New York Court Says It Has Jurisdiction to Dissolve a Vermont Civil Union

Written by Arthur S. Leonard Monday, 27 July 2009 06:26

A New York Supreme Court Justice has ruled that the Supreme Court’s general equity powers can be used to dissolve a Vermont civil union.

While dismissing the divorce petition filed in B.S. v. F.B., 2009 Westlaw 2195786 (N.Y. Supreme Ct., Westchester County, July 15, 2009), Justice Sam D. Walker stated that the dismissal was without prejudice to the plaintiff’s right to file a new complaint seeking a dissolution of the civil union.

The opinion recites that the two women were a long-time same-sex couple residing together in Westchester County. In 1994, they participated in a religious marriage ceremony in New Mexico that had no legal effect there. In 2004, they obtained a civil union in Vermont. More recently, as defendant descended into alcoholism and became abusive to plaintiff, the relationship deteriorated and defendant instituted a civil court proceeding to evict plaintiff from their home, characterizing her as a "tenant at will." Plaintiff obtained a stay of the eviction proceeding, filing an action in Supreme Court alleging that the couple were married and seeking a divorce. Defendant denied that they were legally married, and argued that the Vermont civil union was not valid anyway, pointing to some ambiguous language in the civil union certificate that might be literally construed to mean that the civil union is only authorized in Vermont. Defendant argued that since the parties had no legal marriage, the court had no jurisdiction to grant a divorce.

Judge Walker agreed with this last argument, finding that the court’s jurisdiction over a divorce action counted on the parties having a legal marriage. But he noted the string of recent cases by lower New York courts recognizing same-sex marriages performed out-of-state, as well as the progress of the marriage equality bill in the legislature, and asserted that there should be some sort of relief available to the plaintiff.

The court determined that the couple's Vermont civil union appeared to be valid, rejecting the defendant's interpretation of the Vermont civil union certificate as being inconsistent with other aspects of the Civil Union Act, and noting the general understanding that there is no residency requirement for performance of a civil union in Vermont. (To this reader, the language that defendant relies upon is plausibly interpreted as meaning that the license to perform a civil union only authorizes a ceremony to be performed within the state, and does not mean that the status thus created may not be recognized as valid outside of the state.)

The judge acknowledged that he could not treat the Vermont civil union as a marriage, for it is clearly a different legal institution. But that would not necessarily preclude any relief, in his view. "Although plaintiff and defendant reside in New York and do not meet the residency requirements to commence an action in Vermont to dissolve their union, this decision does not conclude plaintiff has no civil New York remedy," wrote Judge Walker. "She must be afforded a legal avenue to accomplish the fair and equitable dissolution of her fractured relationship with defendant."

"The Vermont Family Court has been granted jurisdiction to dissolve a civil union in that state," observed Walker. "Vermont divorces are also heard by the Family Court. See Vermont VSA Title 15 sec. 1206. The parties may have a properly pleaded complaint for dissolution of the civil union heard by the New York State Supreme Court, which possesses the general jurisdiction to hear and decide all equitable civil actions, including actions which may also be heard by the Family Courts. NY Judiciary Law sec. 140-b. Defendant's motion to dismiss is granted without prejudice to plaintiff's right to file a verified complaint for dissolution of the Vermont Civil Union." Judge Walker also extended the stay of the eviction proceeding for an additional period of time to allow plaintiff to file her new petition.

Presumably, in exercising its equitable powers to dissolve a civil union, the Supreme Court might draw on the Divorce Law for principles on division of property, income and other assets to use in dissolving the civil union.

This decision marks a significant advance, since it is apparently the first in which a New York trial judge has asserted that the courts in this state can provide a forum for dissolving a civil union formed in another jurisdiction. Presumably Judge Walker would make a similar ruling were the petitioner a member of a New Jersey civil union, and perhaps from the several states that provide equivalent domestic partnerships as well. Of course, there are already some trial court decisions, cited in the opinion, that assert jurisdiction to consider divorce petitions from same-sex couples who were actually married out-of-state.

Read the original article in Leonard Link