Same-Sex Marriage Update

Currently, Massachusetts is the only state in the nation that permits same-sex marriage. Civil unions are available to same-sex couples in Vermont, Connecticut and New Jersey. Proponents of same-sex marriage rights argue that civil unions are not “separate but equal” rights.

In fact, in Matter of Langan v State Farm Fire & Cas., 48 AD3d 76, 849 NYS2d 105 (3d Dept 2007), the court found that the surviving member of a Vermont civil union did not have standing as “legal spouse” of the deceased employee so as to entitle him to spousal survivor death benefits under the New York Workers’ Compensation Act since parties to civil unions are not spouses.

In 2006, the New York Court of Appeals ruled that same-sex couples do not have a constitutional right to marry, but the issue could be taken up by the Legislature. Last year, then-governor, Eliot Spitzer became the first governor in the country to introduce same-sex marriage legislation. The bill passed the Democrat-controlled Assembly in June, 2007, but Republicans who control the Senate have refused to consider the legislation.

Massachusetts has a law (virtually unknown until enforced by then-Gov. Mitt Romney) that provides that unless you live in Massachusetts, you can’t go there and get married. However, based on the most recent same-sex marriage cases, gay couples can go to most of Canada, Spain, the Low Countries, or Scandinavia, and return to New York to have those marriages recognized.

Canadian same-sex marriage is recognized in New York by the Second and Fourth Departments
Martinez v County of Monroe, 850 NYS2d 740 (4th Dept 2008)

In a unanimous decision, the Fourth Department ruled that marriages of same-sex couples entered into outside of New York must be recognized in New York. This is the first appellate court decision in the state and the first known decision in the country to hold that a valid same-sex marriage must be recognized here.

A lesbian couple was married in Canada, but the plaintiff’s employer, a community college, refused to recognize the marriage and would not extend health care benefits to her spouse. Later, the college extended benefits through a domestic partnership benefit plan. The plaintiff sued, claiming that failure to recognize her marriage violated the New York State Constitution’s equal protection requirement and the state Human Rights Law’s prohibition of sexual orientation discrimination in employment. The court below dismissed the case on summary judgment. The appellate court reversed, reasoning as follows:

For well over a century, New York has recognized marriages solemnized outside of New York unless they fall into two categories of exception: (1) marriage, the recognition of which is prohibited by the ‘positive law’ of New York and (2) marriages involving incest or polygamy, both of which fall within the prohibitions of ‘natural law.’ . . . Thus, if 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. Id at 742.

The court concluded that plaintiff’s marriage does not fall within either of the two exceptions to the marriage recognition rule. The New York legislature has not enacted any statute specifically forbidding the recognition of same-sex marriages performed elsewhere (i.e. pursuant to the federal Defense of Marriage Act), and thus the "positive law" exception does not apply. Also, the natural rule exception does not apply because "That 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,’ and that cannot be said here." Id. at 743.

The court distinguished the Court of Appeals’ Hernandez case, stating that the case only stands for the proposition that the New York Constitution does not compel state recognition of same-sex marriages solemnized in New York. The court noted that New York has not chosen to enact legislation denying full faith and credit to same-sex marriages validly solemnized in another state pursuant to the federal Defense of Marriage Act, and therefore it is not against New York’s public policy to recognize valid same-sex marriages entered into in another jurisdiction.

Author’s note: The court’s matter-of-fact assertion that same-sex marriage does not offend the public’s sense of morality “to a degree regarded generally with abhorrence” is a victory for supporters of same-sex marriage, but may be astonishing to those who argue against it on grounds of traditional religiously-based morality.

Funderburke v New York State Department of Civil Service, 2008 NY slip op 2789, 2008 NY App Div LEXIS 2753 (2d Dept March 25, 2008)

In my previous column, the case Funderburke v New York State Department of Civil Service, 13 Misc3d 284, 822 NYS2d 393 (Nassau County Sup Ct 2006) was discussed. In that case, a school teacher was denied health insurance benefits to his same-sex spouse despite his Canadian same-sex marriage. While the plaintiff’s appeal was pending, the Department of Civil Service changed its policy, and effective May 1, 2007,it will respect out-of-state marriages of same-sex couples for the purposes of extending spousal medical insurance benefits to current and retired state and local government employees.

The department's agreement resolved the issue itself, and therefore the appeal was moot. However, Lambda Legal argued that the lower court's decision still technically stood and createds confusion about the status of the couple's marriage and of state law. The appellate court agreed, and therefore vacated the lower court’s decision.

New York’s first gay divorce
Beth R v Donna M, 853 NYS2d 501 (NY County Sup Ct 2008) (Drager, J.)
A lesbian couple was married in Canada. The defendant gave birth to two children by artificial insemination, both before and after the parties married. The plaintiff did not adopt the children, but she was named on the children’s birth certificates as the parent. Defendant held out plaintiff to the world, and to the children, as their parent. The children were given plaintiff's last name. The older child was encouraged to call plaintiff "mom" and plaintiff's relatives by familial titles. (The other child was an infant) The extended families of each party were encouraged to treat plaintiff as a parent. Defendant held out plaintiff as a parent to the children's nanny, doctor, teachers, and school administrators. Defendant accepted health insurance and financial contributions from plaintiff for the benefit of the children

Plaintiff brought a divorce action against defendant. Defendant moved to dismiss the action on the grounds that the same-sex marriage was void under New York Law, and that plaintiff had no standing to continue a relationship with the children. In her cross-motion, plaintiff requested that the court determine whether plaintiff had continuing custodial rights and support obligations for the children.

Defendant's motion to dismiss was denied and plaintiff's cross-motion was granted to the extent that the parties were directed to appear for a court conference to address the custodial issues of this action. The court relied on Matter of Shondel 7 NY3d 320, 820 NYS2d 199 (2006) and Jean Maby H v Joseph H, 246 AD2d 282, 676 NYS2d 677 (1996), both equitable estoppel cases: “If the concern of both the legislature and the Court of Appeals is what is in the child's best interest, a forumlaic approach to finding that a ‘parent’ can only mean a biologic or adoptive parent may not always be appropriate.” Id. at 518. The court reasoned as follows:

A child by the age of three (the age of defendant’s child) clearly identifies with parental figures. The abrupt exclusion of a parental figure may be damaging to the emotional well being of that child. Although only an infant, it is conceivable that S.R. might suffer emotional consequences as well and she may well be considered the legitimate child of both parents having been born during the marriage. Certainly both children might suffer financial consequences due to the loss of support that would be available to them from Plaintiff. The best interests of the children require exploration of their custodial and support needs as between the parties to this action. DRL 70. Id. at 521-522.

Other Cases of Interest

Clause in separation agreement barring conversion divorce for five years found unconscionable and void as against public policy
P.B. v L.B., 19 Misc3d 186 (Richmond County Sup Ct 2008) (Silber, J.)

The parties entered into a separation agreement which provided, inter alia, that the husband could not seek a divorce until five years after the execution of the agreement without the wife’s prior written consent. Without the wife's consent, the husband filed for a conversion divorce one year after the execution of the agreement. The wife moved to dismiss the case. The court denied the motion, finding the provision at issue unconscionable and against public policy. Unlike other provisions in the agreement, the provision at issue was not reciprocal as the wife was not barred from pursuing a divorce within the five-year period. Pursuant to DRL 170(5), (6), the right to divorce is absolute after a separation of a at least one year following the execution of the separation agreement, and the statute does not specify that a separation agreement can contain waivers of a party’s fundamental right to seek a divorce after one year.

Child Support
Where child support order expires in issuing state, mother lacks subject matter jurisdiction to bring new child support application in New York
Matter of Spencer v Spencer, 10 NY3d 60 (2008)
As part of the parties' Connecticut divorce, the court entered a child support order, which obligation terminated upon the child reaching the age of majority, 18. The mother moved to New York and filed a motion for child support after the son turned 18. The appellate court found that since the Connecticut child support order had expired, there was no existing order to modify and thus no jurisdictional obstacle to entertain the mother's motion for a new child support order. The Court of Appeals reversed. Under both the Uniform Interstate Family Support Act, FCA 580-101 and the Full Faith and Credit for Child Support Orders Act 28 USC 1738B, since the father continued to reside in the issuing state, Connecticut retained continuing, exclusive jurisdiction of its support order and New York had no subject matter jurisdiction to modify it. The New York order changed the amount, scope, and duration of the Connecticut order, which was therefore a "modification" of that order. Even if New York had jurisdiction to modify the initial order, Connecticut law still controlled the duration of the father's support obligation.

Father mandated to support child born by artificial insemination despite parties’ agreement absolving him of such responsibility
Laura WW v Peter WW, 2008 NY slip op 3266, 2008 NY App Div LEXIS 3173 (3d Dept April 11, 2008)

During the parties’ marriage, after the parties had two children, the husband had a vasectomy. Thereafter, the wife became pregnant through artificial insemination without the husband’s written consent, and the parties separated a few months into the pregnancy. Their separation agreement included a provision that the husband would not be financially responsible for the third child. The trial court found that provision to be against public policy and held that the husband was the child's legal father. The appellate court affirmed, reasoning that it is not in the child’s best interest to leave the child fatherless and without financial support and the father expressed his implied consent to the procedure.

The husband argued that DRL 73 is a defense to his responsibility since he did not sign a doctor’s authorization. DRL 73 provides as follows:
Any child born to a married woman by means of artificial insemination performed by persons duly authorized to practice medicine and with the consent in writing of the woman and her husband, shall be deemed the legitimate, natural child of the husband and his wife for all purposes. . . . The aforesaid written consent shall be executed and acknowledged by both the husband and wife and the physician who performs the technique shall certify that he [or she] had rendered the service.
The court found that the statute is inapplicable to this situation as follows:
It is clear that the overriding purpose of the statute is to give certainty to the legitimacy of those children conceived via AID whose parents complied with all of the statutory prerequisites, rather than to create a means of absolving individuals of any responsibility toward a child, even if the proof could otherwise establish that the individual participated in and consented to the decision to create the child. Id at 3.

The court found that the husband expressed his implied consent because he signed a frozen donor semen specimen agreement, the husband made arrangements for the wife to go to her doctor’s appointment, the husband did not tell the wife that he would refuse to acknowledge the child if she went through with the procedure, the parties’ separation agreement stated that the child was born by artificial insemination by mutual consent, and the husband acknowledged that he would have accepted the child had the parties stayed together.

The husband's assertion that his wife forced him to sign the donor agreement by threatening to leave him did not sway the court because such situation is no different than a husband who creates a child by natural methods in an attempt to salvage a troubled marriage.
Relocation granted
Bruno v Bruno, 47 AD3d 606, 849 NYS2d 598 (2d Dept 2008)
The court below’s grant to the mother to relocate with the child to Florida was upheld on appeal because she proved by a preponderance of the evidence that the move would enhance the child's life economically, socially, and educationally. (The court does not state the facts that led to this conclusion.) This conclusion was reached despite that the forensic psychologist found that the move would affect the child emotionally and recommended against relocation. The court was not required to accept the psychologist’s conclusions or recommendations. It found that the psychologist was “woefully under-informed" in concluding that the father had benefitted from his psychotherapy and anger management courses and was no longer a threat to the mother, especially since the court observed the father’s demeanor and noted "numerous occasions the court had to admonish Defendant for his gestures, glaring and facial expressions and utterances directed at Plaintiff during her testimony." Id. at 600

Matter of Smith v Bonvicino, 2008 NY slip op 3226, 2008 NY App Div LEXIS 3106 (2d Dept April 8, 2008)
The mother was granted leave to relocate with the child to Oklahoma. The court found it was in the child’s best interest because the move will allow the child to benefit from an enhanced relationship with her half-brother and the improved economic opportunities for the mother.

Author’s note: These relocation cases are troubling because not enough facts were stated to use them as precedence. Moreover, the court seems to imply that daily e-mailing and/or extended visitation somehow makes up for the loss of a daily interactive relationship.

Legal Fees
Counsel’s retainer is secured by jointly owned marital residence
Iriarte v Iriarte, 2008 NY slip op 28087, 2008 NY Misc LEXIS 1182 (Orange County, March 13, 2008) (Giacomo, J)

The husband was a stockbroker, earning approximately $300,000/year and claimed that he had been laid off, and has been unable to secure new employment. The wife was a hair colorist, earning less than $10,000/year. The wife sought to change counsel shortly before the case was to go to trial. Her new counsel requested a $40,000 retainer, anticipating that this would pay for the cost of the litigation. The wife had only $15,000 to pay towards the retainer, and therefore counsel made the retainer agreement contingent upon his securing the balance ($25,000) by court approval pursuant to 22 NYCRR 1400.5 to file a lien against the marital residence.
The husband opposed, claiming that the proposed mortgage lacks consideration since the wife’s counsel has not performed any legal services. The court considered such argument irrelevant, and granted the application, since the NYCRR does not specifically prohibit a retainer application. The court considered that the wife had no other resources from which to pay her counsel and that the large equity in the marital residence will most likely be shared by both parties, particularly in light of the 26 year marriage.
The court’s approval of security was based, in part, on protecting the wife’s ability to secure counsel and level the proverbial playing field.
despite DRL 237 and its provision for interim fees, both judges and lawyers recognize that in most cases a matrimonial lawyer who undertakes to represent a “non-monied” spouse, may never be compensated. Thus it can be difficult for the non0monied spouse to obtain counsel without a very substantial retainer and, in some cases, this can only be obtained via a lien on the marital assets. Id. at 1182.

Author’s note: Kudos to the court for protecting non-monied spouses and ensuring that their attorneys are paid.

ABOUT THE AUTHOR: Wendy B. Samuelson
Wendy B. Samuelson is a partner of the law firm of Samuelson, Hause & Samuelson, LLP, located in Garden City, New York. She has written literature for the Continuing Legal Education programs of the New York State Bar Association and the Nassau County Bar Association. She authored two articles in the New York Family Law American Inn of Court's Annual Survey of Matrimonial Law. Ms. Samuelson has also appeared on the local radio program, "The Divorce Law Forum." She was recently selected as one of the Ten Leaders in Matrimonial Law of Long Island for the under age 45 division.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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