N.Y. Appellate Division (3rd Department) Finds Jurisdiction to Entertain Petition to Dissolve Vermont Civil Union

In a curiously narrow decision that may nonetheless have profound significance, a unanimous five-judge panel of the New York Appellate Division, 3^rd Department, based in Albany, ruled on March 18 that there is no public policy reason to bar the application of the doctrine of comity in determining whether a New York trial court has jurisdiction to consider a petition to dissolve a Vermont civil union. However, the court’s decision in Dickerson v. Thompson refrained from addressing how the trial court was to approach various issues that would be raised by the merits of a dissolution proceeding, leaving the question of which law to apply to the merits of the case up to the trial judge.

Until same-sex marriage became available in Connecticut by court decision late in 2008 and Vermont enacted marriage equality in 2009, three immediately neighboring states – Vermont, Connecticut, and New Jersey – provided civil unions for same-sex partners. New Hampshire also provided civil unions briefly before the enactment of a marriage law last year, and several western states – California, Oregon, and Washington – provide domestic partnerships that are the legal equivalents of civil unions, while some other states, such as Colorado and Hawaii, provide a legal status for same-sex partners that provides fewer state law rights.

As a result of the legislative trend towards same-sex marriage in New England during 2009, however, at present New Jersey is the only state that provides civil unions, and that status has been put back into play by a motion filed on March 18 in the New Jersey Supreme Court by the plaintiffs in Lewis v. Harris, 188 N.J. 415 (2006),the New Jersey same-sex marriage case, arguing that the Supreme Court should mandate that the state provide same-sex marriages because the Civil Union Act has not fulfilled the Court’s mandate of equal rights for same-sex couples and their families.

Due to the proximity to New York of civil union jurisdictions for varying lengths of time during the past decade, none of which have residency requirements for those seeking to enter a civil union, there are many New York same-sex couples that have formed civil unions in neighboring states, and likely others who have formed domestic partnerships in the more distant jurisdictions. All of those states have residency requirements under which at least one member of the couple must reside in the state for some prescribed period of time, normally a year, in order to get a judicial dissolution of the legal relationship.

One of those couples, Audrey Dickerson and Sonya Thompson, went to Vermont in April 2003 to form a civil union, and returned to their residence in New York. However, their relationship took a turn for the worse in 2006, when they ceased living together. Dickerson sought to terminate the civil union, but was not willing to move to Vermont to do so, and instead filed suit in New York Supreme Court in Schenectady in November 2007, asking the court to dissolve her civil union. Thompson failed to respond to the notice of suit, and Dickerson sought a default judgment from the court.

On his own motion, Justice Vincent J. Reilly, Jr., raised the question of his jurisdiction to grant the relief that Dickerson sought. In an order issued on November 13, 2008, Justice Reilly concluded that the lack of any New York state law equivalent of a civil union meant that he had no jurisdiction over the case, writing that New York’s public policy "does not recognize any legal relationship between same-sex partners, does not confer any rights or impose any obligations on such a relationship and does not afford any means by which to dissolve such a relationship." Dickerson appealed this ruling, and Lambda Legal filed an amicus brief in support of her argument that Reilly was wrong.

Writing for the Appellate Division panel, Justice Karen Peters sharply disputed Reilly’s finding that New York law does not "confer any rights or impose any obligations on such a relationship."

She pointed out that "a determination of whether New York is to give effect to another state’s governmental acts is based on whether such acts are consistent with New York’s public policy," and asserted that "the public policy of our state protects same-sex couples in a myriad of ways," including statutory protection in the Public Health Law, which defines "domestic partners" and accords rights of hospital visitation to couples who meet that definition. Another Public Health Law provision gives domestic partners "the right to determine the disposition of one another’s remains." She also noted New York City’s enactment of a domestic partnership ordinance, and could as well have cited municipal or county legislation recognizing domestic partners elsewhere in the state.

Turning to non-legislative governmental acts, Justice Peters also noted executive orders, directives and other actions by government officials in New York State that had extended recognition to domestic partners in a variety of circumstances, as well as noting the special legislative measures addressing surviving same-sex partners of 9/11 victims. She summarized the growing body of court decisions recognizing same-sex partners in New York, dating back as far as 1989 when our highest court, in the famous case of Braschi v. Stahl Associates, recognized same-sex partners as "family members" under tenant succession regulations, and mentioned the recent appellate decision upholding the authority of the Civil Service Commissioner to extend spousal benefits eligibility to domestic partners of public employees.

Consequently, Peters concluded, there is no "public policy" bar to extending comity to a Vermont civil union in this context. "Although the valid Vermont civil union entered into by the parties does not bind us to confer upon them ‘all of the incidents which the other jurisdiction attaches to such status," she wrote, "we may recognize the civil union status.... as a matter of comity."

As to the trial court’s jurisdiction in this matter, Peters found that the state Constitution confers upon the Supreme Court (the general jurisdiction trial level court in New York State) "general original jurisdiction in law and equity," and, as such, "it is competent to entertain all causes of action unless its jurisdiction has been specifically proscribed."

"Here, while New York has not created a specific mechanism for dissolution of a civil union validly entered into in another state, neither has it exercised its power, by statute or other legislative enactment, to prohibit an action for dissolution of a civil union," she pointed out. "Since Supreme Court’s jurisdiction over the subject matter of this action has not been proscribed, and this matter involves a dispute for which ‘adequate relief by means of an existing form of action is unavailable to the plaintiff,’ Supreme Court is competent to adjudicate the case."

But Justice Peters cautioned that a ruling on jurisdiction was not a ruling on the merits of the case, and it is possible that Justice Reilly could conclude on remand that he lacked power to provide the remedy that Dickerson is seeking. "Absence of competence to entertain an action deprives the court of ‘subject matter jurisdiction,’" wrote Peters, but "absence of power to reach the merits does not. As such, questions as to whether and to what extent relief may ultimately be afforded to the parties have no bearing on whether Supreme Court has subject matter jurisdiction. Conversely, our conclusion that subject matter jurisdiction exists does not in any way determine the ultimate question of what, if any, relief is available on the merits."

Hence the conclusion, stated at the outset, that this decision leaves important issues to be resolved by the trial judge, who will have to determine what legal principles may be used in light of Dickerson’s petition for equitable and declaratory relief.

Will he apply whatever standards are set out in the Vermont Civil Union Act in order to determine whether Dickerson is entitled to a declaration that the civil union is dissolved under the circumstances described in her complaint? Unlike Connecticut, Vermont did not provide in its marriage equality legislation that existing civil unions would be treated as marriages if not dissolved by a certain date. Thus, civil unions contracted before last year’s marriage enactment continue to be recognized as civil unions under Vermont law, and that law provides its own mechanism for their dissolution, which Justice Reilly might decide to follow.

In this connection, New York, unlike Vermont, has not joined the trend toward no-fault divorce. Vermont’s Civil Union Act tracks its divorce law in setting the requirements for dissolution. If Justice Reilly concludes that the fault requirements of New York divorce law apply, Dickerson will have to prove the necessary facts to qualify for a New York divorce. Alternatively, the court might apply the Vermont no-fault standard, which would mean that civil union partners from Vermont would have an easier time getting a dissolution than would same-sex partners who now go to Vermont to marry and subsequently file a divorce action in New York. But it seems likely that the court will apply New York divorce standards.

Similarly, the court would have to decide what body of law to consult to deal with issues of property disposition, custody and visitation of children (in cases involving them), and any other issues that might come up in the dissolution of a legal relationship.

Thus, there remains substantive work for the trial court to do in this case, but the important barrier of jurisdiction has now been overcome. The court’s decision might be seen as opening up a split in the Appellate Divisions, since the 2^nd Department, based in Brooklyn, ruled years ago in Langan v. St. Vincent’s Hospital of New York, 802 N.Y.S.2d 476 (2005), that New York would not recognize a Vermont civil union for purposes of the state’s Wrongful Death Act, but it might be argued that wrongful death actions and dissolution actions are different enough in their policy implications to treat the two cases as distinct. If the two Appellate Division rulings are seen as being in conflict, then the 3^rd Department’s ruling might not be treated as a state-wide precedent.

The lack of any analogue in New York law to a Vermont civil union – other than, perhaps, marriage – poses substantive questions for the trial judge that the Appellate Division has totally avoided by the expedient of limiting its decision to the single issue of jurisdiction, so Dickerson’s pursuit of a dissolution of her civil union may still founder on the uncertain answers to the remaining questions mentioned above. Justice Reilly might try take the simplest way out by extending comity to the Vermont Civil Union Act for all purposes of the case and acting as if his court is a substitute for a Vermont trial court, in which case no-fault principles apply and Vermont’s mechanism for asset division can simply be followed. Of course, if Thompson does not like the result, she could mount an appeal, confronting the Appellate Division with the questions it left unanswered in its March 18 decision.

Comments

[Barbara Shapiro]

I am a party of an out-of-state Civil Union dissolution in NY. This occurred in the Supreme Court under Justice Walker, BS vs. FB that you wrote about when Justice Walker ruled that the court must find a way to dissolve these unions last year.

I was surprised that the method used in our dissolution, and the dissolution itself, was not reported yet in the media.

My attorney, Patrick Bliss (White Plains, NY), was very competent in bringing the CU dissolution to fruition. Justice Walker had the foresight to guide the process through to resolution.

[Art Leonard]

Unless the final order of dissolution gets published and/or circulated to the media, nothing will be written about it. The difference is that an appellate decision on a new point of law will definitely be published, and thus will get attention, first in the legal media (NY Law Journal, etc.), then in the mainstream media. If you have a final written order, send it to me and it will get some attention.