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Thursday, January 5, 2012

Our NY appellate attorney's dicussion on appeals regarding equitable distribution subsequent or ancillary to a divorce action.

New York Appeals and an action for equitable distribution subsequent to a foreign judgment of divorce.

Domestic Relations Law §236(b)(2) and 5(a) provide in relevant part,

Except as provided in subdivision five of this part, the provisions of this part shall be applicable to actions for an annulment or dissolution of a marriage, for a divorce, for a separation, for a declaration of the nullity of a void marriage, for a declaration of the validity or nullity of a foreign judgment of divorce, for a declaration of the validity or nullity of a marriage, and to proceedings to obtain maintenance or a distribution of marital property following a foreign judgment of divorce, commenced on and after the effective date of this part. Any application which seeks a modification of a judgment, order or decree made in an action commenced prior to the effective date of this part shall be heard and determined in accordance with the provisions of part A of this section.  Domestic Relations Law § 236.

Except where the parties have provided in an agreement for the disposition of their property pursuant to subdivision three of this part, the court, in an action wherein all or part of the relief granted is divorce, or the dissolution, annulment or declaration of the nullity of a marriage, and in proceedings to obtain a distribution of marital property following a foreign judgment of divorce, shall determine the respective rights of the parties in their separate or marital property, and shall provide for the disposition thereof in the final judgment.  Domestic Relations Law § 236 

            The plain language of the statute allows a litigant who has obtained a foreign judgment of divorce to bring a subsequent New York equitable distribution action so long as any court anywhere has not adjudicated the issues of marital property distribution. 

Case Law Dealing with an action for Equitable Distribution Subsequent to a Foreign Judgment of Divorce

The Second Department referring to Domestic Relations Law §236 decreed,

This rather specific statutory language leave little doubt that a spouse who is the subject of a divorce decree obtained from another jurisdiction, which decree does not resolve the issue of property distribution, is permitted to seek such a resolution in the New York courts.  Braunstein v. Braunstein, 497 A.D.2d 46, 51 [2nd Dept. 1985]

The Braunstein court citing Schultz v. Boys Scout of America, 65 N.Y.2d 189 [1985] defines three criteria for an application of collateral estoppel; i) the issue must actually have been litigated and determined by a valid and final judgment in a separate action; ii) that determination must have been essential to the judgment; and iii) either party to be precluded had a full and fair and opportunity to litigate the issue in the prior proceeding or other circumstances do not justify affording him an opportunity to relitigate it.  Defining res judicata, the Braunstein court stated,

Res judicata serves to preclude the renewal of issues actually litigated and resolved in a prior proceeding as well as claims for different relief which arise out the same “factual grouping” or transaction and which should have or could have been resolved in the prior proceeding. Braunstein v. Braunstein, 497 A.D.2d 46, 51 [2nd Dept. 1985]

Braunstein’s rationale is an obvious one.  Allowing parties to bring issues already resolved in a jurisdiction they submitted to, leads to second guessing, judicial waste, and exposes the parties themselves to endless litigation.  Permitting parties to circumnavigate principles of comity, collateral estoppel, and res judicata might cause different fact finders to reach diametrically opposing results and encourage forum shopping to attain otherwise foreclosed ends.  Braunstein’s ruling seeks to prevent judging anew a matter already decided.

In Braunstein, the plaintiff was awarded divorce, custody and maintenance, in Sweden.  Neither party raised, nor did the Swedish Court address, any issues regarding property distribution.  The Braunstein court specifically stated that, “the issue of property distribution was not addressed in the prior matrimonial action nor does it appear to this court the parties sought such a resolution by the foreign tribunal.”  Braunstein 497 A.D.2d 46, 54 [2nd Dept. 1985].

The Braunstein court reasoned that the Defendant in that action was not being subjected to endless litigation.  The distinction it made is critical to the survival of a lawsuit pursuant to Domestic Relations Law §236(b)(2) and (5)(a). Marital property issues were not raised, addressed or resolved.

The Second Department’s view appears more liberal than that of the First Department and the New York Court of Appeals.

In O’Connell v. Corcoran, 1 N.Y.3d 179 [2003] the Court of Appeals eighteen years after Braunstein addressed the question of property distribution pursuant to Domestic Relations Law §236.  In the words of the Court of Appeals, “[where] a foreign judgment divorce decree would serve as a bar to a subsequent action for equitable distribution brought in the courts of the decree-rendering state, the decree also has that effect in New York.” O’Connell v. Corcoran, 1 N.Y.3d 179, 184 [2003].  The O’Connell court does not mention Braunstein directly, but addressed the Braunstein rule when it examined Plaintiff’s ability to bring an action for equitable distribution when she had a full and fair opportunity to bring same in Vermont.

In applying the Full Faith and Credit Clause, US Const art IV, § 1, the O’Connell court precluded the plaintiff from pursuing an action for equitable distribution because she incorrectly believed she could bifurcate her divorce and equitable distribution actions between New York and Vermont. 

Maureen O’Connell informed the Vermont Court that she was only bringing an action for divorce and would bring her property distribution in New York because she believed New York to be the court of competent jurisdiction.  The Court of Appeals gave the Vermont judgment preclusive effect because pursuant to Vermont law, Plaintiff would have been foreclosed from bringing an equitable distribution action subsequent to the judgment of divorce.  Plaintiff had a full and fair opportunity to litigate her action in Vermont, yet she chose to purposely engage in piecemeal litigation in New York.  In the words of the Court of Appeals,

[There] is no question that the Vermont court had personal jurisdiction over both Plaintiff and decedent and could have distributed the marital property, wherever situated.  We reject Plaintiff’s contention that decedent’s appearance was limited only to contesting the divorce and that the Vermont court had rendered itself powerless to decide the property issue.  O’Connell v. Corcoran, 1 N.Y.3d at 184

            The impact of the Court of Appeals decision was to narrow the broad interpretation that a plain meaning reading of §236 permitted.  In so doing, the O’Connell court also narrowed the holding in Braunstein.  An action for equitable distribution following a foreign judgment of divorce will be barred in New York if the issues had already been actually litigated, but also if a subsequent action is barred in the jurisdiction that granted the judgment of divorce.  Limiting O’Connell’s holding any further will dilute the purpose behind §236(b) and place a significant burden on any litigant seeking their day in court.  The Court of Appeals decision presently mandates that the party seeking dismissal make a showing that the laws of the original jurisdiction bar the New York litigant’s action. 

The De Ganay Appeal in the First Department

            In De Ganay v. De Ganay, 269 A.D.2d 157 [1st Dept. 2000] the parties litigated their divorce and marital property claims in France.  Plaintiff did not bring a nouveau action for equitable distribution in New York, but sought equitable distribution of only that which the French Court did not address.  This First Department affirmed the motion’s court decision to dismiss on the grounds that her claims could have been raised in French proceedings, and are therefore barred by res judicata.  The Court held,

The parties entered into a prenuptial agreement adopting the separate property regime, which agreement the French judgments, granted comity by this court, found to be valid, and the French divorce judgment ordered a liquidation of the parties’ matrimonial estate, specifically noting that the liquidation was to be in accordance with the separate property regime chosen by the parties.

            This decision falls in line with O’Connell decision in the Court of Appeals.  A cursory analysis of these decisions also illuminates a potential distinction between the approach of the Second Department when compared with that of the First and the Court of Appeals.  It may help some litigants in receipt of a foreign judgment of divorce to venue their action for equitable distribution in the Second Department versus the First Department.

Copyright Marzano Lawyers PLLC 2013

Marzano Lawyers PLLC appellate lawyers have handled and are presently handling appeals in NY courts dealing with equitable distribution generally and equitable distribution decisions and judgments following a foreign judgment of divorce.  If you need assistance in this area of law, please contact us or a law firm of your choosing.

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