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New York Suffolk County Divorce Cruelly Constructive Abandonment Lawyers Attorney - By: Atchuthan Sriskandarajah
Katria Lee, Plaintiff, v. Laredo Lee, Defendant

Supreme Court of New York, Special Term, Suffolk County

July 23, 1980

Facts:

The marital difficulties started in February, 1975 when the husband told his wife that his commitment to the marriage was waning and uncertain and that he was then having an affair with a "student" at the college where he is now employed as dean of students. In spite of the efforts of the plaintiff to save her marriage, her husband became more distant, refused marriage counseling, stated he no longer loved her, absented himself from the home with increasing frequency and ultimately on July 31, 1979 moved out. These events had a predictable effect on plaintiff who became nervous and depressed, required sedatives and consulted on four occasions with a therapist. In his counterclaim, the husband contended the wife's unwillingness to have children and to engage in sexual intercourse unless he used a contraceptive constituted a defense to her cause of action, and such cruel and inhuman treatment on her part warranted the granting to him of a decree of divorce.

Issue:

Whether the refusal to have children, is, in any event, a defense to plaintiff's cause of action or the basis for independent relief either on the theory of cruelty, or constructive abandonment?

Discussion:

This court held that there is no statutory defense to an action for divorce based upon defendant's cruel and inhuman treatment and none is pleaded. Provocation which incites the other spouse's acts may constitute a defense, but in this case there is no credible evidence that plaintiff's conduct or her refusal to bear children antedated or provoked defendant's behavior. While defendant cannot thereby defeat plaintiff's action for a divorce, he can nevertheless neutralize the economic effect thereof by a finding that he is entitled to a dual divorce upon the basis of his counterclaim which alleges cruel and inhuman treatment by his wife. The court held the wife was entitled to a judgment of divorce because she demonstrated the husband engaged in a course of conduct constituting cruel and inhuman treatment of the wife to the extent that it endangered her physical and mental well-being and rendered it improper for her to cohabit with him. In addition, the court found the husband had not sustained his counterclaim.

Conclusion:

This court hence granted the wife's request for a divorce and denied the husband's counterclaim for a dual divorce.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content
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New York County Divorce Cruelty Abandonment Lawyers Attorney - By: Atchuthan Sriskandarajah
Lilly Peter v. John Peter

Supreme Court of New York, New York County

April 27, 1981

Facts:

The plaintiff has been married five times, twice each to two women; the defendant has been married three times. Their most recent marriage, to each other, occurred on December 28, 1976. They separated on June 17, 1979. No issue was born of this marriage. Each has two children by prior marriages. Mrs. Peter, who, following the commencement of her husband's action for divorce, began one of her own, is deemed in this action to be the defendant and her complaint, a counterclaim. Her first counterclaim is for divorce based on cruelty. The court at special term had denied the wife's motion for temporary alimony prior to trial. Among other acts of cruelty alleged, Mrs. Peter also asserted that her husband was constantly seeking to have her engage in sexual relationships with strange men. This conduct might render it "improper" for the defendant to continue to reside with the plaintiff. At the trial, a motion was made and granted, without opposition, to amend the counterclaim permitting Mrs. Peter to seek a divorce based on abandonment. There is no question that on or about June 19, 1979, the plaintiff left the marital home intending not to return and, in fact, never did return. He cut his wife off without any support whatever.

Issue:

Whether the wife is entitled to divorce on the ground of cruelty?

Discussion:

This court dismissed the husband's action, finding him not to have been a credible witness, nor to have offered sufficient proof warranting affirmative relief from the court. As to the wife's counterclaims, the court refused to grant her a divorce on the basis of cruelty because most of her allegations of cruelty, even if true, did not rise to the level of cruelty necessary to warrant a divorce under N.Y. Dom. Rel. Law § 170(1). However, the wife was granted a divorce under N.Y. Dom. Rel. Law § 170(2) on the grounds of abandonment. The husband had left the marital home intending not to return and, in fact, never did return. He cut his wife off without any support whatever. He had no reasonable basis to abandon her, and his abandonment had been for more than one year. Further, temporary alimony was granted because the husband's testimony as to his means was less than credible. The wife reasonably required alimony starting from the date from the return date contained in the notice of motion for temporary alimony. The wife was also entitled to attorney fees.

Conclusion:

This court hence dismissed the husband's complaint for divorce and granted the wife a divorce on the grounds of abandonment.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content
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New York Nassau County Foreign Divorce Decree Lawyers Attorney - By: Atchuthan Sriskandarajah
Victoria Lee, Respondent, v. Lorald Lee, Appellant

Supreme Court of New York, Appellate Division, Second Department

October 1, 1984

Facts:

On December 20, 1968, the parties were married. Less than a year later, on July 24, 1969, both parties traveled to Mexico, and appeared before a Judge of the First Civil Court of the Bravos District where the plaintiff wife's petition for divorce was granted declaring, inter alia, "the dissolution of the marriage that took place in [Kew Gardens] New York on December 20, 1968 between Mrs. Victoria Lee and Lorald Lee [leaving] both parties the ability to remarry at their convenience". While it is true that it was the plaintiff who initiated the Mexican divorce proceedings following the divorce the parties returned to New York and continued to reside together as husband and wife for nearly 10 years plaintiff wife brought on an application for various pendente lite relief, including requests for support and maintenance for herself and the parties' infant daughter The husband argued that the parties' foreign divorce decree constituted a complete bar to the wife's motion for pendente lite support and that N.Y. Dom. Rel. Law §236(B) did not invalidate prior rulings such that jurisdiction was lacking because the parties were no longer married. Appellant husband sought review from the order of the Supreme Court at Special Term (New York), which granted respondent wife an interim award for maintenance in an action brought by the wife seeking a declaration of nullity of a foreign judgment of divorce.

Issue:

Whether the trial court had erred in granting respondent wife an interim award for maintenance in an action brought by the wife seeking a declaration of nullity of a foreign judgment of divorce?

Discussion:

This court held that under § 236(B), the term "matrimonial action" included an action for a declaration of the validity or nullity of a foreign judgment of divorce. In any action governed by § 236(B), the court was empowered to award temporary maintenance and child support. Under Equitable Distribution Law, the proscription against granting temporary maintenance in a case where the existence of a valid marriage was in question was eliminated. Consequently, this court rejected the husband's claim that the foreign divorce constituted a complete bar to the wife's motion and held that the court did have jurisdiction to entertain requests for maintenance under §236(B)(2) in the face of a foreign divorce decree when a cause of action seeking a declaration of the nullity of the decree was before the court.

Conclusion:

This court hence affirmed the order granting the wife an interim award for maintenance

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content
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New York Suffolk County Foreign Divorce Equitable Distribution Lawyers Attorney - By: Atchuthan Sriskandarajah
Harme Mickey, Appellant, v. Barry Mickey, Respondent

Supreme Court of New York, Appellate Division, Second Department

August 28, 1989

Facts:

After having resided in the State of Colorado for two years, the defendant husband in this action obtained a divorce in that State. The divorce decree was dated December 28, 1979, some seven months prior to the effective date of the Equitable Distribution Law in this State. The plaintiff wife had never resided in Colorado and had never appeared in the Colorado action. A subsequent Colorado court order directed the defendant to pay child support. On or about June 25, 1986, the plaintiff commenced the instant action seeking, inter alia, a divorce on the ground of abandonment, equitable distribution of the marital property, and maintenance and child support. Additionally, the complaint sought similar economic relief in the event the court found that the foreign divorce decree was valid. The Supreme Court, Suffolk County, granted the defendant's motion to dismiss the plaintiff's action for a New York divorce and related relief essentially on the grounds that the plaintiff had failed to challenge the validity of the Colorado divorce, that the Colorado divorce decree was entitled to full faith and credit, and that the plaintiff was guilty of laches. The plaintiff appealed.

Issues:
Whether the wife was entitled to equitable distribution under N.Y. Dom. Rel. Law § 236(B)?
Whether the wife was entitled to maintenance and child support?

Discussion:
This court held that in view of the validity of the 1979 Colorado judgment of divorce, the plaintiff may not now assert her claim for equitable distribution. This court sustained the trial court's ruling that the wife was not entitled to equitable distribution under N.Y. Dom. Rel. Law § 236(B) because it applied only to divorces granted after July 19, 1980 regardless of where granted. Accordingly, because the Colorado decree was entitled to full faith and credit and predated July 19, 1980, § 236(B) did not apply.

This court reversed the ruling to the extent it dismissed the wife's claim for maintenance and support pendente lite, finding that the Colorado court did not have personal jurisdiction over the wife and that her support claims were properly determined in New York. The court also rejected the husband's laches defense because the parties had continued to negotiate in the intervening years and remanded for further proceedings.

Conclusion:
This court hence modified the order by reversing the dismissal of the wife's claims for maintenance and support pendente lite, remanding that matter for further proceedings, and as modified, the court affirmed the order which also dismissed the wife's claims for equitable distribution.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content
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New York Rockland County Divorce Equitable Distribution Lawyers Attorney - By: Atchuthan Sriskandarajah
James Peterson, etc., respondent, v John Joel, appellant, et al., defendants.

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

April 25, 1991, Argued
June 8, 1992, Decided

Facts:

Harriet, the plaintiff's decedent, and the defendant Joel, lived as husband and wife in Rockland County. Later the defendant husband left the New York house to take up residence in Florida. In 1986 the wife commenced the instant action for a divorce and ancillary relief. In 1987, while in Florida, the husband procured an ex parte divorce judgment there, effectively terminating the parties' status as husband and wife. Thereafter, he remarried. It is uncontroverted that the Florida divorce judgment made no attempt to settle the ancillary property issues relevant to the termination of the marriage. The husband also moved in the Supreme Court, Rockland County, for summary judgment dismissing the wife's complaint. The court converted the action to one, inter alia, for equitable distribution following a foreign judgment of divorce pursuant to Domestic Relations Law § 236(B)(2). Thereafter, the wife died. The defendant husband moved for reargument. He argued that the plaintiff possessed no meritorious cause of action for equitable distribution of former marital assets, contending that, upon his former wife's death, her share of the former marital residence vested in him by virtue of their tenancy by the entirety. The Supreme Court rejected these contentions and the defendant husband now appeals

Issue:

Whether a cause of action asserted for equitable distribution abates upon the death of the party seeking such relief where an ex parte foreign divorce judgment has been granted prior to that party's death?

Discussion:

This court held that the wife's death did not cause her equitable distribution action to abate. A divorce action was personal to a party and ended with that party's death. Conversely, under N.Y. Dom. Rel. Law § 236B5, a cause of action for equitable distribution following a foreign divorce judgment vested upon the entry of the foreign judgment. Compelling this conclusion were analogous rules related to actions for partition of former marital property or accrued alimony. Also compelling the conclusion was the conceptual similarity between actions for equitable distribution of marital and business partnership assets. Finally, sister jurisdictions had reached the same result.

Conclusion:

This court hence affirmed the order denying the husband's motion to dismiss his late wife's suit for equitable distribution of the parties' property incident to the ex parte foreign divorce that the husband had obtained.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content
…………………………………………………………………………………………………………………………………………………………………New York Kings County Abandonment Divorce Granted Lawyers Attorney - By: Atchuthan Sriskandarajah
Reetha James, Appellant, v Arthur James, Respondent.


SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

March 9, 2004, Argued
December 27, 2004, Decided

Facts:

The plaintiff, Reetha James, and the defendant, Arthur James, were married. Their union produced two children, one of whom was under the age of 21 in 2002 when Reetha commenced this action for divorce. In February 1996 Reetha obtained an order of protection requiring Arthur to stay away from the marital residence for one year as a result of his verbal and physical abuse. Arthur thereupon removed himself to another residence in which he remained for the next six years and apparently to date. The testimony at trial demonstrated that during the years of Arthur's absence, Arthur never contacted Reetha, nor made any overtures or offers to return. Reetha never changed the locks to the marital home, and expected Arthur to return after the expiration of the order of protection. She never did anything to discourage his return. While Reetha didn't expressly urge him to return, she explained that this was because Arthur knew he was entitled to do so. It would have been "agreeable" to Reetha had Arthur returned, but, he just "would not listen." Reetha telephoned Arthur at his residence, but he did not call her. Reetha visited Arthur's residence, but he did not visit her's. Reetha eventually learned that Arthur was sharing his residence with another female. After the nonjury trial, the Supreme Court granted Arthur's motion to dismiss Reetha's complaint finding that she failed to prove her cause of action for a divorce on the ground of abandonment since she never expressly encouraged his return. The plaintiff appeals the judgment.

Issue:

Whether the defendant’s conduct in removing himself from the marital residence and remaining away for six years constituted abandonment, and, if so, whether it was justified?

Discussion:

This court held that there is no authority requiring an abused and abandoned spouse to make overt efforts and affirmatively invite the deserter, her abuser, to come home. True, if Arthur had made a bona fide effort to return and Reetha rejected his efforts, her conduct might well have vitiated her claims of abandonment. The evidence in this case is, however, entirely to the contrary. Reetha never changed the locks to the home. Reetha called Arthur and he never called her. Reetha visited Arthur's residence; he never visited her. Arthur never sought by word or deed to seek reconciliation or evinced any interest in returning to the former marital residence. Moreover, as noted above, Arthur never pleaded justification as an affirmative defense in his answer nor sought to prove it during the trial, and justification has been held to be an affirmative defense to a cause of action based on abandonment and must be pled and proved. A failure to do so waives the defense In sum, Reetha was entitled to a divorce on ground of abandonment because she proved that Arthur abandoned her.

Conclusion:

This court hence reversed the judgment of the Supreme Court which granted defendant’s motion to dismiss plaintiff’s complaint finding that she failed to prove her cause of action for a divorce on the ground of abandonment.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content
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New York Queens County Divorce Constructive Abandonment Lawyers Attorney - By: Atchuthan Sriskandarajah
Arthur Lee, Plaintiff, against Charles Lee, Defendant.

SUPREME COURT OF NEW YORK, QUEENS COUNTY

December 9, 2005, Decided

Facts:

Plaintiff Arthur Lee and defendant Charles Lee were married on December 21, 1963. The parties had two children of the marriage, now both emancipated. Plaintiff is presently 64 years of age; defendant is age 72. Both parties currently reside in the marital residence, a two bedroom apartment in Douglaston, New York. This action for divorce was commenced by service of a Summons with Notice and a Verified Complaint on February 14, 2004. Plaintiff's causes of action for divorce were based on the alleged constructive abandonment of the plaintiff by the defendant pursuant to Domestic Relations Law § 170 [2] and the alleged cruel and inhuman treatment she suffered at the hands of the defendant pursuant to Domestic Relations Law § 170 [1]. Defendant appeared and served a timely Verified Answer.

Issue:

Whether the plaintiff is entitled to divorce on the grounds of constructive abandonment?

Discussion:

This court held that the plaintiff had testified that she and the defendant have not cohabited since 1995, having slept in separate bedrooms. The sole exception was a trip to Las Vegas, which plaintiff described as "a bad time," punctuated by constant fighting and in which the parties slept in separate beds. Plaintiff's testimony recounted attempts to resume marital relations, all of which met with a refusal and lack of communication on defendant's part. Plaintiff recounted continuous conduct, beginning in 1995, that included never doing anything together. This court held that after an assessment of the credibility of each of the parties, the court finds that the plaintiff has established an entitlement to a judgment of divorce on the grounds of constructive abandonment. It appears clear, to the satisfaction of this court, that the plaintiff has been abandoned by the defendant under any reasonable construction of the term. The defendant's testimony regarding the parties' sexual history is incredible on its face, especially when taking into account the complete breakdown of every other aspect of the parties' marriage.

Conclusion:

This court hence denied defendant's motion to dismiss plaintiff's cause of action for abandonment pursuant to DRL § 170 (2).

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content
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New York Nassau County Customary Divorce Ghana Lawyers Attorney - By: Atchuthan Sriskandarajah
Ben., Plaintiff against Louis, Defendant.

SUPREME COURT OF NEW YORK, NASSAU COUNTY

June 18, 2008, Decided

Facts:

The parties were married in what is referred to as a "customary marriage" in Ghana on April 20, 1977. An order issued on August 28, 1997 by the Circuit Court of Ghana, sets forth that on August 27, 1997, Mess (the husband's uncle) and Fens (the wife's father) filed a joint petition in support of an ex-parte motion seeking confirmation of the customary dissolution of the parties' "customary marriage". Upon hearing counsel for the applicants, the Circuit Court confirmed that the "customary marriage" of the parties' had been customarily dissolved on July 1, 1994; that the "customary divorce" was recognized under the laws of Ghana; and that both parties had been free to remarry since July 1, 1994. The document signed by the Deputy Counsel-General affirms that the order issued by the Circuit Court dissolved the parties' marriage in accordance with the applicable laws of Ghana. The husband customarily remarried in Ghana. Said marriage was "customarily dissolved" on August 21, 2001. A dissolution order was granted on January 14, 2002. On December 28, 2003, the husband "customarily married" his third wife in Ghana. Said marriage was "customarily dissolved" on November 17, 2006. A dissolution order was granted on January 17, 2007. This is a motion by the plaintiff (hereafter wife) for omnibus pendente lite relief. The defendant (hereafter husband) cross moves for an order pursuant to CPLR 3211(a)(1) and (7) dismissing the complaint.

Issue:

Whether the customary divorce granted in Ghana is valid?

Discussion:

This court held that in the case at bar, neither party commenced a divorce action in Ghana and neither party was granted a decree or judgment of divorce by a court of that country. Instead, by ex parte motion, the wife's father and husband's uncle purportedly procured an order dated August 28, 1997 confirming that the parties' marriage had been "customarily dissolved" on July 1, 1994 and that both parties had become free to remarry on that date. The order of the Circuit Court of Ghana dated August 28, 1997 did not divorce the parties; said order merely confirmed that the parties were divorced "customarily" on July 1, 1994. As said order states on its face that it was obtained ex parte and as the husband herein has not demonstrated, or even alleged, that the wife was served with any process or had any prior notice of the motion seeking a confirming order, this Court declines to afford comity to the order at issue herein dated August 28, 1997. In the case at bar, there are contested issues of fact as to whether either or both parties resided in Ghana or had other jurisdictional contacts with that country on July 1, 1994. There are also contested issues as to whether or not the wife had knowledge of the " customary divorce". The said issues cannot be determined without a hearing

Conclusion:

This court hence held that the wife's application for pendente lite relief is denied with leave to renew subsequent to the hearing in the event the Court either denies comity to the "customary divorce" or determines that while the "customary divorce" terminated the parties' marriage, it did not affect the wife's marital economic rights.

Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content
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