Opinion
2741/05.
Decided July 13, 2006.
McCormack Phillips Esqs., Attorneys for Plaintiff.
Richard Feinberg, Esq., Attorney for Defendant.
Plaintiff ("wife") commenced this action for divorce on April 26, 2005. Approximately a month later, Defendant ("husband") commenced a similar action against the Plaintiff in the State of New Jersey. After Defendant's default in the New York action, this Court granted Defendant's motion to vacate the default and held a hearing on Defendant's motion to dismiss Plaintiff's complaint for lack of jurisdiction.
The issue before the Court is whether the husband has been a resident of New York State for a sufficient period of time to satisfy the residency requirements of section 230 of the Domestic Relations Law.
Plaintiff, a resident of New Jersey, contends that Defendant is a resident of New York. The husband contends that he was a resident of New Jersey from in or about November 1999 until he and his wife separated in March of 2005 when he moved to Rockland County to live with his parents.
At the hearing, the wife testified that the husband moved out of their New Jersey residence in late 2000 or early 2001. In contrast, the husband testified that the parties resided together in New Jersey until in or about March 2005, when he was asked to leave. Notwithstanding the apparent disagreement of when the parties formally separated, it is acknowledged that the parties continued to maintain a relationship. In fact, the parties had a second child in 2002.
The parties married on April 3, 1997 in a civil ceremony in Rockland County, New York and a religious wedding ceremony was later held in New Jersey. For approximately two years after their marriage, the parties lived in New York with Defendant's father. That period of residency ended when the wife's father died and the parties moved to New Jersey to live with the wife's newly widowed mother.
The parties returned to New York to live with the husband's father in July 1999 while awaiting the birth of their first child. That period of residency in New York lasted for approximately two months before the parties returned to New Jersey.
There was unrefuted testimony that the husband lived in Chicago in 2003 and 2004 while doing a medical internship as part of his pursuit of a medical license and Defendant listed New York as his state of residence in his apartment lease.
The husband also testified that subsequent to their marriage, he attended two medical schools one in Mexico and one in the Caribbean — and when not at medical school or his residency in Chicago, he resided with his wife and children in New Jersey.
In support of Plaintiff's claim that the husband was and continues to be a resident of New York State, there was testimony that the husband was first issued a New Jersey driver's license in 2004 and prior to that time he was a New York State licensee. The wife presented documents from the insurance company that insured the parties' automobile that established that the parties would not be permitted to maintain their current automobile policy unless Defendant first obtained a New Jersey driver's license. It is the wife's contention that Defendant only changed his residence address and obtained a New Jersey driver's license so the automobile insurance would not be cancelled.
Income tax returns indicating the Defendant's filings in New Jersey were introduced into evidence and established the parties filed joint returns subsequent to the time Plaintiff contends the parties separated. Further admitted into evidence was a hard' copy of an April 8, 2005 e-mail from Plaintiff to Defendant suggesting that the parties file federal income tax returns together in New Jersey.
Other documents submitted into evidence include credit card statements, telephone bills, repair shop receipts, etc., all of which list Defendant's residence address in New Jersey and copies of bank statements showing the parties maintained joint bank accounts in New Jersey and in New York.
In further support of Plaintiff's contention that Defendant is and has been a resident of New York, investment account statements and medical school invoices were submitted into evidence that were addressed to Defendant at the home of Defendant's father in (Rockland County) New York.
The husband voted in the general elections of 2000 and 2004 in New York State. In his October 4, 2004 application requesting an absentee ballot for the November 2004 general election he represented that New York State was his state of residence.
Sections 230 subdivisions (1), (2) and (5) of the Domestic Relations Law provide that an action for divorce may be maintained when:
"1. The parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
2. The parties have resided in this state as husband and wife and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
5. Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action."
The literal definition of "residence", requires only bodily presence as an inhabitant of a place (Black's Law Dictionary). Traditionally, courts concluded that proof of dwelling continuously within New York State for the requisite time period fulfills the durational residency requirements for maintaining a matrimonial action (citations omitted). However, more recently courts have also held that the duration of one's physical residence in this State is not the "sole barometer" or test for determining compliance with Domestic Relations Law § 230 ( Unanue v. Unanue, 141 AD2d 31, 532 NYS2d 769, 2nd Dept., 1988; Bourbon v. Bourbon, 259 AD2d 720, 687 NYS2d 426, 2nd Dept., 1999; Capdevilla v. Capdevilla, 149 AD2d 312, 539 NYS2d 365, 1st Dept., 1989). In Unanue, supra, the Appellate Division, Second Department determined that the term "residence" as used in Domestic Relations Law § 230 is synonymous with the term "domicile". ( Silvers v. Silvers, 57 AD2d 948, 395 NYS2d 95; Lacks v. Lacks, 50 AD2d 785, 378 NYS2d 61, affd.41 NY2d 71, 390 NYS2d 875, 359 NE2d 384, supra; other citations omitted.) Consequently, the Appellate Division concluded, that the durational residency requirements may be satisfied by either the traditional method of proving that a party has been domiciled or, in the alternative, has resided in New York State for the continuous period of time specified in the applicable subdivision of Domestic Relations Law § 230.
It is a longstanding rule in New York State that domicile, once established, is presumed to continue until such time as there is an intention to change it and some action is taken in furtherance of that intention. ( Matter of Newcomb, 192 NY 238, 250, 84 N.E. 950; Delvaille v. Delvaille, 87 Misc 2d 726, 728, 386 NYS2d 195; Cocron v. Cocron, 84 Misc 2d 335, 345, 375 NYS2d 797, supra; Matter of Marshall, 57 Misc 2d 419, 423, 292 NYS2d 973; Ruderman v. Ruderman, 193 Misc. 85, 82 NYS2d 479 affd.275 App Div 834, 89 NYS2d 894).
Upon a review of the instant record, the Court finds that the Plaintiff has established compliance with the durational residency requirements of Domestic Relations Law § 230(1)(2) and (5). In this case, there is adequate evidence manifesting an absolute and fixed intention on Defendant's part not to abandon New York State as his permanent home, including his voting in New York in the 2000 and 2004 general elections and his listing his residence address as New York on the Chicago apartment lease. His temporary residences in Chicago, Mexico or the Caribbean in the furtherance of his medical license were no more an expression of his intent to shift domiciles to those locations than his intermittent residences with his wife in New Jersey after the death of Plaintiff's mother. Accordingly, Defendant's motion to dismiss Plaintiff's complaint is DENIED.
Submit order.
A Preliminary Conference in this matter will be held on July 27, 2006 at 9:30 am.