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New York Judge Waives Residency Requirement for Divorcing Polish Gay Couple

Posted on: November 2nd, 2017 by Art Leonard No Comments

New York’s Domestic Relations Law, Section 230, sets residency requirements for married couples seeking to divorce in the state, which vary in length – one or two years — depending upon whether they were married in New York and have lived in the state continuously. This creates a problem for out-of-state same-sex couples who come to New York to marry and then return to a home jurisdiction that does not recognize same-sex marriages.  The problem is compounded, of course, if they want to divorce without at least one of them establishing residency in New York.  This is the problem faced by Andrej Gruszczynski and Wiktor Jerzy Twarkowski, Polish citizens who were married in the New York City Clerk’s Manhattan Marriage Bureau on December 6, 2013, having traveled to New York specifically to get married, and then returned to their home in Warsaw.  After a few years of marriage, they “mutually decided that they did not want to remain married to one another,” writes Justice Matthew F. Cooper in Gruszczynski v. Twarowski, 2017 N.Y. Slip Op. 27348, 2017 WL 4848485 (N.Y. Supreme Ct., N.Y. Co., Oct. 26, 2017), “but because Poland does not recognize same-sex marriage in any form, the parties could not turn to their local courts to obtain a divorce.”

They sought legal advice, and were counseled to file for divorce in New York. Gruszczynski’s attempt to do so by filing the papers in New York County’s “uncontested matrimonial calendar” in September 2016 was rejected by the Matrimonial Clerk.  The complaint for divorce alleges that there are no children, no assets to divide, no requests by either spouse for spousal maintenance, and no contest by the parties, who are mutually agreed that they should divorce.  All they desired was that a judge sign an order dissolving the marriage, with the only ground cited for divorce being “irretrievable breakdown of the relationship” by their mutual agreement to end it.  But the Clerk found that as both spouses reside in Poland, the statutory residential requirement of one year applicable to their situation acts as a bar, and the Clerk refused to accept the filing.

Their lawyer, Livius Ilasz, then filed a motion with Justice Cooper, seeking an order permitting an uncontested divorce despite the lack of residence. In affidavits accompanying the motion, both parties described how they traveled to New York City “specifically to avail themselves of this state’s right to marry, a right not afforded to them by their own country,” Cooper explained.  The men described “their need to avail themselves of New York’s no-fault divorce law so that they can dissolve a marriage that neither party wishes to continue,” wrote Cooper, and they “stress that if New York refuses to entertain the proceeding, they will face the prospect of being unable to find any forum in which they can be divorced.”  They called on the equitable powers of the court to waive the residency requirement and allow them to dissolve their marriage.

The case harkens back to the “wed-lock” phenomenon experienced by U.S. same-sex couples prior to June 26, 2015, when same-sex marriage (and, correlatively, divorce) became available in every state by judicial fiat from the Supreme Court. Reports surfaced in the media of occasional judges in non-equality states who were willing to bend the rules to help out local residents who had married out of state and needed to get a dissolution of a civil union, domestic partnership, or even a marriage.  But published decisions on the issue are scarce, so Justice Cooper’s effort may fill an important legal gap now for foreign nationals who come to the U.S. to marry and then return home.

“There are good reasons to allow this uncontested divorce action to proceed irrespective of the parties’ inability to meet the one-year residency requirement,” he wrote. He found that the plaintiff had made a “compelling argument that, under the circumstances presented here, a strict application of DRL Sec. 230 is inequitable and discriminatory.”  In an introductory portion of the opinion, the judge set out some background history, including how New York City had embarked on a promotional campaign after marriage equality became available in the state to lure out-of-staters to New York to get married, generating substantial additional business for the city’s hotel, restaurant, tourism and retail businesses.  Justice Cooper quotes a figure of a quarter of a billion dollars in extra business revenues during the first 12 months of the marriage equality era in New York, attributed to a statement issued in July 2012 by Mayor Michael Bloomberg.  Thus, New York was explicitly inviting people, such as the parties in this case, to come to New York to get married.

“Having accepted New York’s invitation to come and exercise their right to marry as a same-sex couple, the parties now find that they are being deprived of the equally fundamental right to end the marriage. Thus, they face the unhappy prospect of forever being stuck in their made-in-New York marriage, unable to dissolve it here or in their home country. Clearly, equity demands that the parties be spared such an excruciating fate,” Cooper wrote, noting a parallel decision by the Albany-based Appellate Division, 3rd Department (Dickerson v. Thompson, 88 App. Div. 3d 121 (2011)), authorizing a New York trial court to dissolve a Vermont Civil Union so that one of the civilly united parties would not have to move to Vermont to establish residency in order to terminate the relationship there.

Cooper explained the policy concerns that led New York to establish residency requirements for divorce. At a time when New York had liberalized its divorce law, there was fear that out-of-staters seeking to escape more demanding requirements in their home states (such as proving adultery by one partner, for example, for a fault-based divorce) would flock to New York to divorce, inundating the courts with the matrimonial contests of citizens of other states.  However, since those days divorce laws throughout the country have been dramatically altered to allow no-fault divorce everywhere – including, among the last to join the trend, recently in New York – so that the incentives to come to New York specifically to divorce – at least from elsewhere in the United States – have disappeared.  Given the current situation, wrote Cooper, “It is difficult to see how permitting plaintiff and defendant to pursue their uncontested divorce here would somehow open the floodgates to our courts.”  He pointed out that in the absence of any interest by Poland in adjudicating matrimonial issues for same-sex couples, New York is actually the jurisdiction having the most substantial interest in this marital relationship, which, after all, New York created.

“Basic fairness and social justice, along with the lack of any adverse impact on this state and its court system, all appear to be sufficient reasons to allow plaintiff to maintain this action for an uncontested divorce,” Cooper wrote. He also noted that some prior New York rulings had held that the residency provisions of Sec. 230 were not “a jurisdictional requisite” and, as the defendant was not objecting to the jurisdiction of the court based on the lack of residency of either party, the “defense” of lack of jurisdiction was effectively waived.

Granting the plaintiff’s motion, the court directed him to resubmit the uncontested divorce papers to the Matrimonial Clerk within 30 days, and the Clerk was directed to accept and forward the papers, “including the proposed judgment of divorce,” back to the judge’s chambers “for review and signature.” Nobody is going to appeal this ruling, so there will not be an appellate ruling that could create a binding precedent on trial courts, but Justice Cooper obviously took pains to write an opinion that would be a very persuasive precedent for future reference.

The Bitter-Enders in the World of Marriage Equality

Posted on: November 10th, 2015 by Art Leonard No Comments

When the Supreme Court says it’s done, then it’s done, right?  Well, not necessarily in Mississippi, where resistance to the impact and consequences of marriage equality lingers.  In recent days, the Mississippi Supreme Court has weighed in — sort of — on gay divorce, and a trial judge in Hinds County heard arguments about the state’s continuing ban on “same-sex” adoption.

The divorce case, Czekala v. State, No. 2014-CA-00008-SCT (Nov. 5, 2015), involves a lesbian couple who went to California during the freedom summer of 2008 and got married, then returned to continue living in Mississippi.  Lauren Beth Czekala-Chatham and Dana Ann Melancon separated on July 30, 2010 and Lauren filed a divorce action in the Chancery Court of Desoto County on September 11, 2013.  Why the wait?  This writer speculates that Lauren did not feel any urgency about filing for divorce so long as neither Mississippi nor the federal government recognized the marriage, but on June 26, 2013, the U.S. Supreme Court struck down the Defense of Marriage Act in the Windsor case and suddenly there were consequences under federal law if the marriage was not legally ended.

The problem was that Mississippi did not recognize the marriage.  For whatever reason of her own, Dana Ann decided to oppose the divorce, filing a motion to dismiss the case on the ground that her marriage was “null and void” in Mississippi.  Lauren responded with a motion to declare the state’s ban on recognizing the marriage unconstitutional.  This woke up the state, which moved to intervene to defend its marriage ban.  The chancery court judge upheld the marriage ban and dismissed the divorce petition.  Lauren appealed to the Mississippi Supreme Court, which heard oral argument on January 21, 2015, less then two weeks after the U.S. Supreme Court agreed to review the Obergefell v. Hodges case on marriage equality.

After the U.S. Supreme Court ruled on June 26 of this year, Lauren moved for an entry of judgment based on Obergefell.  If states cannot refuse to let same-sex couples marry or to recognize their marriages, she argued, then there was no reason for Mississippi to refuse to consider her divorce petition.  The attorney general agreed that under Obergefell the court should grant Lauren’s motion and send the case back to the chancery court.  This was enough for five members (a majority) of the court, which found that “no contested issues remain for resolution” and granted Lauren’s motion without further explanation.  This set off squabbling on the court, with four judges writing or agreeing with various objecting decisions and one judge writing a separate concurring statement joined by another.

The main points of contention were whether it was irresponsible of the court not to issue a full ruling on the merits, and further, at least on the part of two judges, whether the majority of the court had violated their oaths of office by following an “illegitimate” U.S. Supreme Court decision, which in turn drew responses from other judges on their duty to follow U.S. Supreme Court constitutional rulings.

Seizing upon irresponsible and intemperate statements by the four dissenting Supreme Court justices in Obergefell, Justices Jess H. Dickinson and Josiah D. Coleman insisted that Obergefell is an illegitimate ruling that should not be followed by the courts of Mississippi.  This extreme view is fanned by dozens of academics who have lent their names to a website instigated by Professor Robert P. George of Princeton University, an obsessive homophobe, under the title “Statement Calling for Constitutional Resistance to Obergefell v. Hodges.”  Using selective quotations from the four Obergefell dissents and out-of-context quotations by other historical luminaries, Prof. George and the dissenting Mississippi justices take seriously Chief Justice John Roberts’ parting shot in his dissent — that the decision has “nothing to do with the Constitution.”  If that is so, wrote Justices Dickinson and Coleman, then it would violate their oaths of office to comply with that ruling.  Dickinson included in his dissent the list of the signers on Prof. George’s website to support the argument that Obergefell is an “illegitimate” decision.

Even on the very conservative Mississippi Supreme Court this assertion drew only two votes.  Others objecting to the majority’s handling of the case would have preferred that the court issue a full ruling on the merits discussing the Obergefell case and explaining why its federal constitutional mandate would extend to striking down Mississippi’s marriage and recognition bans.  Indeed, one of the objecting judges included in his opinion the full text of what he would prefer the court to have issued as an opinion on the merits.  These judges argued that it was important for the state’s high court to explain for the benefit of the lower courts and the public about the current status of Mississippi law in light of Obergefell.

The lack of such affirmative guidance may be felt in the adoption litigation, where the state persists in arguing that it is not required to allow the same-sex spouse of a military service member to adopt their child who was born while the birth mother was living in Mississippi.  Attorney Roberta Kaplan, who represented Edith Windsor in the successful challenge to the Defense of Marriage Act, represents Donna Phillips and Jan Smith.  According to a news report about the case, Mississippi is the last state to have a statutory ban on same-sex couples adopting children, and the state is continuing to defend that ban in this case, even though it threw in the towel in the divorce case.

Phillips, the birth mother, happened to be stationed in Mississippi when she gave birth.  Now, as her spouse Jan Smith explained in an interview with WJTV on November 8, “We live our lives just like everyone else.  She was deployed. We struggled.  It was hurtful.  It was tough.  With that we just want the same protection that everyone has for their children.”  Said Phillips, “We want Jan’s name to be on our daughter’s birth certificate.  That’s all we are looking for, so she has equal rights to take care of her and to do what’s necessary for our daughter.”

Kaplan pointed out, “It’s very hard to say gay couples have the right to marry but they don’t have the right to adopt.”  But attorneys for the state insisted that the state’s ban remains constitutional, despite Obergefell, and urged the court to dismiss the case.  The judge reserved judgment at the end of the hearing, with no firm deadline for ruling on the case.

Divided Texas Supreme Court Evades Deciding Gay Divorce Issue

Posted on: June 23rd, 2015 by Art Leonard No Comments

With a ruling on same-sex marriage from the United States Supreme Court just days away, the Texas Supreme Court finally acted on June 19, 2015, on a pair of appeals argued nineteen months ago in November 2013, holding in State v. Naylor, 2015 Tex. LEXIS 581, that the state’s attorney general did not have standing to appeal an Austin trial judge’s order granting a judgment “intended to be a substitute for a valid and subsisting divorce” to a lesbian couple who had married in Massachusetts, and granting a motion to dismiss an appeal in In re Marriage of J.B. and H.B., in which the Texas Court of Appeals in Dallas had ruled in 2010 that Texas courts lack jurisdiction to rule on divorce petitions from same-sex couples married elsewhere.  The court’s opinion in the Naylor case by Justice Jeffrey V. Brown was joined by four other members of the court, one of whom also penned a concurring opinion.  One member filed a dissenting opinion for himself and three others, arguing against the ruling on standing.  One of the dissenters filed an additional dissenting opinion, arguing at length that the Texas ban on performing or recognizing same-sex marriages does not violate the 14th Amendment.  One member did not participate in the case.

The motion to dismiss the J.B. and H.B. appeal was actually filed by James Scheske, who represented the party seeking an uncontested divorce.  The two men married in Massachusetts in 2006 and moved to Texas in 2008.  Shortly after moving to Texas they ceased to live together, and J.B. filed a petition in Dallas County seeking a property division and that his last name be changed back to his original name as part of a divorce decree.  The state intervened and argued that the court had no jurisdiction to decide the case, but the trial judge, Tena Callahan, issued a ruling on October 1, 2009, holding that the Texas ban on same-sex marriage was unconstitutional and that she could decide the case.  The state appealed that ruling, and the Texas Court of Appeals in Dallas ruled on August 31, 2010, that Judge Callahan was wrong.  An appeal to the Texas Supreme Court followed, and the case was argued, after much delay, in November 2013.  But H.B. subsequently died, and Scheske filed an uncontested motion to dismiss the case, since his client’s marriage had been terminated by death so a divorce decree was no longer needed.  The court granted that motion on June 19 without explanation, but one of the judges noted in his concurring opinion in the Naylor case that the J.B. appeal was “moot” as a result of the death of one of the parties.

Angelique Naylor and Sabina Daly, Texas residents, went to Massachusetts to marry in 2004. Naylor filed a divorce petition in Travis County a few years later.  The women had a child and were operating a business together, so, as Justice Brown explained, “Naylor hoped to obtain a judgment addressing their respective rights, some of which they had already settled in a suit affecting the parent-child relationship.”  Although lawyers from the attorney general’s office were aware of the case and were actively monitoring its progress, they didn’t formally try to intervene until after the trial judge issued his bench ruling incorporating the parties’ settlement agreement into a judgment, which the judge explained “is intended to dispose of all economic issues and liabilities as between the parties whether they are divorced or not.”  The following day, the state petitioned to intervene “to oppose the Original Petition for Divorce and to defend the constitutionality of Texas and federal laws that limit divorce actions to persons of the opposite sex who are married to one another.”  The trial judge rejected this petition as too late, and the Court of Appeals in Austin agreed in 2011.  An appeal to the Texas Supreme Court followed, and it was consolidated with the J.B. appeal and argued on the same day in November 2013.

There was widespread speculation that the Texas Supreme Court, observing all the marriage equality litigation going on in Texas and elsewhere in the wake of the U.S. Supreme Court’s U.S. v. Windsor ruling, had decided not to rule on these appeals until the U.S. Supreme Court settled the constitutional questions around same-sex marriage one way or the other, so the Texas court’s June 19 actions caught many by surprise.  Writing for the majority of the court, Justice Brown agreed with the Court of Appeals that the state lacked standing to appeal the trial court’s judgment.  “Texas courts allow post-judgment intervention only upon careful consideration of any prejudice the prospective intervenor might suffer if intervention is denied, any prejudice the existing parties will suffer as a consequence of untimely intervention, and any other circumstances that may militate either for or against the determination,” he wrote.  In this case, by implication, those considerations weighed against ordering intervention.  Although Justice Brown left it unsaid, it seemed clear that the majority of the court saw little reason to litigate the underlying issue in this case when the U.S. Supreme Court was on the verge of ruling.  He devoted most of his opinion to a close analysis of Texas laws governing post-judgment intervention, and almost none to the underlying question whether same-sex couples can get divorces in Texas, merely stating general agreement with Judge Devine’s analysis described below.

In a concurring opinion, Justice Jeffrey S. Boyd explained further the underlying rationale for dismissing the appeal.  “I write separately to emphasize a point on which everyone agrees: the State of Texas is not bound by the divorce decree at issue in this case.”  He continued, “The State lacks standing to appeal because it was not a party, it shared no privity or interest with any party, and the trial court’s judgment is not binding on it. . .  As a non-party who is not bound by the judgment, the State has no obligation to give any effect to the trial court’s divorce decree.  In fact, it may be, as the State contends, that our laws prohibit the State and all of its agencies and political subdivisions from giving any effect to the decree.”  Since the state did not recognize the marriage in the first place, and had been taking the position all along in both cases that such out of state same-sex marriages are considered “void” in Texas, the decree was of no consequence to the state.  Judge Boyd’s opinion overlooks the plain fact that the trial judge had not even necessarily considered this to be a divorce decree, but rather a “judgment” incorporating a settlement agreement reached by the parties.   Judge Boyd did comment that the dismissal of the J.B. appeal as moot “leaves the Dallas court’s opinion as the only currently existing Texas law” on the issue whether same-sex couples married elsewhere can get a divorce in Texas, and that ruling, of course, was negative.

Justice Don R. Willett’s dissent argued strongly that the court should have allowed the State to intervene because of the importance of the question.  Justice John P. Devine’s dissent, quite lengthy, plunged into the constitutional merits and argued that the Texas ban on recognizing same-sex marriages from other jurisdictions did not violate the 14th Amendment.  In addition to relying on Section 2 of the Defense of Marriage Act, the provision that was left untouched by the U.S. Supreme Court in U.S. v. Windsor, which provides that states are not constitutionally required to recognize same-sex marriages from other states, he argued that Texas had good policy justifications for refusing to allow same-sex couples to marry and treating out-of-state same-sex marriages as void in Texas.

Ignorant comments by the governor and attorney general in response to the Naylor ruling led to misleading media reports suggesting that the Texas Supreme Court had “upheld” a same-sex divorce sought by Naylor, but clearly the court had done no such thing, merely holding that it was itself without jurisdiction to rule on the state’s argument that the trial court lacked jurisdiction.

Ultimately, these actions by the Texas Supreme Court will be of only passing interest after the U.S. Supreme Court’s ruling in Obergefell v. Hodges.

 

Indiana Appeals Court Says Spouse’s Gender Change Doesn’t Void an Existing Marriage

Posted on: December 21st, 2013 by Art Leonard No Comments

The Court of Appeals of Indiana ruled on December 20 that an existing different-sex  marriage is not rendered void when one of the spouses has obtained a legal judgment of gender change.  Reversing a ruling by Judge Valeri Haughton of the Monroe Circuit Court, Judge Paul Mathias wrote for the court in Davis v. Summers that this construction of the state’s ban on same-sex marriage would be “beyond the purview of our constitutional authority to interpret statutes” and “would also result in an untenable situation regarding the parties’ child.”

David Paul Summers was married to Angela in October 1999, and their child was born in July 2005.  By that time, David Summers had already been diagnosed with gender dysphoria, and had filed a petition in the Marion Circuit Court for a name change to Melanie Lauren Artemisia Davis.  The court granted the name change petition in May 2005, before the child was born, but did not at that time grant a request to change the gender indication on David Summers’ birth certificate.  However, the Marion Circuit Court issued an amended order on October 21, 2008, directing that the gender designation on Davis’s birth certificate “be amended from Male to Female in order to conform to her identity, legal name and appearance.”  Melanie Davis, as she now was named, and Angela Summers split up shortly after this amended ruling was issued, and Davis later filed a petition to dissolve their marriage in Monroe Circuit Court on October 25, 2012, which was not opposed by Summers.  The parties negotiated a proposed dissolution order, which was provisionally approved by the trial court on January 23, 2013, under which Davis was granted custody of the child and Summers was ordered to pay child support.

However, for reasons not explained in Judge Mathias’s opinion, Judge Haughton, acting on her own motion, issued a new order on March 8, 2013, citing Indiana’s statutory ban on same-sex marriage, and stating: “When the order amending the Petitioner’s gender was issued on October 21, 2008, Petitioner’s gender designation was legally changed to female.  Pursuant to [the provision banning same-sex marriage], Melanie Lauren Artemisia Davis (formally [sic] David Paul Summers) a female was prohibited from being married to Angela Summers, also a female.  The marriage became void on October 21, 2008.”  Judge Haughton went on to hold that because the marriage was “void” as of October 21, 2008, the court “lacks the jurisdiction to dissolve a marriage because no marriage exists,” and she denied Davis’s petition for dissolution, thus vacating the January 23 action that had approved the dissolution and the custody and child support agreements.  This left Davis and Summers without any legally binding order determining parental rights and obligations towards their child.

Davis appealed, without any opposition from Summers.  In reversing Judge Haughton, the court of appeals ruled that Judge Haughton had misconstrued the effect of Indiana’s same-sex marriage ban on existing marriages.  The provision on which Judge Haughton relied states that “a marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it was solemnized.”  The court agreed with Davis’s argument that this provision was intended to prevent the recognition in Indiana of same-sex marriages that were performed in other states, but “does not automatically void a marriage that was initially valid in Indiana simply because one of the parties to the marriage has changed his or her gender.”  Judge Haughton had not relied on the other provision of the statute , which says: “Only a female may marry a male.  Only a male may marry a female.”

Judge Mathias found that there was support for Davis’s argument in another provision of the Indiana statutes, titled “Void Marriages,” which states that a marriage is void if an Indiana couple goes out of state in order to evade Indiana’s ban on various kinds of marriages, if they intended to return to Indiana after getting married.  “Simply said,” wrote Mathias, “there is nothing in the Indiana Code chapter dealing with void marriages that declares that a marriage that was valid when it was entered into becomes void when one of the parties to that marriage has since changed his or her gender.  And the section that deals with marriages between Indiana residents solemnized in other states to avoid the application of certain Indiana marital regulations does not mention same-sex marriages.  Nor does it need to do so, as these marriages are already void under Indiana Code section 31-11-1-1(b) even if they were solemnized in another state.”

Thus, the trial court’s reading “has the effect of adding the type of marriage at issue, a marriage between a male and female solemnized pursuant to Indiana law,” to the list of marriages that are “void ab initio” under the “Void Marriages” provision.  Judge Mathias opined that making such an addition to the list was beyond the authority of the trial court, and would have the undesirable effect of creating an “untenable situation” for the child of Davis and Summers.  “To conclude that the parties’ marriage somehow became void when the gender was changed on Davis’s birth certificate would permit Davis to effectively abandon her own child, even though the parties were validly married at the time of the child’s birth and even though Davis is the child’s father.  It would also leave the parties’ child without the protection afforded by Indiana’s dissolution statutes with regard to parenting time and child support.  We do not think that our General Assembly intended such a result.”

The court concluded that the statutory same-sex marriage ban did not apply to this case, since the parties did not “enter into” a same-sex marriage in Indiana, and they were not in a “same-sex marriage that was solemnized in another state.”  The court reversed the trial court’s ruling and sent the case back “for further proceedings consistent with this opinion.”  Presumably this means to reinstate Judge Haughton’s original order approving the parties’ dissolution agreement.

The court’s ruling suggests by implication that there is one kind of same-sex marriage that can exist and be legally recognized in Indiana: a marriage between a transgender woman and a person identified as a woman at birth that was solemnized before the transgender woman obtained a legally recognized change of gender designation (and similarly in the case of a transgender man who was married to a woman prior to his legally recognized change of gender designation).

One wonders whether this decision will inspire an urge by the Indiana legislature to amend the statute.  The legislature is scheduled to take up the question early in 2014 of putting a measure on the ballot to adopt a constitutional ban on same-sex marriages.  Depending how the appeals turn out in pending federal same-sex marriage cases in other states, such an amendment might be rendered unenforceable by a Supreme Court decision finding, consistent with the reasoning of U.S. v. Windsor, that same-sex couples enjoy a right to marry under the 14th Amendment.

The appeal in this case was not opposed by Angela Summers.  Melanie Davis was represented by Professor Stephen Sanders of Indiana University Maurer School of Law (Bloomington), and Earl R.C. Singleton of the Community Legal Clinic, also in Bloomington.