared before a new judge, the new judge equitably distributed the marital residence entirely to the defendant-wife because the plaintiff-husband had attempted to bribe the judge. The Second Department affirmed the distribution finding that the new judge properly exercised its discretion in finding that the plaintiff's attempt to bribe the former judge constituted egregious marital fault to be factored into the equitable distribution award. The Second Department also rejected a claim by the plaintiff-husband that his conduct was not egregious because he was suffering from a mental disease or defect at the time he made the bribe.

"Separation Of Estates" Marriage Contract Held Enforceable

When it comes to marriage - Viva La Difference! Yesterday, the First Department upheld a marriage contract known as a "Separation of Estates" which apparently is common in France - Van Kipnis v Van Kipnis, 2007 NY Slip Op 06074.

In brief, the facts were as follows. The plaintiff wife and defendant husband were married in Paris, France, in 1965. The wife was a Canadian citizen, and the husband was a citizen of the U.S. Prior to the marriage, and at the specific request of the wife, the parties agreed to execute a "Contrat de Mariage" (Contract), which is a form of prenuptial agreement under the French Civil Code. The wife made all the arrangements for the Contract, including securing the presence of a "Notaire," the French official who presides over the execution of such contracts, and obtaining an American attorney and interpreter to protect the husband's interests. The expressly stated purpose of the Contract was to opt out of the "community property regime," which is the custom in France, in favor of a "separation of estates" property regime.

The Contract provided:

The future spouses declare that they are adopting the marital property system of separation of estates, as established by the French Civil Code. Consequently, each spouse shall retain ownership and possession of the chattels and real property that he/she may own at this time or may come to own subsequently by any means whatsoever. They shall not be liable for each other's debts established before or during the marriage or encumbering the inheritances and gifts that they receive. The wife shall have all the rights and powers over her assets accorded by law to women married under the separate-estates system without any restriction.

Shortly after the marriage, the couple moved to New York. During their respective careers, the husband acquired liquid assets of approximately $7 million and the wife acquired approximately $700,000-$800,000. Consistent with their 1965 selection of a separate property regime, the parties held these liquid assets in their own separate accounts. However, the parties did jointly own two properties, a country home in Lenox, Massachusetts, and co-op apartment on Fifth Avenue, in Manhattan.

Alas, after 38 years of marriage, the memories of the Eiffel Tower and strolling along the Seine faded and the parties sought a divorce. New York is an equitable distribution property state. So, you guessed it. During the divorce the wife realized how much she would lose if the Contract was enforced, and thus claimed that the Contract was not enforceable. She claimed that the Contract was executed for the purposes of opting out of the community property system of France, and so as to avoid the claims of creditors. She claimed that it was never intended to apply to divorce proceedings. During the proceedings, the husband likewise testified that the Contract was meant to protect themselves from creditors, and he never thought if had relevance in a divorce proceeding. Nevertheless, he argued that the terms of the Contract were unambiguous and should be enforced according to its terms.

Both parties called expert witnesses on marriage contracts in France. Both experts essentially testified that article 1536 of the French Civil Code provided different choices of matrimonial regimes. They also agreed that by signing the Contract the parties opted out of France's community property regime and chose a regime of separate property; that the legal effect of this selection was that each spouse retained the unfettered right to administer, enjoy and freely dispose of his or her separate property throughout the marriage and continuing through its dissolution; and that divorce is never mentioned in a marriage contract. Thus, their opinion was that the Contract was legally binding and enforceable.

The First Department upheld the enforceability of the Contract. The Court relied on traditional notions of contract law that public policy favors individuals deciding their own interest through contracts, and that if the language of the contract is unambiguous evidence outside the wording of the contract should not be considered. The Court found that the wording of the Contract was in fact unambiguous, and was  susceptible of only one reasonable interpretation, namely, that the parties chose to have a separate property regime govern the economics of their marriage without any durational limitation, contingencies or exceptions. And such separate ownership of property should continue after the divorce.

Even though the parties had testified that the Contract was not intended to apply in divorce proceedings, the Court stuck to the Contract. Thus, the wife was out of luck in obtaining access to the husband's more substantial assets.

C'est la vie, mon chérie. 

Personal Jurisdiction Over A Runaway Fianceé

Here's a case about a guy's worst nightmare. You buy her the expensive ring. But then a couple of months later she splits for the coast with the ring, some of your stuff, and even your dog! The question is can you obtain personal jurisdiction over your ex. That was the question before the Second Department on June 26th in Dreznick v Lenchner, 2007 NY Slip Op 05680. The plaintiff and the defendant resided together in New York and entered into an engagement to be married. Approximately 18 months after becoming engaged, the defendant terminated the engagement and left the plaintiff's residence with an engagement ring, a dog, and other items of personal property allegedly belonging to the plaintiff. The plaintiff demanded the return of the property. The defendant refused, and the action was commenced. The defendant was a domiciliary of California at the time the action was commenced.

The plaintiff's first cause of action sought the return of the engagement ring based on Civil Rights Law § 80-b and the tort of conversion. Four additional causes of action were based on breach of contract, unjust enrichment, and return of personal property. In her answer, the defendant asserted the affirmative defense of lack of personal jurisdiction and she moved for summary judgment dismissing the complaint on that ground. The Supreme Court denied the defendant's motion, and upon searching the record, granted the plaintiff summary judgment on his cause of action for return of the engagement ring.

The Second Department affirmed finding that the plaintiff established personal jurisdiction over the defendant. What is curious about the Second Department's decision is that it found that personal jurisdiction was obtained on the cause of action for the return of the engagement ring under CPLR 302(b). That section grants personal jurisdiction over non-residents and non-domiciliaries in "matrimonial actions." Since the plaintiff and defendant were never married, it is unclear how CPLR 302(b) could apply.

Court Denies Cruel And Inhuman Treatment Divorce

"Cruel and inhuman treatment" is one of the six grounds for granting a divorce in New York. Just what type of conduct constitutes "cruel and inhuman treatment." It is defined by Domestic Relations Law § as:

treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.

A decision from the First Department yesterday (Gross v Gross, 2007 NY Slip Op 04362) illustrates and reminds that obtaining a divorce on cruel and inhuman treatment is not necessarily an easy thing to do, and that somewhat isolated incidents involving physical altercations is not necessarily enough. The evidence at trial was as follows.

Plaintiff wife was asked at trial whether defendant had ever "physically force[d] himself on [her] sexually." In response, plaintiff testified that "I would have to say yes. It's only one time that, really where he hurt me." Plaintiff explained that defendant "[r]ammed [her] up against the wall" in the bathroom of their residence. Plaintiff did not elaborate in any other way about what she meant in stating that defendant had "force[d] himself on [her] sexually." Plaintiff offered no evidence that she had sustained any injuries as a result of this incident. In fact, she testified on cross-examination that she did not suffer any physical injuries as a result of the incident. Plaintiff also testified that defendant, on many occasions, "physically grabbed [her]." When asked to describe how defendant "grabbed" her, plaintiff stated: "[h]e'll grab me, he'll pull me down the hall, he'll block me so I can't leave the room, throw me on the bed, push me against the wall." Again, no testimony was elicited from plaintiff that she sustained any injuries as a result of defendant's conduct.

The Supreme Court had granted the divorce. However, on this evidence, the First Department reversed and dismissed the complaint. The Court noted that the parties had been married for over 37 years, and that under such circumstances, a "high degree" of proof of cruel and inhuman treatment was required. With respect to the plaintiff's testimony, the Court stated that it could include conduct ranging from the criminal (e.g., forcible rape) to the merely obnoxious. But it stated that reprehensible and highly offensive behavior is not necessarily sufficient to establish the cruel and inhuman treatment. Here it found that the plaintiff's uncorroborated testimony regarding unwanted physical contact was vague and general, and there was no evidence as to the effects of defendant's conduct on her physical or mental well-being. The Court further noted that the parties continued to reside together in the marital residence through the trial, they were able to talk to each other in a civilized manner, have dinner together every night, go out for meals and to the movies, and attend social functions.

The lesson here is clear that if there is not a lot of evidence of cruel and inhuman treatment another ground for divorce should be pleaded.