*1 [802 673] NE2d 770 NYS2d Exec- Respondent, as O’Connell, Corcoran, Maureen v Ellen O’Connell, Deceased, utrix Appellant. John J.
Argued September
2003;
decided November
*2
OF COUNSEL
POINTS
Albany,
appellant.
Clyne,
I. The instant action
for
Matthew J.
estoppel.
by principles
and collateral
of res
is barred
(O’Connell
Reilly Reid,
O’Connell,
Matter
v
950;
226 AD2d
v
Brooklyn
City Syracuse,
353;
54 NY2d
24;
v
45 NY2d
O’Brien
Welding Corp. City
York,
189;
AD2d
Boronow v
198
v
Newof
Allard,
210;
AD2d
Ni
Boronow,
v
197
284;
71
Viviano
NY2d
Miller,
395;
AD2d
Nikrooz,
334; Miller v
183
167 AD2d
krooz v
822.)
ap
Mahoney,
Mahoney
AD2d
II. The court below
131
v
(Anglin
plied
marital assets.
date to the
an erroneous valuation
481.)
Majauskas,
Majauskas
Anglin,
61 NY2d
v
553;
v
80 NY2d
properly
in
credited with his
not
decedent was
III. Defendant’s
(Heine
residence.
v
the marital
contributions toward
dividual
1076.)
Cleary Cleary,
The
AD2d
IV
v
171
Heine,
77;
AD2d
176
by failing
equities
erroneously
failed to balance
courts below
separation.
length
parties’
adequately
of the
consider the
655.)
(Michalek Michalek,
Defendant’s decedent’s
114 AD2d
V
v
Company
disability
monthly
payment
Life Insurance
from INA
subject
it
distribution since
of New
(Dolan
injury.
Dolan,
compensation
personal
78
v
for
reflects
433.)
Amara, 243 AD2d
463; Amara v
NY2d
(Michael Friedman of
Molinsek, P.C.,
P.
Delmar
Friedman
Plaintiff-respondent’s
counsel),
respondent.
claim is not
I.
(Nikrooz
judicata.
Nikrooz,
334;
AD2d
167
v
res
barred
Mahoney,
Mahoney
Braunstein,
46;
v
114 AD2d
v
Braunstein
26.)
ap
II. The court
Erhart,
AD2d
Erhart v
226
822;
AD2d
131
reaching
its de-
propriately
the factors it considered
set forth
(Monette Monette,
v
termination.
Du Jack v Du
802;
177 AD2d
Jack, 221 AD2d
712.)
III.
appropriately utilized
the commencement of the action as the cutoff date for equitable
v
of plaintiffs
(Anglin Anglin, 80 NY2d
pension.
McMahon,
McMahon v
553;
Sullivan v Sulli
364;
187 Misc 2d
van, Nicit,
Matter Nicit v
417;
AD2d
217 AD2d
883.)
NY2d
IV
court appropriately distributed the marital
property in
of the
spite
length
parties’ separation given
(Bisca
the fact of the circumstances of the parties’
v
marriage.
Bisca, Rizzuto,
Rizzuto v
AD2d
741;
NY2d
250 AD2d
Price,
Price v
829;
Burns,
Burns v
8;
69 NY2d
369;
84 NY2d
Judson,
Judson v
Walasek,
OPINION OF THE COURT J. CIPARICK,
In 1959, plaintiff Maureen O’Connell and now-deceased John J. O’Connell were married in New York.1 Eight children were born of the all marriage, currently In emancipated. plaintiff moved out of the marital residence and commenced a New York divorce action based on cruel and inhuman treat- trial, ment. After Supreme Court dismissed the action for fail- ure of proof the Appellate Division affirmed AD2d 823 1986]). [3d Dept Thereafter, plaintiff and decedent continued to reside separately. children lived with plaintiff, and decedent child paid support.
In plaintiff established residence Vermont. Thereaf- ter, in 1994, she commenced a divorce action in the Court Family of Vermont pursuant no-fault law, Vermont’s divorce which permits divorce when “a married person has lived apart his or her for six spouse consecutive months and the court finds that the of marital resumption relations is not reasonably prob- (Vt able” Ann, 15, § Stat tit Decedent was served with a complaint divorce, seeking letter answer opposed During 1. pendency Court, appeal of his motion for leave to to this Corcoran, estate, John O’Connell died. Ellen as executrix of his was substituted as the defendant in this action. hearing 21, 1994. A final was scheduled for December
divorce. requesting court, from the Decedent received notice Vermont appear hearing he at the on the divorce and motion that property although appeared pro se,
division. Decedent accompanied him and in the courtroom. counsel was available During hearing, plaintiffs counsel informed the Vermont plaintiff seeking only court court that a divorce. When the inquired property explained that all of division, about counsel parties’ York State and marital assets were located New jurisdiction property. the Vermont court lacked distribute judge plaintiffs nor decedent contested state- Neither the trial only previous argued plaintiffs divorce ac- ment. Decedent maintaining her from a divorce action tion in New York barred rejected hearing, Vermont. At the close argument granted plaintiff judgment of a final decedent’s It made no divorce. distribution. against commenced this New York action seeking equitable of the marital
decedent
(B) (5) (a),
pursuant
to Domestic Relations Law 236
courts to distribute marital
authorizes New York
subsequent
foreign judgment
moved
of divorce. Decedent
ground
complaint
that the
was barred
for dismissal on
judicata.
Family
argued that,
res
He
because Vermont
parties,
personal
over
the court could have
had
both
directing equitable
judgment
distribution of their
rendered a
eq-
He
failure to seek
marital assets.
contended
her
divorce action barred
uitable distribution
*4
seeking subsequent equitable
and,
in
distribution Vermont
therefore, under the Full Faith and Credit Clause
United
plaintiffs
required to dismiss
Constitution,
States
complaint.
New York was
Appellate
Supreme
motion and the
Court denied decedent’s
(226
[3d Dept 1996], Iv dismissed
affirmed
AD2d 950
Division
§
Noting
that Domestic Relations Law
Domestic Relations Law 236
a New
following foreign
property
a
to obtain the distribution of marital
judgment
a
of
differ as to whether
bilat-
divorce.2 Lower courts
eral sister
the sister state
state divorce decree—one which
property—precludes
have,
not,
could
a
but did
distribute marital
subsequent
equitable
New York
to obtain
distribu-
(B) (2)
(5) (a)
pursuant
(compare
tion
to section 236
[3d Dept
[1996],
1996],
AD2d 950
Iv dismissed
within the sister state the divorce preclude subsequent New York must also action for Erhart, distribution of marital 226 AD2d at approach requirements This faith is consistent with the of full application and credit and our in matrimo- own of res nial actions. (B) (2) (5) (a) broadly
While section 236 are worded permit parties postdivorce equitable fol- to obtain (B) provides part:
2. Section relevant Except provided “2. Matrimonial actions. as subdivision five applicable part, provisions part this of this shall be to . . . proceedings to maintenance or a distribution of marital obtain divorce, property following foreign judgment commenced on [July 19, part 1980]. . . . and after the effective date of this actions, Disposition “5. in certain matrimonial a. provided agreement for the Except where the have in an court, proceedings disposition property . . the ... of their . *5 following foreign judg- property a obtain a distribution of marital divorce, respective rights par- ment the of shall determine separate property, provide for ties in their or marital and shall disposition judgment.” the thereof in the final 184
lowing foreign no mention of whether such a divorce—with parte divorce results from either an ex or bilateral divorce proceeding—the interpreted only statute should be to extend as permits. far the In accordance the Full as Constitution with “judgment Clause, Faith and of a state court should Credit every validity, credit, effect, have the same other court States, where it was United which it had state (Underwriters pronounced” Natl. Assur. Co. v North Carolina Assn., 691, [1982], 704 & Acc. & Health Ins. Guar. 455 US Life quoting Hampton [16 US] [1818]; McConnel, Wheat Vanderbilt, [1957]; Matter see also Vanderbilt v 354 US [2001]). Dobson, Thus, Luna v where a 97 NY2d foreign subsequent divorce decree would serve as a to a ac bar brought tion for courts of the decree-rendering state, decree that effect in also has York.
Giving foreign
divorce decree the same conclusive effect
decree-rendering
con-
New York as it would have in the
state is
judicata
application
in matrimonial
sistent with our own
of res
(see
Boronow,
actions
Boronow v
Vermont Statutes title [divorce] “[u]pon motion of either rights . . . the court shall settle the property, by including judg- to their in its provisions equitably assign ment divide and property. All owned either or both of acquired, parties, shall however and whenever subject (emphasis be of the court” supplied). despite
Here, the erroneous statement of question court had counsel, there is no the Vermont personal jurisdiction over both and decedent could marital wherever situated. We have distributed the reject plaintiffs contention and the dissent’s conclusion only contesting appearance the divorce decedent’s was limited powerless to had rendered itself dissenting op and that the Vermont court decide the York, the common-law doctrine of res Vermont, as New litigation if there of a claim or defense exists “bars judgment litigation ‘parties, a final in former which the
185 subject matter and causes of action are identical or substantially ” (Berlin Ctr., Stoneman, Convalescent Inc. v identical’ 159 Vt [1992]). 53, 56, 141, 615 A2d 143 This “doctrine covers claims that were actually litigated, as well as those which could have (Roddy v litigated” been in action Roddy, previous 168 Vt 343, 2, 347 n 721 A2d n 2 124, 127
Applying of full faith principles credit, and plaintiff’s divorce action has the same in conclusive effect New York as it does Vermont. We, therefore, that, hold Do- notwithstanding (B) (2) (5) mestic Relations Law 236 (a), this action is barred New York. Public policy New York and Vermont frowns forum upon and the shopping bifurcation of divorce and Boronow, equitable distribution proceedings. this Court held that a in a divorce action, who had a full and fair op- to portunity contest title to the former marital home, was barred from raising the issue of title in a subsequent action 71 286). NY2d at Applying transactional analysis, we explained that, in a action, divorce
“questions pertaining to important issues ancillary like title to marital are inter- certainly twined and constitute issues which can generally be fairly efficiently resolved with the core issue. The courts and the parties should ordinarily be able to for the plan resolution of all issues relating to the (id. marriage relationship single action” at 290).
The Vermont Supreme Court similarly has recognized pref- erence for a action. v single As the court noted in Roddy Roddy, “[n]o one is entitled to break a case down into a myriad of single issue actions to obtain the desired Judicial judgment. time schedules and fairness to one’s opponent this prohibit (Roddy, B & E practice” 168 347, 127, Vt at 721 A2d at quoting [1972]).3 Corp. Bessery, Vt 298 A2d Thus, a party—who had a full and fair opportunity litigate property issues in another state—would precluded be such litigating issues in York.
Finally, we do not agree with the dissent Vermont court “expressly adjudicate declined to the issue of equitable 114, 118, 3. The dissent’s on reliance Ford v Franklin Vt A2d [1971]) misplaced as the in that case had obtained an ex parte decree, having “being Nevada divorce defendant defaulted and neither (Id.) present person by attorney.” nor (dissenting op language distribution” ing at There is no sever- nothing distribution, issues of in the court’s entirely order to indicate an intention to do so. The dissent rests 187-188), (quoted colloquy on a counsel with counsel when erroneously advised that the court lacked to divide responded right. O’Connell, “All New York assets. The court Mr. anything you put is there at this wish way Indeed, time?” This in no in a 12- constitutes severance. transcript hearing, page court used *7 right” eight clearly moving times, words “All a means of as parties along. agree closing we, law, can a
Nor as court with the dissent’s equitable plaintiff that, denied, observation if is nothing long marriage. fact, In will receive term we do guided by equities here, not know the true and must be the law parties’ arguments and the to us.4
Having equitable determined that action for distri- remaining barred, bution is we need not address defendant’s they contentions as are academic.
Accordingly, Appellate the order of the Division should be re- granted complaint versed, the motion dismissed with costs. (dissenting). J. court G.B. Because the Vermont Smith,
expressly adjudicate declined to the issue of distribu- Appellate tion, I affirm the order of the would Division. Plaintiff Maureen O’Connell and defendant John J. O’Connell was, were married in 1959. was a nurse and he as he She brewing company. described, laborer at a beer When the company early vice-president 1960s, closed in the defendant was energy company. to for an of the Defendant then went work company he remained retirement in 1994. where until his year after Plaintiff, contrast, became a homemaker about marriage, raising eight All the children the first of children. two-story colonial home con were raised in a five-bedroom primarily in 1968 and 1969. While defendant was structed plaintiff responsible building home, maintained it. parents significant improvement of the Plaintiff’s financed garage. home’s noting predicated argument that 4. It that the dissent is on an bears
being plaintiff. asserted recently proceeded preliminary and the executrix with 1. Defendant died this action. separated. By plaintiff the two then had resumed her
vocation as a nurse. Plaintiff moved to another home with all except away the children for one who was in school. Plaintiffs year, (O’Connell action for divorce that same based on cruel inhuman treatment, was O’Connell, unsuccessful 116 AD2d plaintiff essentially When left children, with the she took no marital with her. later,
About decade December succeeded in obtaining required a divorce in Vermont where she was not enough they establish that defendant was at fault. It was living apart had been for more than six months and reconcilia- unlikely. appeared tion was The defendant at the court proceeding. Vermont to contest the divorce The Vermont court attorney, would not allow his who was not in Vermont, admitted participate proceeding. proceeded pro Defendant se protested proceeding only grounds prior on the New York divorce. The Vermont court stated that it would take opposition objection defendant’s an be the court, and it denied defendant’s assertion that the New was determinative.
During following the divorce in Vermont, place discussion took between counsel and the court after testified: ques- . . . am I to then, understand that “court: property by you
tions of division are conceded as to appropriately being before this court? prop- “[counsel]: As far as I understand all of the erty— only asking point
“court: You’re at this for a decree of divorce—
“[counsel]: Correct.
“court:—nothing ancillary to that? That’s it. Correct.
“[counsel]: you explain why And will to the court “court: is? any
“[counsel]: Because as far as I know if marital property exists, it exists the State of New York jurisdic- I and don’t believe this court would have regard tion to make orders with marital division property in the assets State of New York. right.” “court: All
Plaintiff then commenced this action New seeking equitable distribution. Plaintiff relied on New provides, York Domestic Relations Law as rele- proceedings vant, that “in of marital obtain property following foreign judgment divorce,” respective rights parties “shall determine the in their separate provide disposi- marital or and shall for the (§ [a].) judgment.” [B] [5] tion thereof in the final Defen- ground dant moved to dismiss the action on the of res estoppel. and collateral The trial court denied the motion Appellate concluding, affirmed, Division the Vermont provision “[n]o action, . . . made for the distribution of litigated any marital way” nor was the or alluded to (226 [1996]). AD2d This Court dismissed (88 [1996]). appeal defendant’s motion for leave to NY2d 963 plaintiff approximately Thereafter, the court awarded one including half of the estate, marital a share of the marital resi- pension money dence, benefits, defendant’s and various ac- (290 Appellate again counts. The Division once affirmed AD2d Appellate Division noted that the were years both 62 old at the time of the trial and that “defendant challenged successfully defeated the action, 1982 divorce subsequently any failed to demonstrate unfairness permitting plaintiff property acquired ensuing to share in years” appeal AD2d at This ensued.
By specifically granting authority equita- courts the to make “following foreign judgment ble distribution awards contemplates divorce,” section 236 that a can obtain having equitably while divorce in one state distributed *9 subject Nevertheless, York. section is to article 236 IV § provides Constitution, 1 of the United which that “Full States given public Acts, Faith and Credit shall in each to the be State (see judicial Proceedings every gen- Records, of other State” [2001]). erally Dobson, v 178, Matter Luna 97 NY2d 182-183 of Although defendant references res and collateral estoppel, estoppel preclusion applicable collateral or issue is not only in this case because the issue of divorce was resolved judgment Folk, Inc., final on the merits Farrell v Mountain [1999]). 568, 568-569, 597, 169 Vt 730 A2d 598 The Vermont
189 There of distribution. court did not resolve that is- could have resolved no that the Vermont court doubt (a) reads Annotated, 15, title 751 sue. Vermont Statutes “Upon part, under this either to a motion of parties rights chapter, to their settle the the court shall equita- by including judgment provisions which in its bly assign property.” divide judicata, the Vermont as articulated
The doctrine of res litigation if of a claim or defense Court, “bars the litigation judgment in which the there a final in former exists subject ‘parties, are identical or and causes of action matter ” (Berlin substantially Ctr., Inc. v Stone identical’ Convalescent quoting [1992], Berisha v man, 53, 56, 141, 615 A2d 143 159 Vt [1984]). Hardy, 136, 138, 90, 144 A2d 91 Unlike issue Vt 474 actually litigated only “[i]t preclusion, but also bars not issues ” litigation’ previous have raised in those which ‘should been (159 Trucking quoting 56, 143-144, at 615 A2d at American Vt Conway, Assns., 1323, A2d 1328 363, 370, Inc. v Vt “protect purpose judicially crafted rule is relitigation, parties against the courts and the the burden encourage judicial prevent decisions, vexatious liti reliance on adjudication” gation and decrease the chances of inconsistent (159 144). 57, at A2d at Vt (168 [1998]), Roddy Roddy
In
the court
v
Vt
721 A2d
precluded
seeking supplemental
af-
a mother from
maintenance
entry
support
ter
of divorce and maintenance and child
orders
having
change
The court
without
to show a
of circumstances.
sought
have,
have,
that the mother “could
and should
found
original
supplement
divorce
in connection with
maintenance
(168
127).
support proceeding”
at
721 A2d at
and child
Vt
(136
[1978]),
Vt
In Ford jurisdiction parties personal the had over vada court with granted things, among not, other a divorce decree which did jointly dispose The court of owned located Vermont.2 party, upon court could motion either held that Vermont, “was, and is located distribute the which (129 jurisdiction” 274 A2d at Vt and under Vermont Avery [1993]; Poston, A2d 1076 466; Poston v 161 Vt cf. A2d 314 Bender, 124 Vt of distribution of case, In this the issue proceeding and neither the Vermont raised in the Vermont was challenged nor the defendant the assertion trial court jurisdiction prop- attorney plaintiffs over the court lacked that right,” “[a] By using erty York. the term located New argu- approval placed seal of on more, the court its without court did so because it counsel. Whether the ment argument genuinely or “to move in the merits believed argued along” the defendant is irrelevant. When because of not exercise the court should judgment, responded the term with York divorce immediately right,” “[a]ll ruled as follows: but your opposition “The will treat court today your as a motion letter and recitation filed jurisdiction. The court will to dismiss for lack following grounds deny . . . .” the motion on misplaced, quoting majority that reliance on this case is 2. The asserts attorney ap- nor opinion stating that neither defendant his language from the However, following quoted proceedings. the sentence peared at the duly regularly process served with language that “Defendant was states twenty days elapsed the said ser- action, have since and that more than in this having appear Summons, failed to the default for said Defendant vice of regularly herein” Vt at having duly entered been and answer 274 A2d at argued plaintiff’s court contrast, counsel In lacked not otherwise when *11 only right,” “[a] jurisdiction, and did the court stated challenge it did defendant the assertion as when jurisdiction. disagreed objected Had the court to the court’s plaintiff argued statement, then it could be that counsel’s with light of the court’s in Vermont. should have raised the issue brought eq- plaintiff ruling, an said that could have it cannot be Despite expansive in uitable distribution claim Vermont. language powerless to the court rendered itself section decide the issue. engaged majority plaintiff in
The the fact that is troubled shopping by going after unsuccess- to Vermont so-called forum fully seeking York in York. There is no New stat- divorce New prohibiting plaintiffs conduct. There is no statute ute, however, seeking provides plaintiff that that a who was unsuccessful litigate may York to divorce in any not come back to New jurisdic- obtaining foreign after a divorce in a related issues Similarly, opposite tion. In prohibiting there is no statute fact, the is true. plaintiff failed to a divorce in New who obtain trying York from to do so in another state. discourage holding majority to an- will do little plaintiff
other going to obtain a divorce in New York from who fails it do is ensure
to another state like Vermont. What will plaintiffs equitable distribution of that will either seek jurisdic- foreign (assuming personal the court has state plaintiff spouse), did in tion over the or make it clearer than jurisdiction over this that the court did not wish to exercise case property. the marital applied
Separately, res while the Vermont recognized Roddy, has that and in the court Grant applied judge-made doctrine flexible and should not be mechanically Tudhope A2d Riehle, 174, 179, 704 167 Vt citing Delahunty Mut. Ins. v Massachusetts [1997], Life [1996]; see also Co., 582, 591, 674 A2d 236 Conn [2001]). Although Murphy, A2d 502 Jones v 172 Vt adjudicated, equitable not this was was not issue of distribution engage piecemeal lit and vexatious desire to due to plaintiff igation. wished to avail that It is also not the case equitable York, rather statute New herself of the distribution adjudicated Rather, the one in than the Vermont. accepted not be the issue could court, belief, out of a resolved Vermont. equitable broadly statute distribution worded
Vermont’s ensuring for- importance that a attaches evinces the spouse prop- mer his or her fair receives share of the marital erty. party may forgo right, A choose but that is not what occurred here. This case would be had different instructed to raise the issue of failing challenge by plaintiff’s rather than the statement jurisdiction. counsel that the court did not have Roddy supplemental pegged involved maintenance, which was to the need of the children. The former wife would have had a remedy change in Vermont if she could have shown a of circum- alimony, spouse stances. Grant involved and the former would remedy upon proof change also had a have in Vermont of a addition, circumstances. In she could have an commenced ac- Virgin jurisdic- tion in the Islands since the court there retained *12 alimony. tion over outright disposition property.
This case involves the If precluded seeking her fair share of marital long then she will receive no marital from a (she marriage term took almost no marital when she marriage) primarily responsible left the in which she was rearing eight maintaining children and the marital home. Plaintiff will not receive what the lower courts found she was to—equal including entitled distribution of assets, marital home, marital defendant’s various investments and bank ac- pension. counts, and his preclude
The Full Faith and Credit Clause should not the cur- seeking equitable rent action distribution.
Accordingly, Appellate I affirm would the order of the Divi- sion. Judge Judges Chief Kaye and Read Rosenblatt, Graffeo Judge Judge
concur with dissents and Ciparick; G.B. Smith separate opinion. votes to affirm in a reversed, Order etc.