B.D. v A.D.
Annotate this CaseDecided on December 7, 2009
Supreme Court, New York County
B.D., Plaintiff,
against
A.D., Defendant.
xx
Attorney for plaintiff:
Dobrish Zeif Gross LLP
757 Third Avenue
New York, NY 10016
(212) 532-4000
fax: (212) 532-3153
A.D
Defendant Prose
Deborah A. Kaplan, J.
In this action for divorce and ancillary relief, the defendant-husband
(hereinafter "husband") moves by Order to Show Cause for dismissal of the complaint pursuant
to CPLR Section 3211(a)(7), on the ground that the plaintiff-wife (hereinafter "wife") has not
satisfied the durational residency requirements of DRL Section 230. In the alternative, in the
event that this Court determines that factual issues exists, the husband seeks an evidentiary
hearing and a stay of the proceedings until the motion is decided.
The wife cross-moves for Orders granting her summary judgment in that the
pleadings and underlying facts of the complaint satisfy the residency requirements pursuant to
DRL Section 230 as a matter of law; staying the husband from proceeding with the action for
divorce he commenced in Connecticut and denying the husband's motion in its entirety.
The parties, both practicing attorneys, were married on October 7, 1984 in New
York. They lived in Manhattan for the first 14 years of their marriage and their children attended
private [*2]school in New York. In 1983, the husband purchased
a home in Southold, New York, in Suffolk County and then deeded one-half of that property to
the wife. The parties frequently spent time on weekends, holidays and summer vacations in
Southold. Thereafter, in 1996, the wife became the head of litigation at X Corporation located in
Stamford, Connecticut. In July, 1998, the parties purchased a home in Greenwich, Connecticut in
order for the wife to better accommodate the competing demands of work and family. The
parties' Manhattan apartment was sold later that year. The husband, who always maintained a
law practice in New York, commuted to work from Connecticut.
The parties began having marital difficulties in May, 2009. The husband began
spending less time in the parties' Greenwich home, and, on July 24, 2009, rented an apartment in
Manhattan. The wife commenced the instant divorce action on August 13, 2009. In her
complaint, the wife relies on DRL Section 230(5), asserting that she has maintained a residence
in New York for a continuous period in excess of two years immediately preceding the
commencement of the action. On the following day, August 14, 2009, the husband commenced a
divorce action in Connecticut.
The husband now seeks an order dismissing the instant divorce action contending
that the wife has failed to satisfy the residency requirement of DRL Section 230 since the parties
permanently moved from New York to Connecticut in 1998 and resided there together until the
husband recently left the Connecticut residence and rented an apartment in Manhattan.
It is the husband's position that the parties' intention to change their domicile is to
Connecticut is apparent from their conduct. Once they moved to Connecticut, they withdrew
their children from their respective private schools in New York and enrolled them in the
Greenwich public schools where they remained through high school graduation. The wife
obtained a Connecticut driver's license and registered to vote in the general elections in
Connecticut. She also gained admission to the Connecticut bar and the parties registered and
insured their cars in Connecticut. Moreover, the parties receive all of their mail in Connecticut
and began filing joint federal and state income taxes as Connecticut residents in 1998, continuing
to file there through the last tax year, 2008. Because the husband works in New York, the parties
also filed New York nonresident income tax returns. Both parties have also served jury duty in
Connecticut. The husband also points out that the parties recently spent over $100,000 to
renovate the kitchen of their Connecticut home. If there was no intention to remain in
Connecticut, such an expenditure would be ludicrous in the current real estate market, the
husband suggests.
The husband acknowledges that since New York is only a 45 minute drive from their
home in Connecticut, they did not sever all ties with New York. For example, he notes that they
did not change their personal physicians and dentists. Nor did they change their bank accounts,
primarily because of his longstanding relationship with U.S. Trust Company, a bank, he notes,
that also has a branch office in Greenwich, Connecticut.
With respect to the parties' home in Southold, New York, located some 88 miles east
of Manhattan, the husband explains that from the very beginning of the parties' marriage, they
enjoyed frequent weekends, holidays and summer vacations there. However, that home, the
husband asserts, has never been the parties' legal or de facto residence. Indeed, the
husband notes that once the parties moved to their 4,000 square foot home in Connecticut, most
of the holidays have been spent in Connecticut. More importantly, the husband states, significant
family celebrations, including their daughter's confirmation, their son's Australia going away
party, both children's graduations and his mother-in-law's 80th birthday party were all held in
Connecticut. Moreover, he notes that the Southold home is treated as a second home for tax
purposes. Finally, [*3]he alleges that until recently, all bills for
maintaining the Southold home have been sent to and paid from the parties' Connecticut home.
The wife counters the husband's assertion that the parties are not New York
residents. She claims that she and the husband "have been residents of the State of New York
and domiciliaries of Southold, New York since we were married here in 1984."
(emphasis in original). Indeed, according to the wife, the parties' Southold home is the only
residence that they have continuously maintained and returned to throughout their marriage.
According to the wife, the parties spent all of their free time there when they were not working
and that the Southold home has been "the residential core and the emotional foundation of our
family's life for more than two decades." She reports that that they have hosted many important
events there over the years, including the husband's 60th birthday party in August 2008. Further,
she states that the dry cleaner, butcher, cheese provider and fish monger she patronizes are all in
Southold. Referencing the credit card statements annexed to the husband's papers, the wife notes
charges from a restaurant in Mattituck on June 4, 2009, payment for boat docking in Southold on
June 23, 2009, and multiple additional purchases throughout Long Island on June 27, 2009, all of
which further support her contention that the parties often make their household and personal
purchases in New York. She suggests that a closer examination of the parties' credit card records
would further demonstrate that they lived in Southold for a continuous period of two years prior
to the commencement of this action.
According to the wife, further evidence that the parties' lives remained based in New
York despite their move to Connecticut, is demonstrated by the fact that they receive all of their
medical care in New York City, maintain their financial assets and advisors there and executed
irrevocable trusts for the children in New York. In addition, the wife states that the parties
established a real estate investment company in New York which holds three properties located
on Long Island, two of which are in Southold, and the third in the neighboring town of
Mattituck.
Additionally, the wife points out that the husband votes in Southold, garages two
cars and docks two boats there and keeps his most prized possession, his collection of model
trains in the Southold home. Moreover, she asserts that he led a successful campaign to have the
name of their road changed and is known well enough in the town that when a Southold resident
made a complaint against the husband to the police regarding an ongoing problem with the
parties' dog, the resident was able to identify the husband and the dog by name. Finally, she
proffers a letter the husband wrote to a friend in 1999 wherein he states, "I prefer being in
Southold, which is the place we plan to retire someday."
Based on the foregoing, the wife argues that she and the husband were "not merely
residents in Southold. Leading local community campaigns and becoming embroiled in ongoing
disputes with neighbors are not the stuff of transience, but permanence." Her husband's reliance
on what she characterizes as "the children's lifestyle" and the facts that she has a Connecticut
driver's license and votes in Connecticut does not, she avers, defeat her claim that the parties are
New York residents and domiciliaries.
In response to the wife's allegations, the husband points out first that the wife's
representation that the Southold home was the parties' "residential core" is contradicted by her
conduct. He suggests, for example, that if Southold were truly her "residential core," then
presumably she would receive health care there. He argues also that the wife's contention that the
"children's lifestyle" should not preclude a finding that the parties were New York residents
disregards the substantial facts that the children lived in Greenwich for many years, attending
school there [*4]through high school graduation, maintaining
friendships, participating in sports, taking driving courses and obtaining driver's licenses.
The husband concedes that he votes in Southold but states that this fact does little to
support the argument that the parties are New York residents. He explains that he votes there
because his vote in such a small town has a far greater impact, and, as an owner of waterfront
property there, he is concerned with wetland use and preservation issues. That in his capacity as
an attorney, he drafted a petition at the request of Southold neighbors to change the name of a
road, is also not relevant to a determination of whether the parties are New York residents.
Neither is the fact that a complaint for a leash violation was filed against him in Southold nor
that he makes purchases, dines there and owns boats which he sails on the Peconic Bay. This
conduct and activity is consistent with that of a weekend resident, the husband asserts. He denies
the allegation that he garages any cars in Southold. Finally, with respect to the letter to a friend
referenced by the wife, it is the husband's position that this correspondence supports his claims
inasmuch as he writes about the difficulty of building a large model railroad in Southold, "114
miles away from where I live," and notes that it would have been a better idea to build the model
in his home in Connecticut.
DRL Section 230, in relevant part, provides than an action which seeks an
annulment, a declaration of the nullity of a void marriage, a divorce or a separation may be
maintained only when:
5) Either party has been a resident of the state for a continuous period of at least two
years immediately preceding the commencement of the action.
Preliminarily, it should be noted that the durational residency requirements were
enacted to discourage the use of this state's courts by spouses with no substantial ties to New
York, "who would flock here for the sole purpose of obtaining matrimonial relief available in
states that had substantial interests in the marital relationship. . . ." Unanue, supra
at 41. Whether a plaintiff satisfies the residency requirement of DRL Section 230 is a substantive
element of the cause of action that must be alleged and proven by the plaintiff. Lacks v.
Lacks, 41 NY2d 71 (1976). It is well-settled that for purposes of DRL Section 230 residency
may be established either by proof that a person dwelled in New York continuously for the
statutory period immediately prior to the commencement of an action for divorce or by proof that
a person was continuously domiciled in New York for that period. Esser v. Esser, 277
AD2d 926 (4th Dept. 2000); Bourbon v. Bourbon, 259 AD2d 720 (2nd Dept. 1999);
Unanue v. Unanue, 141 AD2d 31 (2nd Dept. 1988); Capdevilla v. Capdevilla,
149 AD2d 312 (1st Dept. 1989); Wittich v. Wittich, 210 AD2d138 (1st Dept. 1994).
A determination of whether a party has established residency — as opposed
to domicile — requires proof only of physical presence in this state for the continuous
period of time set forth in the applicable subdivision of Domestic Relations Law Section 230.
Unanue, supra, and is governed by objective facts such as where the party lived.
Davis v. Davis, 144 AD2d 621(2nd Dept. 1988). If a party is in the state with a
"substantial degree of continuity and permanence," the residence branch of the test is met, even
if the party also has residences elsewhere. Wittich , supra.
Domicile, on the other hand, is defined as the place where the parties lived together
as husband and wife with the intention of making it their fixed and permanent home, see,
Esser, supra; Cocron v. Cocron, 84 Misc 2d 335 (Supreme Court, Kings
County 1975) and is controlled by the subjective intent of the party. Unanue, supra. Once
domicile is established in New York, it is not lost by a party's temporary absences from the state,
but is presumed to continue. Therefore, where the evidence establishes the existence of a New
York domicile, the burden of proving a [*5]change of domicile is
on the party alleging that such a change has occurred. Unanue, supra.
In order to satisfy DRL Section 230 on a domicile basis, evidence of the following
circumstances is relevant: "a place of residence in the state of alleged domicile; length of time of
residence, location of schools attended by the children; leasing, buying negotiating for or a
building a home; declarations, oral or written, made at the time of, or in connection with, a move
which shows intent that a residence shall be permanent; place of worship and club memberships;
place of performance of civic duties, such as voting, jury duty, payment of personal income
taxes; place of bank account; jurisdiction where automobile is registered." Unanue,
supra at 40.
In Unanue, the parties were married in Illinois and eventually settled in New
York, living there for 10 years. In September 1986, they sold their Scarsdale, New York home in
order to raise money for a financial venture. When the parties were unable to locate another
house in Scarsdale to buy or rent, they rented a house in Connecticut. During this interim period,
the wife continued to search for a home in Scarsdale and signed a contract for the purchase of a
home there in November 1986. However, in December, 1986, the husband left the wife and their
children and temporarily moved to Bogota, Columbia. Thereafter, the wife closed title to the
Scarsdale home in her own name and moved into it with the children in January 1987. During
the several months when the parties lived in Connecticut, their son continued to attend Scarsdale
High School and their daughter was enrolled in school in Dobbs Ferry, New York. The parties
also maintained their New York bank accounts, driver's licenses and voter registrations. Based
on the foregoing, the Second Department concluded that there was inadequate evidence that the
parties intended to abandon New York State as their permanent home and make Connecticut
their new domicile. The Court noted that the move to Connecticut was a temporary one,
necessitated by the parties' failure to locate a suitable home in Scarsdale. That the parties did not
intend to abandon New York was manifested in their purchasing another home in Scarsdale,
retaining their New York voter's registrations, driver's licenses and bank accounts and keeping
the children in school in New York. In sum, the Court found that the parties' last marital
domicile was New York, that the wife was a domiciliary of New York when the action was
commenced and for a continuous one year period commencing the action, and that at the time of
the commencement of the action, there was no other state, aside from New York, with a
substantial interest in the marital status of the parties. Accordingly, the Court held that the
durational residency requirement had been met.
Based on the evidence she proffers, the wife alleges that she has established that the
parties are domiciliaries of Southold. However, while the parties maintain a home in Southold
and spent weekends, some holidays and vacations and celebrated many family events there,
evidence that the Southold home is the parties' domicile or ever was, is lacking. Rather, the
evidence supports a finding that the parties were domiciled in Manhattan, where they lived,
worked and sent their children to school, until they sold their apartment and moved to
Connecticut in order to accommodate the demands of the wife's job and her desire to be available
to the parties' children.
Even assuming arguendo that the Southold home was at one time the parties'
domicile, the husband has met his burden of proving that the parties changed their domicile to
Connecticut when they moved there in 1998. Unlike the circumstances in Unanue, there
is no evidence that the parties' move to Connecticut was a temporary one. On the contrary, the
evidence that it was the parties' intention to make Connecticut their new domicile is
overwhelming, and, under the circumstances, Connecticut has a substantial interest in the marital
status of the parties.
Beginning in 1998, the parties filed joint income tax returns as Connecticut
residents, including nonresident New York State returns. Their cars are titled, registered and
insured in Connecticut and the wife has a Connecticut driver's license. Both parties have served
jury duty in [*6]Connecticut, the wife is registered to vote there
and has continuously been employed in that state since the parties' moved there approximately
11 years ago. She is recognized as a member of the Connecticut bar. Moreover, the parties
withdrew their children from private schools in New York City and enrolled them in Connecticut
public schools in 1998 where they remained through high school graduation. Indeed, their high
school graduation celebrations were held in Connecticut. Further, the bills for maintaining both
the Connecticut and Long Island homes, as well as those for credit cards, brokerage statements
and bank statements are mailed and paid from the parties' Connecticut home. Finally, the parties
recently spent over $100,000 renovating the kitchen in the Connecticut home.
While it is true that the parties see physicians and doctors in New York City and
have bank accounts there as well, these facts certainly do not establish that the parties are
domiciled in Southold. On the contrary, it supports the husband's contention that the parties were
domiciled in Manhattan prior to their move to Connecticut, and, in view of the proximity of
Manhattan to Greenwich, opted to continue using the same doctors and to maintain bank and
brokerage accounts and other services there. The fact that the wife executed a trust for the
parties' children in New York, two years before the parties moved to Connecticut, surely does
not establish New York domicile.
The Court has considered the wife's other arguments in support of her claim that the
parties are domiciled in Southold. These include that the parties own investment properties in
Southold, patronize the town's shops and the husband votes and docks his boats there. Also
considered by the Court is the fact that the husband is known to his Southold neighbors and
keeps his model trains in the Southold home. None of these factors compel a different result, but,
rather, suggest that the parties experience the benefits and drawbacks of a weekend and vacation
home located in a small town near the water.
Finally, the letter written by the husband to a friend wherein he states that Southold
is the place to which the parties plan to retire some day, does little to support the wife's position.
In contrast, the letter serves to reinforce the husband's claims that the Southold home was strictly
a weekend and vacation home and that the parties never resided there. Specifically, in the letter
the husband writes that his construction of a large model railroad is going slowly because he is
building it in the parties' Southold home located "114 miles away from where I live." He goes on
to explain that the parties moved to Greenwich to accommodate the wife's change of job and
laments that he did not redesign the railroad plan and build it in the parties' Connecticut home.
"[T]his means," he explains, "that my work is restricted to weekends, on which the kids, getting
older and having things like basketball games and preteen dances coming up, are not exactly
thrilled to be dragged to what they perceive as the end of the world."
Based on the foregoing, the Court finds that the wife has failed to establish that she
is a domiciliary of Southold, and, accordingly, she has not the satisfied the durational residency
requirements of DRL Section 230. Therefore, her complaint is dismissed.
While throughout her papers the wife avers, not that she is a resident of Southold,
but, rather, that she is a domiciliary, and on that basis has met the residency requirement of DRL
Section 230, even if the less stringent test of physical residency were applied, the wife's cause of
action would still fail. There is simply no evidence that establishes that the parties dwelled
continuously within New York State for the requisite two year period. The cases cited by the
wife do not suggest otherwise. Instead, those cases stand for the proposition that New York
residency may be established if there is evidence that a party returns to the state with frequency
and regularity and there is no other place to which the party returns with similar
frequency and regularity. See, [*7]e.g., Weslock v.
Weslock, 280 AD2d 278 (1st Dept. 2001); Wildenstein v. Wildenstein, 249 AD2d
12 (1st Dept. 1998); Davis v. Davis, supra.; see, also, Jindal
v. Jindal, 54 AD2d 605 (1st Dept. 2008) (Durational residency requirement met since,
although wife spent some of the statutorily relevant period in India dealing with family matters,
she returned to New York with regularity.) In the case at bar, the parties were, in fact, domiciled
in Connecticut and it is there that they have returned daily for the past 11 years.
Therefore, upon the facts presented and the applicable law, it is hereby:
ORDERED, that the husband's motion to dismiss the complaint is granted, and it is
further
ORDERED, that the wife's application for summary judgment in that the pleadings
and underlying facts of the complaint satisfy the residency requirements of DRL Section 230, is
denied, and it is further
ORDERED, that the wife's application to stay the husband from proceeding with an
action for divorce in Connecticut is denied, and it is further
ORDERED, that the wife's application that the husband's motion be denied in its
entirety is denied, and it is further
ORDERED, that the husband shall serve the within Decision upon counsel for the
wife with notice of entry, within ten (10) days of entry.
This constitutes the decision and order of the court.
E N T E R
______________________________________
HON. DEBORAH A. KAPLAN
J.S.C.
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