OUTCOME: Husband's motion to invalidate the contract was granted
An agreement signed between husband and wife, which obligated the husband to pay the rent of the parties' emancipated children, was held void and unenforceable for lack of consideration. The wife moved... to compel the husband to comply with the terms of the agreement, and the husband's counsel moved to have the agreement declared null and void for lack of consideration. The court ruled that a key part of a valid contract is consideration, an element that the judge said was "conspicuously absent" from the "one-sided" agreement at issue.
Family
Peg Streep-Weatherly, Plaintiff v. Craig Weatherly, Defendant, 304909/14
Feb 02, 2015
OUTCOME: Motion to dismiss granted
Justice Drager’s decision in the matter of Streep-Weatherly v. Weatherly, which granted the defendant’s motion to dismiss the plaintiff’s divorce action commenced in New York, is an important decision..., not only for matrimonial attorneys, but for all attorneys representing clients who reside in different states at the time of the action where jurisdictional issues might be present.
As far as jurisdictional issues, this case has it all, including issues of service on an out of state resident, personal jurisdiction pursuant to the long arm statute of CPLR 302(b), residency as defined by DRL 230, forum non conveniens, and the principle of divisible divorce and its interplay with no fault divorce.
Notably, Justice Drager’s decision provides insight into the issue of domicile and could serve as a guide to attorneys advising clients who hope to establish domicile in a state that is different from the marital domicile. Even where a party has established a new residence which s/he claims to be his/her new domicile, unless that party takes affirmative steps to sever ties to the previous domicile, for example, obtaining a new driver’s license and registering to vote in the new purported domicile, the evidence will weigh heavily in favor of finding that the party has not in fact obtained a new domicile. This, of course, has far reaching implications in matrimonial cases where parties reside in two different states, and where the residency requirements and personal jurisdiction are of such importance.
Here, after the parties married in New York (where the plaintiff had lived nearly all of her life), the parties relocated to Vermont (where the defendant had lived nearly all of his life), and lived together as husband and wife in a residence in Vermont owned by the plaintiff. After a few years the marriage had broken down. The plaintiff moved back to New York and began residing in an apartment on the Upper East Side with her adult daughter. The defendant visited with the plaintiff several times in New York, helped her move to New York and even at some point discussed the possibility of reconciling and moving to New York. Despite this, the plaintiff maintained his residency and domicile in Vermont and continued living in the Vermont marital residence owned by the plaintiff. The plaintiff claimed that upon her return to New York she became a New York domiciliary, arguing that she had no intention of ever returning to Vermont, where she had only visited a couple of times since she moved. Additionally, the plaintiff argued that the cause of action accrued in New York, claiming that the defendant’s act of helping the plaintiff move to New York then returning to Vermont constituted abandonment in New York, and also claiming that his visits to New York over the years amounted to minimum contacts with New York. The Court found that, despite her subjective intent to remain in New York permanently and her New York residency, given the overwhelming evidence provided, including evidence that the plaintiff is registered to vote in Vermont, pays taxes in Vermont, has a Vermont driver’s license and Vermont residence, the plaintiff was still in fact a Vermont domiciliary and Vermont was the parties’ marital domicile. Moreover, the Court found no merit to the plaintiff’s arguments that the cause of action accrued in New York, or that personal jurisdiction had been acquired over the defendant. The Court therefore granted the defendant’s Motion to Dismiss the New York action.
