Information About New York Divorce and Family Judges

Decided: October 14, 2008

Justice Rosalyn Richter

NEW YORK COUNTY
Supreme Court

DECISION AND ORDER

The parties, a same sex couple, were married in Massachusetts in a civil ceremony on August 26, 2005. At the time of their marriage, they were residents of New York. They have provided this Court with a copy of their Certificate of Marriage which was recorded with a town clerk in Massachusetts.

Earlier this year, the parties filed for divorce in this Court and an inquest on grounds was held. Although there was no opposition to the holding of the inquest, a question arose as to whether this Court had jurisdiction to grant a divorce to the parties since they could not, as a same sex couple, at the time of their marriage or now, get married in New York State. Because the question of subject matter jurisdiction cannot be waived or conferred on the Court by consent and can be raised at any point in the proceeding, see generally, Matter of Fry v. Village of Tarrytown, 89 N.Y.2d 714 (1997); Moulden v. White, 49 A.D.3d 1250 (4th Dept. 2008); Matter of Lorenzana v. Arafiles, 297 A.D.2d 679 (2d Dept. 2002); Graham v. New York City Housing Authority, 224 A.D.2d 248 (1st Dept. 1996), the Court requested briefing on this jurisdictional issue. The parties have submitted a joint memorandum of law requesting that this Court grant a divorce in this matter once the ancillary issues of custody and finances are resolved.¹

In Martinez v. County of Monroe, 50 A.D.3d 189 (4th Dept.), appeal dismissed, 10 N.Y.3d 856 (2008), the Appellate Division held that the recognition of a same sex marriage solemnized abroad was not contrary to the public policy of this State even if the marriage could not be solemnized in New York. In Martinez, the parties had been married in

Canada

and were seeking to have their marriage recognized here for the purpose of receiving spousal health benefits. As the Martinez court held, "[I]f a marriage is valid in the place where it was entered, 'it is to be recognized as such in the courts of this State, unless contrary to the prohibitions of natural law or the express prohibitions of a statute.'" Martinez, 50 A.D.3d at 191, quoting Moore v. Hegeman, 92 N.Y.521, 524 (1883). It is undisputed that the New York State legislature has not enacted any statute that would prohibit recognition of a same sex marriage from another jurisdiction, nor is there any constitutional amendment barring recognition of such marriages. Thus, there is no positive law that would bar granting of a divorce in this case. Moreover, as the Martinez decision correctly notes, the natural law exception "has generally been limited to marriages involving polygamy or incest or marriages 'offensive to the public sense of morality to a degree regarded generally with abhorrence.'" 50 A.D.3d at 192, quoting Matter of the Estate of May, 305 N.Y. 486, 493 (1953) (upholding out of state marriage between uncle and niece). Neither party cites any precedent nor has this Court found any in this jurisdiction that would warrant inclusion of same sex marriages from other jurisdictions in the very narrow public policy exception established by the existing case law.

A similar result was reached in Beth R. v. Donna M., 19 Misc.3d 724 (Sup. Ct. N.Y. Cty. 2008), in which a judge of this court concluded in a thoroughly researched decision that the common law doctrine of comity required recognition of a same sex Canadian marriage for divorce purposes. In that decision, the court noted the numerous other types of marriage, including common law marriages, that would not be valid if they occurred in New York, but which are recognized by New York if they are valid out of state marriages. Indeed, it is well-settled that in deciding whether to recognize a marriage that occurred in a sister state, the critical question is whether the marriage would be valid where contracted. See, e.g., Matter of the Estate of Catapano, 17 A.D.3d 672 (2d Dept. 2005)(common law marriage); Katebi v. Hooshiari, 288 A.D.2d 188 (2d Dept. 2001)(common law marriage); Lancaster v. 46 NYL Partners, 228 A.D.2d 133 (1st Dept. 1996)(common law marriage); Fernandes v. Fernandes, 275 A.D.777 (2d Dept. 1949)(marriage by proxy). This Court concurs with the analysis in Beth R. and sees no reason to distinguish between the Canadian marriage in that case and the Massachusetts marriage here.

In Godfrey v. Spano, 15 Misc.3d 809 (Sup. Ct. Westchester Cty. 2007), the trial court analyzed the principles of comity discussed herein and upheld an Executive Order issued by the Westchester County Executive that required departments and agencies in that County to recognize for benefit purposes same sex marriages lawfully entered into outside the State of New York in the same manner as they recognize opposite sex marriages. The court in Godfrey noted that New York has long recognized out of state marriages, valid where contracted, even when the purpose was to evade New York laws proscribing such marriages. It is important to note that one of the lower court cases whose reasoning was rejected by the Godfrey court, Funderburke v. NYS Department of Civil Service, 13 Misc.3d 284 (Sup. Ct. Nassau Cty. 2006), was dismissed as moot on appeal earlier this year based on a change in policy of the State Department of Civil Service, as discussed below. See Funderburke v. NYS Department of Civil Service, 49 A.D.3d 809 (2d Dept. 2008). Thus, the Funderburke trial court decision, which was vacated by the Second Department decision, cannot be used as precedent and in any event, would not be binding on this Court.²

In Gonzalez v. Green, 14 Misc.3d 641 (Sup. Ct. N.Y. Cty. 2006), a judge of this court, in a divorce action, interpreted the decision of the New York Court of Appeals in Hernandez v. Robles, 7 N.Y.3d 338 (2006), as prohibiting recognition of a same sex Massachusetts marriage and declared the marriage null and void. This conclusion cannot be reconciled with the subsequent holding of the Fourth Department in Martinez, and in any event, this Court respectfully declines to adopt this aspect of the holding in Gonzalez. In fact, the Fourth Department in Martinez explicitly concluded that Hernandez "holds merely that the New York State Constitution does not compel recognition of same-sex marriages solemnized in New York," 50 A.D.3d at 192 (emphasis in original), and they rejected the argument that Hernandez created a public policy exception to the recognition of valid foreign marriages. The analysis in Martinez is consistent with this Court's reading of the Hernandez case. The Court of Appeals in Hernandez relied on the core principle of legislative deference in concluding that New York's constitution did not mandate the granting of marriage licenses to same sex couples in this State. The Court noted that it was not for them "to say whether same-sex marriage is right or wrong," but rather it concluded that the issuance of licenses in this State to same sex couples must be explicitly authorized by the legislature. 7 N.Y.3d at 366. There is nothing in the holding of Hernandez to suggest that the Court of Appeals intended to place same sex marriages, validly authorized by other states or countries, into the narrow category of abhorrent conduct for which comity or full faith and credit should not apply in a divorce proceeding.

Indeed, recent developments lead to the conclusion that recognition of these marriages is, in fact, consistent with public policy. Following the issuance of the Martinez decision, Governor David Paterson issued an executive directive to all state agency counsels asking them to conduct a review of agency policy statements and regulations to ensure that terms such as "spouse," "husband" and "wife" are construed in a manner that encompasses legal same sex marriages. The directive notes "agencies that do not afford comity or full faith and credit to same-sex marriages that are legally performed in other jurisdictions could be subject to liability." Furthermore, the State Department of Civil Service recently changed its policy regarding recognition of out of state and foreign same sex marriages, and now requires public employers within its jurisdiction to provide spousal benefits to same sex couples validly married in another jurisdiction.³ Although ultimately the determination of whether the marriage at issue in this case should be accorded comity or full faith and credit is a legal issue, the political developments cited above support the conclusion that recognition of the parties' out of state marriage would be consistent with the State's current policy direction.

The decision of the Rhode Island Supreme Court in Chambers v. Ormiston, 935 A.2d 956 (Sup. Ct. R.I. 2007), is distinguishable from the instant case and in any event, would not be binding on this Court. In Chambers, the court held that the Rhode Island Family Court, as a court of limited statutory jurisdiction, could not grant a divorce petition involving a same sex couple who were married in Massachusetts. The Chambers court concluded that the concepts of full and faith and credit or comity were not applicable because the Family Court as a court of limited jurisdiction could only exercise the powers granted to it by the legislature, which did not include the power to divorce a same sex couple. The Supreme Court in New York is a court of general jurisdiction and has the power to grant a divorce even if the marriage could not lawfully occur in this State. Moreover, as the dissent in Chambers correctly notes, it is a well established principle that the validity of a marriage is determined by the place where the marriage is celebrated. See generally, Mott v. Duncan Petroleum Trans., 51 N.Y.2d 289 (1980); Matter of the Estate of May, 305 N.Y. at 486; Van Voorhis v. Brintnall, 86 N.Y.18 (1881).

The remaining question is whether the parties' marriage in Massachusetts is invalid by virtue of the fact that they were both non-residents of Massachusetts at the time they were married. The parties, in the memorandum submitted to this Court, assert that the answer to this question is controlled by a series of decisions from the Massachusetts courts concerning the rights of non-resident same-sex couples to marry in that state. In Cote-Whitacre v. Dept. of Public Health, 446 Mass. 350 (Sup. Ct. Mass. 2006), the Supreme Judicial Court considered a challenge to a 1913 Massachusetts law, Mass. G. L. c. 207, Â§Â§11, 12, which barred non-residents from marrying in that state if the marriage would be void if contracted in their home state.⁴ The Supreme Judicial Court upheld the law but remanded the matter back to the Superior Court to determine whether same sex marriage was "prohibited" in New York.⁵ The parties in Cote-Whitacre agreed that question would be determined by the resolution of the then-pending New York Court of Appeals decision in Hernandez v. Robles, 7 N.Y.3d at 338.

Following the New York Court of Appeals ruling in Hernandez, the Massachusetts Superior Court, on remand, held that same sex marriage was "prohibited" in New York. Cote-Whitacre v. Dept. of Public Health, 2006 Mass. Super. LEXIS 670 (Super. Ct. Mass. 2006)(Connolly, J.). However, in a decision dated May 10, 2007, Justice Connolly issued a further order clarifying that "same-sex marriage only became 'prohibited' in New York on July 6, 2006," which is the date of the Court of Appeals decision in Hernandez. Cote-Whitacre v. Dept. of Public Health, 2007 Mass. Super. LEXIS 149 (Super. Ct. Mass. 2007)(Connolly, J.). Here, the parties were married on August 26, 2005, at a time when, according to the Massachusetts court, same-sex marriage was not yet "prohibited" in New York.⁶ This Court therefore concludes that the fact that the parties were non-residents of Massachusetts at the time they were married does not render the marriage invalid under then-existing Massachusetts law. See Mass. G. L. c. 207, Â§Â§11, 12.⁷

The purpose of the full faith and credit provision of the constitution and the doctrine of comity is to accord parties, especially in today's mobile society, the ability to ensure that if they were married in another state, they can enforce the civil contract of marriage in New York. This Court's research and the cases cited by the parties provide no reason to carve out a unique exception for the parties here simply because they are of the same gender or because of their sexual orientation. As the Court of Appeals noted in Gotlib v. Ratsutsky, 83 N.Y.2d 696, 700 (1994), "[t]he comity doctrine is also pragmatically necessary to deal properly and fairly with the millions of relational and transactional decrees and determinations that would otherwise be put at risk, uncertainty and undoing in a world of different people, Nations and diverse views and policies." Accordingly, for all the reasons set forth above, no basis exists to decline to exercise jurisdiction over the dissolution of the parties' Massachusetts marriage and this New York divorce action can proceed.

This constitutes the decision and order of the Court.

1. There is no issue in this case concerning the standing of both parents because there was a second parent adoption.

2. The appellate decisions in Langan v. State Farm Fire & Casualty, 48 A.D.3d 76 (3d Dept. 2007) and Langan v. St. Vincent's Hospital of N.Y., 25 A.D.3d 90 (2d Dept. 2005), also do not bar the result reached here because those cases involved a Vermont civil union. In concluding the surviving partner was not a "surviving spouse" for purposes of the applicable New York law, both the Second and Third Departments noted that the parties had not married.

3. In Golden v. Paterson, 2008 N.Y. Misc. LEXIS 5838 (Sup. Ct. Bronx Cty. 2008), the court rejected a challenge to the legality of Governor Paterson's executive directive. See also, Lewis v. NYS Dept. of Civil Service, 2008 N.Y. Misc. LEXIS 1623 (Sup. Ct. Albany Cty. 2008) (upholding civil service policy recognizing as spouses parties to same sex marriages from other jurisdictions where such marriages are legal); Godfrey v. Hevesi, 2007 N.Y. Misc. LEXIS 6589 (Sup. Ct. Albany Cty. 2007)(upholding policy of State Comptroller to recognize for retirement benefit purposes Canadian same sex marriage).

4. In July of this year, the Governor of Massachusetts signed legislation repealing the 1913 law.

5. The term "prohibited" is the term used by the Massachusetts courts in the Cote-Whitacre line of cases.

6. The parties also point out that even if this Court were to determine that the First Department decision in Hernandez v. Robles, 26 A.D.3d 98 (1st Dept. 2005), set the date for determining whether the parties' marriage would have been "prohibited" in New York, the marriage here would be valid because it occurred before the First Department opinion was issued on December 8, 2005.

7. The Gonzalez decision, discussed earlier in this opinion, was issued before the 2007 decision on remand in Cote-Whitacre. This provides another reason to distinguish the Gonzalez case.