Justice Kevin G. Young of New York Supreme Court, Onondaga County (Syracuse), issued a decision on October 21 dissolving a civil union that had been contracted in Vermont in 2004 by Heidi Marie Parker and Mindy Tamara Waronker. Parker v. Waronker, No. 2010-M-0517. In default of any New York substantive law about civil unions, Justice Young referred to Vermont law to determine whether grounds for dissolution of the civil union had been met and, due to the circumstances, did not have to determine any issues of property division or child custody and so had no need to determine which state's law would be applied to those issues.
According to the opinion, the parties contracted their civil union in Vermont on June 18, 2004, but their relationship subsequently deteriorated until Waronker moved out of their home on June 30, 2007, since when they have lived separately. At present, Parker lives in New York and Waronker lives in Ohio. The court found that "the resumption of their relationship as a civil union is not reasonably probable," but that they could not get the civil union dissolved in Vermont because there is a residency requirement. And, as noted above, the court found that the couple have no children, and that they had "waived any claims for any ancillary relief."
Justice Young reported that Parker had commenced this action as a divorce action, but since the parties are not married, the New York divorce statute is not available to them. On his own motion, Justice Young "elected to convert this action to one for declaratory relief" and Waronker submitted a written consent "to such relief." The court observed that the Appellate Division, 3rd Department, had recently found that a New York court would have subject matter jurisdiction over an action for declaratory and equitable relief to dissolve a civil union entered in another jurisdiction, but given the procedural posture of that case — an interlocutory appeal of the question of subject matter jurisdiction — the appellate court had not ruled on the question of what substantive law would be applied to determine the case on the merits.
After noting that New York law has recognized the legal status of civil unions contracted in other states in a variety of contexts, showing an "emerging public policy of the State of New York to protect the rights of individuals in same sex relationships," Justice Young wrote that "the question remaining is whether the plaintiff has demonstrated grounds for such dissolution under the applicable Vermont Statutes," and concluded that those grounds were shown to exist – to wit, that the parties had lived apart for six consecutive months and the court had found that resumption of their relationship was not reasonably probable, a no-fault divorce standard. He concluded that "as a matter of law the plaintiff is entitled to a judgment dissolving the civil union entered into by the parties on June 18, 2004."
This ruling is one more incremental step in the unfolding story of how civil unions contracted in other states will be treated in New York, deciding without detailed discussion that the law of the state where the civil union was entered will provide the rules of decision for a New York court having subject matter jurisdiction of the action and jurisdiction over the parties (one being a resident of New York).
This effectively removes one cautionary impediment for New York same-sex couples considering whether to contract civil unions in other jurisdictions; for, at the time civil unions first became available, legal organizations cautioned that there was doubt that a civil union could be dissolved unless one of the partners was a resident of at least one year's duration in the civil union jurisdiction. Without discussing the issue, Justice Young ruled that the court's authority to make a declaration regarding the family relationship status of a couple could be invoked, using substantive rules of decision from Vermont, to deal with the issue of dissolution, without any impediment being posed by the Vermont residency requirement.
This still leaves open, at least theoretically, the question of what body of law a court would use to decide custody or property division issues. The most likely answer would be New York law, in light of the Court of Appeals rulings this year in H.M. v. E.T., 14 N.Y.3d 511 (2010) and Debra H. v. Janice R., 14 N.Y.3d 576 (2010), but we won't have a more definite answer until a court actually rules on the merits of a child custody dispute or a property division matter involving a Vermont civil union couple who are dissolving their civil union.
Of course, Vermont has adopted a same-sex marriage law more recently and civil unions are no longer available there, but same-sex couples from other states can marry, which is also true in Connecticut and Massachusetts, two other states sharing a common border with New York, as well as our northern immediate neighbor, Canada. Civil unions are available without residency in New Jersey, for those so inclined. Several New York trial judges have ruled that same-sex couples who marry in other jurisdictions can access New York courts for divorce, as New York will follow established comity rules to recognize those marriages.
Thanks to Mary Traynor of Legal Services of Central New York for sending us this as-yet unpublished opinion.