Zweig v. Zweig

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
 
 
                                No. 89-120
 
 
Michael F. Zweig                             Supreme Court
 
     v.                                      On Appeal from
                                             Caledonia Superior Court
Martha MacNeal Zweig
                                             April Term, 1990
 
 
Matthew I. Katz, J.
 
Rubin, Rona, Kidney & Myer, Barre, for plaintiff-appellee
 
Martha MacNeal Zweig, pro se, Hardwick, defendant-appellant
 
 
PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.
 
 
     PECK, J.  This is an appeal by defendant wife from a divorce decree
entered upon a finding that the parties had lived apart for six months and
that the resumption of marital relations was not reasonably probable.  15
V.S.A. { 551(7).
     The parties were married in Philadelphia in 1965 and moved to New York
State.  In 1974, plaintiff husband left the marital home and moved to New
York City, where he still resides.  Defendant wife moved to Vermont in the
fall of that year and has lived in this State ever since.  Both parties
have cohabited with other individuals for over ten years.  The only child of
the marriage will be twenty years old in November of this year.
     In December, 1978, plaintiff filed an action for divorce in New York
State on the grounds of constructive abandonment and cruel and inhuman
treatment.  Defendant contested the action, and counterclaimed, seeking
custody, child support, and maintenance.  The court severed the custody and
support issues, and the matter was tried on the divorce complaint alone.  In
July, 1980, the court dismissed the action, stating that plaintiff had
failed to prove his allegations of constructive abandonment and cruelty.
     After considerable lapse of time, in March of 1988 the New York court
ordered plaintiff to pay child support of one hundred dollars per week
retroactive to January 1, 1985; to maintain medical, dental, and life
insurance for his daughter's benefit; and to pay all medical and dental
bills in excess of one hundred dollars a year that are not covered by
insurance.  The support order remains in effect until his daughter's twenty-
first birthday in November, 1991.
     In 1988, plaintiff brought an action for divorce in Vermont pursuant to
15 V.S.A. { 592, alleging an irreconcilable separation exceeding six months.
The court granted the divorce and denied maintenance to defendant.  This
appeal ensued.
     On appeal, defendant challenges the trial court's jurisdiction to grant
the divorce, asserting that the matter is res judicata because of the prior
New York decision.  Defendant is correct that if an initial suit for divorce
is brought in a different state than the second suit, a judgment on the
merits for the defendant bars a subsequent divorce action on identical
grounds where the evidence will be essentially the same.  See Slansky v.
Slansky, 150 Vt. 438, 441, 553 A.2d 152, 154 (1988); Gordon v. Gordon, 59 So. 2d 40, 43-44 (Fla. 1952).  The inquiry here, then, is whether these two
divorce actions were brought on the same grounds and on the same evidence.
We hold that they were not.
     Plaintiff asserted cruelty and constructive abandonment as grounds for
the New York divorce, not an irreconcilable separation of more than six
months.  N. Y. Dom. Rel. Law { 170 (McKinney 1988) permits no-fault divorce
only pursuant to a one-year separation under a court decree or written
agreement; neither is present in this case.  Vermont's divorce statute, by
contrast, does not require a written agreement or court decree; rather, it
allows divorce after the parties have lived apart for six consecutive
months, upon a finding that resumption of marital relations is not
reasonably probable.  15 V.S.A. { 551(7).  We decline to hold that, in this
case, these statutory bases are so similar as to constitute identical
grounds.
     In any event, plaintiff's suit in New York did not rely on that state's
no-fault provisions, N. Y. Dom. Rel. Law { 170(5),(6) (McKinney 1988), but
instead on the grounds of constructive abandonment and cruelty.  Defendant
has not shown that the New York court considered that state's no-fault
grounds in reaching its decision.  The court's opinion clearly states that a
divorce was sought and denied on the grounds of constructive abandonment and
cruelty.  At the conclusion of the opinion, a handwritten insertion mentions
the "dead marriage" doctrine.  Defendant attempts on appeal to establish
that New York's "dead marriage" doctrine is in reality  another name for
irreconcilability, or some similar no-fault basis for divorce, which the New
York court considered and rejected in the prior action.  Defendant argues
that in New York, grounds of cruelty can encompass the "dead marriage"
doctrine.  Hessen v. Hessen, 33 N.Y.2d 406, 410-11, 353 N.Y.S.2d 421, 426,
308 N.E.2d 891, 894-95 (1974); Berlin v. Berlin, 64 Misc. 2d 352, 355-56,
314 N.Y.S.2d 911, 916 (1970).  Nevertheless, the doctrine is still part of
the grounds for cruelty, and cannot stand alone under New York law as a
distinct, no-fault basis for dissolution of a marriage.  Brady v. Brady, 64 N.Y.2d 339, 345-46, 486 N.Y.S.2d 891, 895, 476 N.E.2d 290, 294 (1985);
Berlin, 64 Misc. 2d at 353, 314 N.Y.S.2d  at 913.
     Defendant further asserts that plaintiff "acknowledged . . . that the
issue of irreconcilable separation was tried and determined in New York,"
citing plaintiff's memorandum in opposition to defendant's motion to
dismiss.  That document contains no such acknowledgment, stating only that
"even if" the matter had been raised in New York, plaintiff was not
precluded from bringing suit in Vermont on a continuing cause of action.
Defendant's res judicata argument, therefore, is meritless.
     Even if plaintiff's claims in both lawsuits were identical, he is not
forever precluded from alleging and proving irreconcilable separation in a
later proceeding.  "[A]pplication of res judicata . . . does not preclude [a
party's] ability to rely upon facts and circumstances existing after [an
adjudication upon the merits]."  Lillis v. Lillis, 1 Kan. App. 2d 164, 168,
563 P.2d 492, 495 (1977).  Moreover,
          [i]t is apparent in the physical nature of things that
          where the law requires that the act . . . be continuous
          for a specified period of time immediately prior to the
          commencement of the action, successive suits for divorce
          on [those grounds] necessarily involve separate and
          distinct factual situations in respect to that time
          element.
 
Reynolds v. Reynolds, 117 So. 2d 16, 20 (Fla. 1959)(emphasis omitted).  The
court need only find that the separation had lasted for the requisite
statutory period on the date the case came to trial.  The policy underlying
no-fault dissolution of marriages recognizes that divorces should be granted
when a marriage has broken down, so that the parties may be free to form
other, and, it is hoped, happier alliances.  Defendant has cited no author-
ity, and we find none, for the proposition that an action for divorce
cannot be brought on grounds present in the years following a prior,
unsuccessful suit.   The weight of authority is to the contrary.  Booker v.
Booker, 96 A.D.2d 522, 522, 465 N.Y.S.2d 39, 39-40 (1983); Carratu v.
Carratu, 70 A.D.2d 503, 504, 415 N.Y.S.2d 835, 836, (1979), aff'd, 50 N.Y.2d 941, 942, 431 N.Y.S.2d 455, 456, 409 N.E.2d 929, 930 (1980).
     Husband and wife have lived apart for over fifteen years, and both have
long-term relationships with other individuals.  Under these circumstances,
we cannot find error in the court's finding that the separation exceeded six
months, and that the resumption of marital relations was not reasonably
probable.  It is axiomatic that "there can be no true reconciliation without
a good faith effort on the part of both parties."  Tabakin v. Tabakin, 131
Vt. 234, 236, 303 A.2d 816, 818 (1973).  Plaintiff has made it abundantly
clear that for him, the marriage is over.  It is the function of this Court
to review and uphold judgments granting divorce if the record permits.
Boone v. Boone, 133 Vt. 170, 171, 333 A.2d 98, 99 (1975).  The trial court's
determinations are fully supported by the evidence.
     With respect to the issue of maintenance, this Court defers to the
trial court's broad discretion in fashioning an award of maintenance or
denying such an award.  McCrea v. McCrea, 150 Vt. 204, 207, 552 A.2d 392, 394 (1988).  A party challenging the trial court's action must show that
the award, or lack of it, has no reasonable basis to support it.  Quesnel v.
Quesnel, 150 Vt. 149, 151, 549 A.2d 644, 646 (1988).  Defendant has failed
to meet that burden here.  The evidence showed that she is well educated,
that her companion contributed to household expenses, that she owns real
property unencumbered by a mortgage, and that she has steady employment.
Plaintiff's net worth is approximately $1000, and the parties split their
property approximately equally at the time they separated in 1974.  Under
the circumstances, we cannot find that the trial court's refusal to award
maintenance was unsupported by the evidence.
     Defendant claims that she was treated unfairly in the trial court.  The
transcript of the trial shows no foundation for her assertion.  She further
maintains that the statute of limitations and doctrine of laches are a bar
to plaintiff's suit.  In view of our determination that plaintiff's second
action is not res judicata, these claims are unfounded.
     Defendant also challenges the application of 15 V.S.A. { 592,
contending that it cannot be applied because the cause of action accrued
prior to the statute's amendment, which permitted out-of-state residents to
sue in-state residents for divorce in Vermont courts.  However, "the
overwhelming weight of authority supports retroactive application of
legislative creation or amendment of divorce grounds, unless the statutory
language employed precludes such a construction."  Gleason v. Gleason, 26 N.Y.2d 28, 36 n.5, 308 N.Y.S.2d 347, 352 n.5, 256 N.E.2d 513, 517 n.5
(1970) (citing cases from twelve jurisdictions).  The Vermont statute
includes no such limitation.  Furthermore, it is the function of the
legislature, not this Court, to determine the consequences of statutory
revision.
     Defendant raises numerous constitutional arguments in her brief,
claiming violations of due process, equal protection, and full faith and
credit.  These assertions are decidedly without merit, and we decline to
consider them here.
     Affirmed.
 
 
 
                                        FOR THE COURT:
 
 
                                        __________________________________
                                        Associate Justice