Patty P., Plaintiff, v. Jason P., Defendant.

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Supreme Court, Kings County, New York.

Patty P., Plaintiff, v. Jason P., Defendant.

XXXXX

Decided: July 16, 2019

Abrams Fensterman, et al By: Grace Borrino, Esq. Attorney for Plaintiff One Metrotech Center, Suite 1701 Brooklyn, New York 11201 Mary Grace Condello, Esq. Attorney for Defendant 1716 86th Street Brooklyn, New York 11214

The following papers numbered 1 to 3 read herein:

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed 1

Opposing Affidavits (Affirmations) 2

Reply Affidavits (Affirmations) 3,

Other

Plaintiff filed an action for divorce by filing a summons and verified complaint dated February 6, 2019. In the verified complaint, plaintiff averred that jurisdiction pursuant to DRL § 230 was satisfied because she had been a resident of New York State for a continuous period of at least two (2) years immediately prior to commencement of the action. An affidavit of service of the summons and verified complaint dated February 12, 2019 was filed.

On March 5, 2019, defendant filed a request for judicial intervention and the instant application seeking an order dismissing the divorce action filed by the plaintiff on the grounds that this Court does not have jurisdiction over the proceeding pursuant to DRL § 230 and CPLR 302(b), alleging that plaintiff has not established that she is a resident of New York State. Plaintiff filed an Affidavit in Opposition dated April 9, 2019 and defendant filed an Affirmation in Reply dated May 15, 2019. Oral argument was held on the record on May 21, 2019. Plaintiff and plaintiff's attorney and defendant's attorney were present. The defendant's appearance, who currently resides in Oklahoma, was waived.

The Facts

Plaintiff-wife and defendant-husband were married on August 7, 1998, in Oklahoma City, Oklahoma. There are two (2) children of the marriage: one aged sixteen (16) years old and another age twenty (20) years old. During the majority of the parties' marriage, the defendant was a member of the military and it is undisputed that the parties had five (5) matrimonial domiciles during the marriage: none of which were New York State. The parties first resided in Oklahoma, from August 1998 to November 2004. The U.S. military sent the defendant to Washington State, as a result, plaintiff followed and the parties remained in Washington State until August 2008. The parties then relocated to Maryland, where the parties remained until August of 2011. Thereafter, the military sent the defendant to Virginia, and the plaintiff again followed the defendant. The parties resided in Virginia from August 2011 until November 2012. Subsequently, the parties moved back to Oklahoma. The defendant is no longer in active military duty and is currently employment at a local Veteran's Affairs ("VA") Hospital. The parties spent the next six (6) years of their marriage in Oklahoma until July 2017. Defendant still resides in Oklahoma.

Defendant avers that the parties never traveled to or resided in New York State during the marriage and he avers that they never committed any marital act in the State of New York. Plaintiff did not affirmatively dispute that representation and did not provide any evidence to the contrary.

Plaintiff contends that she left the matrimonial domicile in Oklahoma in July 2017 and moved to New York State where, she alleges, she has resided continuously ever since. Plaintiff alleges that she left the marital residence in Oklahoma due to domestic violence. In support of her allegation, she annexed to her application a July 31, 2017 application for an order of protection that she filed against the defendant in Cleveland County, Oklahoma.

In that sworn application seeking the order of protection, plaintiff averred that she was a resident of Cleveland County as of July 31, 2017. The order of protection was subsequently dismissed.

Defendant does not dispute that plaintiff left Oklahoma in or about July 2017. He avers that after she left Oklahoma, the plaintiff briefly resided in Texas where he contends she remained for the duration of Hurricane Harvey, which touched down on August 25, 2017, and lasted until August 30, 2017. Defendant offered no basis for his belief that plaintiff was in Texas during that time; however, plaintiff did not dispute defendant's allegation that she was in Texas during August 2017 in her opposition papers or when that allegation was raised on the record during oral argument. Plaintiff alleged that after she left Oklahoma she spent time in a "safe house" then moved to Brooklyn, New York.

Defendant avers that he was not privy to plaintiff's whereabouts after she left Texas sometime after August 2017 and that he had no knowledge that plaintiff allegedly moved to New York State. He contends that, at most, plaintiff could only have become a resident of New York State sometime after August 2017 which would make it impossible for her to satisfy the two (2) years of continuous residency immediately prior to the commencement of the divorce action required by DRL § 230(5) when she filed the action in February 2019.

Plaintiff has filed two sworn affidavits in this action in which she avers to her residency in New York State: those sworn affidavits are inconsistent. In the Verified Complaint, dated February 6, 2019, plaintiff alleges that she has been a resident of New York for at least two (2) years continuously immediately before the commencement of the action. Based upon plaintiff's filing, she would have had to have been a resident of New York State by February 6, 2017 in order to satisfy the two (2) years of continuous residence immediately before the commencement of the action. Subsequently, in her Affidavit of Opposition to defendant's motion to dismiss, plaintiff alleges that she has been a resident of New York State for one (1) year and that DRL 170(7) is a "cause of action" sufficient to trigger DRL 230(3).

Plaintiff also offered conflicting allegations regarding whether the defendant knew she was in New York. She alleges that defendant was covertly tracking her whereabouts and that he knew she was in New York State; however, during the May 21, 2019 oral argument, plaintiff's counsel represented that the defendant could not know where the plaintiff was residing, stating that:

"He (the defendant) would not know where she (plaintiff) was, your Honor, because it was a complete stay away, and there was a radius restriction as to where he could be near her. So of course he (defendant) would not have an address, because of the outstanding orders from Oklahoma. My client never proceeded with the Oklahoma order of protection because she (plaintiff) left Oklahoma and came to New York." (May 21, 2019 p. 8, ll 4-10).

On September 29, 2017, defendant commenced an action for divorce in Oklahoma; however, he avers that service could not be effectuated to satisfy Oklahoma's statutory time period because he did not know where plaintiff was residing. In plaintiff's Affidavit of Opposition, she avers that the defendant did not file an action for divorce in Oklahoma, rather, she filed for divorce in New York and the defendant contested the action; however, annexed to plaintiff's own affidavit as Exhibit A, is a copy of the first page of a summons and complaint dated September 29, 2017, filed in the District Court of Cleveland County, Oklahoma with the defendant as the petitioner and the plaintiff as the respondent. This appears to contradict plaintiff's own representation.

Domestic Relations Law 170(7): A "cause of action"?

In a recent decision of first impression, Stancil v. Stancil, 1 N.Y.S.3d 917 [NY Sup. Ct. 2015](Cooper, J.) the Supreme Court addressed the question of whether the newly enacted "no-fault" divorce provision, DRL § 170(7), created a "cause" under DRL § 230(3), such that the residency requirement was reduced from two (2) years to one (1) year. As of this time, no Appellate Court in New York has ruled on this question.

The facts in Stancil are similar to the facts presented to this Court in the instant matter. In Stancil, defendant-husband served in the military and, as a result, the parties had several matrimonial domiciles during the marriage, none of which were in New York. The plaintiff-wife moved to New York for an internship in clinical psychology while the defendant remained in Virginia. Plaintiff resided in the State for fourteen (14) months before plaintiff commenced an action for divorce, asserting that the no-fault divorce provision is a "cause" sufficient to satisfy DRL § 230(3) and that, as such, she only needed to be a resident of New York State for one (1) year pursuant to DRL § 230(3), instead of two (2) years under DRL § 230(5).

In Stancil, the Supreme Court held that DRL § 170(7) was not a "cause of action" sufficient to satisfy DRL § 230(3) because to rule otherwise would contradict the express intent of the legislature to keep the procedural aspects of other laws in tact. Stancil, N.Y.S.3d at 923. The Court found that:

"From the plain meaning of DRL § 230(3) which simply says 'cause' rather than 'cause of action' or 'grounds for divorce,' the legislature was referring to a specific act or acts which must be plead. Based on the plain meaning of DRL § 170(7) and the case law interpreting it, irretrievable breakdown is not a specific act." Id. at 922-23.

Moreover, the Court noted that "[u]nlike an act of adultery or abandonment, which objectively occurs at a specific time and place, an irretrievable breakdown is in the eye of the beholder, a subjective state of mind." Id. at 922; Tuper v. Tuper 98 AD3d 55, 58 [4th Dept. 2012]. Therefore:

"(...) If almost every divorce is commenced using 170(7), and if irretrievable breakdown of the marriage could be construed as a specific act or 'cause' under 230(3), then DRL 230(5), which now sets the prevailing standard of two years, would be rendered obsolete and the residency requirement would effectively be reduced to one year." Id. at 923.

It is this Court's position that if the Court adopted plaintiff's theory that the DRL 170(7) "irretrievable breakdown" in the marital relationship was a cause of action sufficient to satisfy DRL § 230(3) the Court would be reducing the general residency requirement to seek a divorce in New York State from two (2) years to one (1) year contrary to the legislative intent and, in effect, by judicial fiat. The legislature did not enact changes to DRL § 230 concomitant with the enactment of the "irretrievable breakdown" provision provided for in DRL § 170(7). This Court cannot and should not extend or modify the residency requirement established by the Legislature in the statute.

Domestic Relations Law 230

In this State, subject matter jurisdiction is conferred by NY Dom. Rel. Law § 230, which states that:

"[a]n action to annul a marriage, or to declare the nullity of a void marriage, or 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."

It is well established that "[n]o court or judicial officer can acquire jurisdiction by the mere assertion of it, or by erroneously alleging the existence of facts upon which jurisdiction depends." Verney v. Verney, 53 AD2d 608, 608-09 [2nd Dept. 1976] (quoting O'Donoughe v. Boise, 159 NY 87, 98 [1899]). The Courts in the State of New York have jurisdiction in matrimonial actions that is limited to the powers that are expressly conferred to the courts by statutes. Id. at 608.

Under Domestic Relations Law 230, a matrimonial action may only be maintained when certain residency requirements are met, noncompliance with the statute leaves the court without any power to act judicially on the parties marital status. Verney, 53 AD2d at 608 (emphasis added). The statute sets forth residency requirements plaintiffs must comply with in order to commence an action to annul a marriage or declare nullity of a void marriage. Lipski v. Lipski, 293 AD2d 344 [1st Dept. 2002]. These 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." Unanue v. Unanue 141 AD2d 31, 41 [2nd Dept. 1988]. The requirements do not provide alternative grounds for jurisdiction, rather, additional residency requirements that "go only to the substance of the divorce cause of action, not the competence of the court to adjudicate the cause." Id. at 344; (quoting Lacks v. Lacks, 41 NY2d 71, 73 [1976]); see Sternshuss v. Sternhuss, 336 N.Y.S.2d 586, 588 [NY Sup. Ct. 1972] (finding that the residency requirements of NY Dom. Rel. Law § 230 are constitutional as they do not deny equal protection or Due Process of law, and the party has not irretrievably lost the right to a divorce, it is merely postponed through a valid exercise of state legislative function). The durational residency requirements for a divorce action may be satisfied by either the traditional method of proving a domicile in the State of New York, or proving that the party resided in the State long enough to satisfy the statutory period. Unanue, at 38, 39. If neither party to a separation action has resided in New York for at least one year immediately preceding the commencement of the action, the court lacks the requisite subject matter jurisdiction and has no power to grant relief. Eckert v. Eckert, 34 AD2d 684 [2nd Dept. 1970] (emphasis added).

Despite plaintiff's sworn statement in her verified complaint dated February 6, 2019 that she had been a resident of New York State for a continuous period of at least two (2) years immediately prior to commencement, plaintiff subsequently changed her sworn statement in her affidavit in opposition after defendant raised the jurisdictional challenge to this action that when the divorce was filed on February 6, 2019 she had been a resident of the State for more than one (1) year.

Defendant contends that plaintiff has not satisfied any statutory predicate of DRL § 230 because, he asserts, the parties' marriage did not occur in this State, this State was not a matrimonial domicile, and no cause of action occurred in New York.

Plaintiff's own sworn statement in her application for an order of protection dated July 31, 2017 affirmatively states that she is a resident of Cleveland County, Oklahoma as of that time. The earliest plaintiff could have moved to New York State would have been August 2017 which is still less than two (2) years prior to her February 6, 2019 filing of the instant action.

Plaintiff's Residency Claim

The basis of each of defendant's challenges is whether plaintiff has established residency in New York State and, if so, how long she has been a residence here. Despite the clear specific residency issue presented, plaintiff provided this Court with an insufficient basis to establish that she has established residency in New York. While plaintiff asserts that she is a resident of and lives in New York State she neither alleged a New York address nor represented that she has or will apply for an Order of Confidentiality pursuant to DRL § 254(1)1 or request that the Court to conduct an in camera inspection of said proof if the address is determined to be confidential.

Instead, in support of her allegation that she is a resident of New York State, plaintiff represented that she is employed at an unspecified tattoo parlor; however, she did not include any proof of employment or allegation as to when that employment purportedly started. In support of her assertion, plaintiff annexed a letter from a provider of psychiatric services; however, that letter states that plaintiff has been receiving treatment there since January 15, 2019, less than a month before she commenced this divorce action. Furthermore, the letter does not detail whether sessions take place in person or by telecommunication or how regularly the sessions take place and while there is a signature on the letter there is no indication as to the name of the subscribing party.

In addition to not providing her alleged address in New York, or filing for an order of confidentiality, plaintiff failed to provide any other documentary evidence that could be used to establish residency in New York such as a lease agreement, utility bill, telephone bill, tax return, driver's license, pay stub, etc.

This complete lack of supporting documentation, taken together with plaintiff's own conflicting sworn statements as to her residency are problematic especially when the Court considers that she had a full opportunity to do so. As such, there is no proof before the Court that plaintiff has even been a resident of New York State for two (2) years, for one (1) year or that she is even a resident of New York State at all at this time. As such, plaintiff has failed to establish that she has standing to commence this action for divorce under DRL 230.

Order of Confidentiality

The Court in no way holds that a party with an order of confidentiality must reveal his or her address in order to satisfy the residency requirement; however, here, plaintiff did not seek an order of confidentiality and she refused to provide any documentary support for her allegation of residency. Some documentary proof, even if submitted for in camera if plaintiff's address was deemed confidential, was required.

Because plaintiff has not provided this Court with any valid proof of residency she has failed to establish that she is a resident of New York State even at this time. As such, this Court lacks the requisite subject matter jurisdiction over this divorce proceeding, under DRL § 230(3) or DRL § 230(5) and must grant the defendant's Motion to Dismiss. The Court need not reach the merits, if any, of defendant's contention that this Court lacks personal jurisdiction over him pursuant to CPLR 302(b); however, the Court notes that the legislature has specifically determined that residency by one party for two (2) or more years satisfies the statutory predicate for residency in an action for divorce.

Conclusion

Plaintiff failed to establish that she is a resident of New York State and, therefore, the action is dismissed.

The Court notes that plaintiff's allegations of domestic violence do not confer jurisdiction upon the Supreme Court for an action of divorce if the statutory resident requirements are not satisfied, notwithstanding the jurisdiction the Family Court or Criminal Court may have related to alleged domestic violence issues.

Defendant's motion to dismiss is granted.

This constitutes the decision and order of the Court.

ENTER:

July 16, 2019

JEFFREY S. SUNSHINE

J. S. C.

FOOTNOTES

1.   NY Dom. Rel. Law § 254(1) states that "[n]otwithstanding any other provision of law, in any proceeding for custody, divorce, separation, or annulment, whether or not an order for protection or temporary order of protection is sough or has been sought in the past, the court may, upon its own motion or upon the motion of any party or the attorney for the child, authorize the party or the child to keep his or her address confidential from any adverse party or the child, as appropriate, in any pleadings or other papers submitted to the court, where the court finds that the disclosure of the address or other identifying information would pose an unreasonable risk to the health or safety of a party or the child. Pending such a finding, any address or other identifying information of the child or party seeking confidentiality shall be safeguarded and sealed in order to prevent its inadvertent or unauthorized use or disclosure."

Jeffrey S. Sunshine, J.