In its October 30, 2014 decision in Hoffer-Adou v. Adou, the Appellate Division, First Department, affirmed the granting of summary judgment awarding a no-fault divorce solely upon the plaintiff’s (here the wife) sworn statement. That award had been made below by Supreme Court, New York County Justice Deborah A. Kaplan.
In so holding the First Department joined the Fourth Department in holding that whether there has been an irretrievable breakdown is purely subjective. In a decision issued November 9, 2012 in Palermo v. Palermo, the Fourth Department (December 13, 2012 blog post) had affirmed a decision of Monroe County Supreme Court Justice Richard A. Dollinger (January 30, 2012 blog post) for the reasons stated in Justice Dollinger’s opinion: a party’s sworn statement of irretrievable breakdown is incontestable. It is not subject to attack at trial.
The First Department, here, held:
Contrary to the husband’s contention, the wife was entitled to a judgment of divorce under the no-fault provision of DRL § 170(7), since her statement under oath that the marriage was irretrievably broken for a period of six months was sufficient to establish her cause of action for divorce as a matter of law.
However, as noted in prior blog posts, the subject has not been without debate. Two decisions of the Nassau County Supreme Court, Townes v. Coker (relied upon by the First Department and discussed in the blog post of February, 20, 2012), and A.C. v. D.R. (discussed in the April 4, 2011 post), both held that New York’s new no-fault ground was purely subjective.
However, the January 30, 2012 post, discussed the January 12, 2012 decision of Acting Suffolk Supreme Court Justice James F. Quinn in Sorrentino v. Sorrentino, in which it was held that the detailed and corroborated testimony of the plaintiff wife, alone, was not a sufficient basis upon which a court could grant a divorce on the grounds of irretrievable breakdown. Mr. Sorrentino was entitled to challenge his wife’s case and provide his defense.
Additionally, the February 21, 2011 blog post discussed the decision of Essex County Supreme Court Justice Robert J. Muller in Strack v. Strack, in which it was held that the determination of whether a breakdown of a marriage is irretrievable is a question to be determined by the finder of fact.
Similarly, in Schiffer v. Schiffer, a September 30, 2011 decision of Dutchess County Supreme Court Justice Charles D. Wood held that the underlying ground for the divorce is not the statement by theplaintiff. The ground for the divorce is the irretrievable breakdown of the marriage, which must have existed for six months. “An assertion by a party that the marital relationship has been irretrievably broken for six months is subject to the same scrutiny and burden of proof as assertions made under other sections of the statute.”
In Hoffer-Adou, the First Department also upheld the granting of summary judgment awarding the divorce. It was noted that D.R.L. §170(7) requiremes that “[n]o judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts’ fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.”
Here, the parties had entered a separation agreement that resolved all of those matters. The First Department upheld Justice Kaplan’s rejection of the husband’s attack upon that agreement. Moreover, the post-agreement commencement of Family Court proceedings concerning these issues did not render the court without authority to grant the divorce, since:
[n]on-compliance with/or enforcement of, the [s]eparation [a]greement is not an element of [Domestic Relations Law] §170(7).
Accordingly, Justice Kaplan’s awarding of summary judgment was affirmed.