Decisions of Interest

No Need to Dismiss No-Fault Action

Supreme Court, Nassau County, denied a woman's motion for dismissal of her husband's no-fault divorce action even though it was brought after she filed for divorce claiming inhuman treatment and constructive abandonment. Heinz v. Heinz, 203438/10, NYLJ 1202483036423, at *1 (Sup., NA, Decided February 16, 2011) (Palmieri, J.).

The court was asked to decide whether a man could begin his own divorce action after the “no-fault” ground came into effect in New York if his wife's fault-based action against him was commenced prior to the time when the no-fault ground became effective. The wife sought dismissal of the second action, arguing that hers was pending. She contended that as her case was commenced before the no-fault effective date, the new no-fault statute could not apply. The husband argued he was not obligated to counterclaim for divorce, but could maintain his own action. The court agreed with the husband. In addition, in further support of the husband's position, the court noted that the husband was served with the summons with notice after he instituted his action, so no jurisdiction over his person was acquired and no appearance in the wife's action could have occurred before the new statute came into effect. Therefore, the court denied the wife's motion to dismiss.

Court-Appointed Attorneys Are Not for the Well-Off

Justice Robert A. Ross of Supreme Court, Nassau County, ordered a hearing to determine payment for a divorcing man's court-appointed attorney after the man gave his wife $45,000 in settlement of their case, indicating that he was wealthier than he had previously led the court to believe. Cohen v. Cohen, 200455-07, NYLJ 1202486857347, at *1 (Sup., NA, Decided March 15, 2011).

A man accused of contempt in conjunction with a divorce matter requested, and was given the assistance of, court-appointed counsel after he informed the court, through his statement of net worth, that his assets were very limited. However, before that matter progressed to a hearing, the parties settled all issues. As part of that settlement, the husband gave the wife $45,000 in liquid assets. Thus, it became apparent to the court that the husband had not disclosed to it the true value of certain of his business and other assets. In determining that a hearing should be held to see what the husband should pay his court-appointed attorney, Judge Ross wrote: “The expense of court-appointed counsel is borne by the public-at-large, and is wholly misspent when compensation for legal services is provided under circumstances where the litigant's true and accurate financial status at the time of appointment is misstated or concealed.” The court concluded that the husband should now be given the opportunity to amend his statement of net worth. Then, a hearing will be held to establish when the assets used to settle the divorce action were acquired, what other assets are now available to the husband, and how he should promptly pay his court-appointed attorney.

Lack of Subject Matter Jurisdiction

The U.S. District Court for the Southern District of New York has declined to dismiss for lack of subject matter jurisdiction a woman's tort-based suit against her ex-husband, as her claims do not involve matrimonial matters and the federal court therefore need not bow to the authority of the state courts. Allam v. Meyers, 09 Civ. 10580 (KMW), NYLJ 1202485310651, at *1 (SDNY, Decided Feb. 24, 2011) (Wood, J.).

A woman brought suit against her former husband in federal district court alleging several tort claims, including false imprisonment, assault and battery. All the causes of action were based on alleged physical and emotional abuse that took place prior to and during the parties' marriage, which lasted less than one year and ended in annulment. Jurisdiction over the parties was based on diversity citizenship.

The defendant ex-husband moved to dismiss the action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. He claimed that the court should dismiss the action for lack of subject matter jurisdiction because state courts generally have jurisdiction over domestic relations disputes. In the alternative, the defendant averred that even if federal jurisdiction is proper, the court should abstain from exercising it because the subject matter of the dispute concerned the parties' marital conduct and the claims could be fully and fairly determined in state court.

Concerning the defendant's first contention, the court was unmoved. It noted that although federal courts have been divested of the power “to issue divorce, alimony, and child custody decrees” (Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992)), this plaintiff's claims did not ask for any of these. Instead, her suit sounded in tort and sought only money damages.

As to the plea for federal abstention, the court noted that the U.S. Supreme Court counseled in Ankenbrandt that abstention “should rarely be invoked,” because the federal courts have an obligation to exercise the jurisdiction that has been given to them. Still, the court construed the defendant's motion as raising two grounds for abstention: 1) That a case should be heard in state court where, as stated in dictum in Ankenbrandt, it involves elements of the domestic relationship even though divorce, alimony and child support are not its goals (this is known as Burford abstention, from the case Burford v. Sun Oil Co., 319 U.S. 315 (1943)); and 2) That federal courts should abstain from exercising jurisdiction over issues on the verge of being matrimonial in nature “so long as there is no obstacle to their full and fair determination in state courts.” American Airlines Inc. v. Block, 905 F.2d 12, 14 (2d Cir. 1990).

The court determined that Burford abstention applies only to matters involving elements of the domestic relationship where “difficult questions of state law” bear on “policy problems of substantial public import whose importance transcends the result in the case then at bar.” Ankenbrandt, 504 U.S. at 705-06 (internal quotations omitted). No such considerations were present in this case.

Likewise, American Airlines-type abstention was inappropriate because the common law torts the plaintiff alleged did not “verge” on being matrimonial in nature simply by virtue of the fact that the plaintiff and defendant were once married. The court stated, therefore, that, “Exercising jurisdiction over the instant matter ' would not lead to this Court's intrusion upon state court expertise.”

As no federal or state law policies favored federal abstention, the court declined to dismiss the case on that basis.

No Need to Dismiss No-Fault Action

Supreme Court, Nassau County, denied a woman's motion for dismissal of her husband's no-fault divorce action even though it was brought after she filed for divorce claiming inhuman treatment and constructive abandonment. Heinz v. Heinz, 203438/10, NYLJ 1202483036423, at *1 (Sup., NA, Decided February 16, 2011) (Palmieri, J.).

The court was asked to decide whether a man could begin his own divorce action after the “no-fault” ground came into effect in New York if his wife's fault-based action against him was commenced prior to the time when the no-fault ground became effective. The wife sought dismissal of the second action, arguing that hers was pending. She contended that as her case was commenced before the no-fault effective date, the new no-fault statute could not apply. The husband argued he was not obligated to counterclaim for divorce, but could maintain his own action. The court agreed with the husband. In addition, in further support of the husband's position, the court noted that the husband was served with the summons with notice after he instituted his action, so no jurisdiction over his person was acquired and no appearance in the wife's action could have occurred before the new statute came into effect. Therefore, the court denied the wife's motion to dismiss.

Court-Appointed Attorneys Are Not for the Well-Off

Justice Robert A. Ross of Supreme Court, Nassau County, ordered a hearing to determine payment for a divorcing man's court-appointed attorney after the man gave his wife $45,000 in settlement of their case, indicating that he was wealthier than he had previously led the court to believe. Cohen v. Cohen, 200455-07, NYLJ 1202486857347, at *1 (Sup., NA, Decided March 15, 2011).

A man accused of contempt in conjunction with a divorce matter requested, and was given the assistance of, court-appointed counsel after he informed the court, through his statement of net worth, that his assets were very limited. However, before that matter progressed to a hearing, the parties settled all issues. As part of that settlement, the husband gave the wife $45,000 in liquid assets. Thus, it became apparent to the court that the husband had not disclosed to it the true value of certain of his business and other assets. In determining that a hearing should be held to see what the husband should pay his court-appointed attorney, Judge Ross wrote: “The expense of court-appointed counsel is borne by the public-at-large, and is wholly misspent when compensation for legal services is provided under circumstances where the litigant's true and accurate financial status at the time of appointment is misstated or concealed.” The court concluded that the husband should now be given the opportunity to amend his statement of net worth. Then, a hearing will be held to establish when the assets used to settle the divorce action were acquired, what other assets are now available to the husband, and how he should promptly pay his court-appointed attorney.

Lack of Subject Matter Jurisdiction

The U.S. District Court for the Southern District of New York has declined to dismiss for lack of subject matter jurisdiction a woman's tort-based suit against her ex-husband, as her claims do not involve matrimonial matters and the federal court therefore need not bow to the authority of the state courts. Allam v. Meyers, 09 Civ. 10580 (KMW), NYLJ 1202485310651, at *1 (SDNY, Decided Feb. 24, 2011) (Wood, J.).

A woman brought suit against her former husband in federal district court alleging several tort claims, including false imprisonment, assault and battery. All the causes of action were based on alleged physical and emotional abuse that took place prior to and during the parties' marriage, which lasted less than one year and ended in annulment. Jurisdiction over the parties was based on diversity citizenship.

The defendant ex-husband moved to dismiss the action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. He claimed that the court should dismiss the action for lack of subject matter jurisdiction because state courts generally have jurisdiction over domestic relations disputes. In the alternative, the defendant averred that even if federal jurisdiction is proper, the court should abstain from exercising it because the subject matter of the dispute concerned the parties' marital conduct and the claims could be fully and fairly determined in state court.

Concerning the defendant's first contention, the court was unmoved. It noted that although federal courts have been divested of the power “to issue divorce, alimony, and child custody decrees” ( Ankenbrandt v. Richards , 504 U.S. 689, 703 (1992)), this plaintiff's claims did not ask for any of these. Instead, her suit sounded in tort and sought only money damages.

As to the plea for federal abstention, the court noted that the U.S. Supreme Court counseled in Ankenbrandt that abstention “should rarely be invoked,” because the federal courts have an obligation to exercise the jurisdiction that has been given to them. Still, the court construed the defendant's motion as raising two grounds for abstention: 1) That a case should be heard in state court where, as stated in dictum in Ankenbrandt , it involves elements of the domestic relationship even though divorce, alimony and child support are not its goals (this is known as Burford abstention, from the case Burford v. Sun Oil Co. , 319 U.S. 315 (1943)); and 2) That federal courts should abstain from exercising jurisdiction over issues on the verge of being matrimonial in nature “so long as there is no obstacle to their full and fair determination in state courts.” American Airlines Inc. v. Block , 905 F.2d 12, 14 (2d Cir. 1990).

The court determined that Burford abstention applies only to matters involving elements of the domestic relationship where “difficult questions of state law” bear on “policy problems of substantial public import whose importance transcends the result in the case then at bar.” Ankenbrandt, 504 U.S. at 705-06 (internal quotations omitted). No such considerations were present in this case.

Likewise, American Airlines-type abstention was inappropriate because the common law torts the plaintiff alleged did not “verge” on being matrimonial in nature simply by virtue of the fact that the plaintiff and defendant were once married. The court stated, therefore, that, “Exercising jurisdiction over the instant matter ' would not lead to this Court's intrusion upon state court expertise.”

As no federal or state law policies favored federal abstention, the court declined to dismiss the case on that basis.