Jolin v Rosario

[*1] Jolin v Rosario 2012 NY Slip Op 51317(U) Decided on July 17, 2012 District Court Of Nassau County, First District Fairgrieve, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 17, 2012
District Court of Nassau County, First District

Madsen Pierre Jolin, Petitioner(s)

against

Isabel Hernandez Rosario and Alexander Cespedes Hernandez, Respondent(s)



LT-001821-12



Jablonski and Jablonski, Attorneys for Petitioner, 50 Glen Street, Suite 208, Glen Cove, New York 11542, 516-676-4114; Nassau/Suffolk Law Services Committee, Inc., Attorneys for Respondent, One Helen Keller Way, 5th Floor, Hempstead, New York 11550, 516-292-8100.

Scott Fairgrieve, J.

The following named papers numbered 1 to 3

submitted on this Motion

on June 5, 2012

papers numbered

Notice of Motion and Supporting Documents1Order to Show Cause and Supporting Documents

Opposition to Motion2

Reply Papers to Motion3

Petitioner commenced this holdover proceeding on April 3, 2012 and asks the court to deny the Respondent's, motion to dismiss. The Respondent Isabel Hernandez Rosario, moves pursuant to § CPLR 3211(a)(1) and (2) for an order dismissing the petition on the grounds Petitioner, Madsen Pierre Jolen should address the issue of the occupancy of the marital residence in Family or Supreme Court, which is the appropriate jurisdiction for this matter.

In the case at bar, the Petitioner and the Respondent were married on January 14, 2009 in the Dominican Republic where the Respondent and her son, Alexander Cespedes Hernandez resided. In or about April 2010, the Petitioner moved the Respondent and her son to the United States and he moved them into his house where [*2]they have resided ever since. Then, in or about September 2011, the Petitioner obtained an ex parte divorce from the Dominican Republic without the knowledge or consent of the Respondent. The Respondent alleges that she first learned of the divorce when she discovered divorce documents taped to their home computer.

In Arnoff v. Arnoff, the Second Department Appellate Division held that in order for a foreign divorce to be recognized in New York, the foreign court must have had in personam jurisdiction over both spouses. Aranoff v. Aranoff, 226 AD2d 657,658, 642 N.Y.S.2d 49, 50 (NY App. Div. 2d Dep't 1996). More recently, the Second Department held that it will not recognize an ex parte divorce attained by a spouse who is present but not domiciled in the foreign country if the other nonresident spouse does not appear and is not served with process. Farag v. Farag, 4 AD3d 502, 504, 772 N.Y.S.2d 368, 371(NY App. Div. 2d Dep't 2004).

This court will not recognize Petitioner's divorce from Respondent because the divorce was obtained ex parte without proper notice to Respondent. The case at bar is distinguishable from Halaby v. Halaby, 44 AD2d 495, 355 N.Y.S.2d 671 (NY App. Div. 4th Dep't 1974) where the wife was subject to eviction. In Halaby, the Family Court which had proper jurisdiction over the matter, had already decided the support rights and obligations of the parties. Id. at 498. Furthermore, the Family Court ordered the husband to provide his wife with monthly support payments. Id. Unlike Halaby, in the case at bar, the rights and obligations of the respective parties have not been decided by court order or agreement.

However, In Rosenstiel v. Rosenstiel, the First Department Appellate Division held that the wife was not considered a licensee because:

As long as the marriage relationship stands, unabridged by court decree or valid agreement between the parties, the husband has the obligation by virtue thereof to support and maintain his wife. The maintenance of a home or housing for the wife is a basic and necessary element of such support." Rosenstiel v. Rosenstiel, 20 AD2d 71,76-7, 245 N.Y.S.2d 395, 401 (NY App. Div. 1st Dep't 1963).

This court does not recognize the ex parte divorce decree obtained by the Petitioner in the Dominican Republic. Accordingly, the property in dispute is considered a marital residence. This court lacks jurisdiction to decide this matter because no landlord-tenant or licensee relationship was established. Based upon the foregoing, the proceeding is dismissed.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE [*3]

Dated:July 17, 2012