Gotlib v. Ratsutsky — 83 N.Y.2d 696

Majority

p. 696

[635 NE2d 289, 613 NYS2d 120]

In the Matter of Ilya Gotlib, Respondent, v Lia Ratsutsky, Appellant. Lia Ratsutsky, Appellant, v Ilya Gotlib, Respondent.

Argued May 3, 1994;

decided June 14, 1994

p. 697

POINTS OF COUNSEL

Bressler Amery & Ross, New York City (David H. Pikus and Martin I. Shelton of counsel), for appellant in the above-entitled proceeding and action.

I. Summary judgment was properly denied by the Supreme Court on public policy grounds. (Weiss v Garfield, 21 AD2d 156 ; People ex rel. Foussier v Uzielli, 23 AD2d 260 , 16 NY2d 1057 ; Greschler v Greschler, 51 NY2d 368 ; Tamimi v Tamimi, 38 AD2d 197 ; Ehrlich-Bober & Co. v University of Houston, 49 NY2d 574 ; Mast, Foos & Co. v Stover Mfg. Co., 177 US 485 ; Williams v North Carolina, 317 US 287 ; Russian Socialist Federated Soviet Republic v Cibrario, 235 NY 255 ; Arpels v Arpels, 8 NY2d 339 .) II. Respondent should be estopped from enforcing the Soviet divorce decree on the basis of his undisputed actions. (Rosenthal v Reliance Ins. Co., 25 AD2d 860 , 19 NY2d 712 ; Levy v Louisiana, 391 US 68 ; Labine v Vincent, 401 US 532 ; Matter of Shan F. v Francis F., 88 Misc 2d 165 , revd on other grounds sub nom. Matter of Ferrer v Ferrer, 58 AD2d 529 .)

Raymond P. Berberian, Kew Gardens, for respondent in the above-entitled proceeding and action.

I. The Court below properly determined that the Soviet bilateral decree of divorce was entitled to comity. (Mack v Arnold Gregory Mem. Hosp., 90 AD2d 969 ; Mahar v Mahar, 111 AD2d 501 ; Laye v Shepard, 48 Misc 2d 478 , 25 AD2d 498 ; Killian v Metropolitan Life Ins. Co., 225 App Div 781 , 251 NY 44 ; Ronson v Ronson, 58 AD2d

p. 698

987 ; Jones v Sumo Container Sta., 186 AD2d 539 .) II. A party is estopped from attacking the validity of a foreign bilateral divorce decree when that party participated in its fraudulent procurement. (Peckham v Peckham, 97 AD2d 578 ; Roman v Vargas, 182 AD2d 543 ; Mack v Arnold Gregory Mem. Hosp., 90 AD2d 969 ; Goldstein v Town of Liberty, 189 AD2d 989 ; Harrison v Harrison, 134 AD2d 567 ; Rakowski v Rakowski, 109 AD2d 1 ; Faco-Rodi v Faco-Rodi, 139 Misc 2d 628 ; Sherrer v Sherrer, 334 US 343 ; Matter of Satulsky, 150 AD2d 193 ; Matter of Silver v Silver, 36 NY2d 324 .) III. Acts of cohabitation in New York State years after a bilateral divorce do not give rise to a common-law marriage. (Matter of Watts, 31 NY2d 491 ; Matter of Farber v U. S. Trucking Corp., 26 NY2d 44 ; Jennings v Hurt, 160 AD2d 576 , 76 NY2d 870 ; Cucalon v State of New York, 103 Misc 2d 808 ; People v Allen, 27 NY2d 108 ; Matter of Merritt v Chevrolet Tonawanda Div., 50 AD2d 1018 .) IV. The Court below properly terminated the pendente lite child support award as the Court below determined that there was no "matrimonial action” pending and determined that appellant could not demonstrate a reasonable probability of success. (Lavi v Lavi, 103 AD2d 400 ; Cross v Cross, 112 AD2d 62 ; Greene v Greene, 90 AD2d 533 ; Matter of Nicholson, 180 AD2d 685 ; Lansford v Lansford, 96 AD2d 832 ; Merrick v Merrick, 56 AD2d 827 ; Pierot v Pierot, 49 AD2d 838 ; Ramirez De Bouhana v Bouhana, 112 Misc 2d 314 ; Kiss v Kiss, 132 Misc 2d 368 .) V. Appellant’s causes of action for divorce and necessaries are dismissable on other grounds including appellant’s failure to assert meritorious supporting facts in opposition to the summary judgment motion. (Koppers Co. v Empire Bituminous Prods., 35 AD2d 906 , 30 NY2d 609 ; Tutak v Tutak, 123 AD2d 758 ; Baron v Jeffer, 131 AD2d 411 ; Lavi v Lavi, 103 AD2d 400 ; Elson v Elson, 149 AD2d 141 ; Geiser v Geiser, 115 AD2d 373 ; Kiss v Kiss, 132 Misc 2d 368 ; Berman v Berman, 111 AD2d 141 ; Schine v Schine, 31 NY2d 113 ; Phillips v Phillips, 70 AD2d 30 .)

OPINION OF THE COURT

At the heart of this appeal surrounding a multipronged dispute between Lia Ratsutsky and Ilya Gotlib is her suit for divorce from him under New York law. Since she concedes that she was already divorced from him in 1976 in Odessa, The Ukraine, under then-Soviet law, she faces a formidable

p. 699

obstacle to obtaining such relief under comity principles respected and applied under New York jurisprudence.

The parties were married in the USSR in 1976 and divorced within a year. The wife initiated that divorce, appeared in court with her husband, and secured the sought-after bilateral divorce decree. She never renounced or disclaimed the validity and effect of that divorce until she commenced this New York litigation, some 14 years later. She and her former husband did eventually emigrate separately, as did her extended family, in the late 1970’s. During part of the 1980’s, she and her former husband lived together in Brooklyn, and while they did not marry or remarry, a daughter was born to them in 1980. The parties filed joint tax returns for the periods when they were together. Eventually, they went their separate ways and this litigation ensued. Though the litigation involves visitation and support issues, only the divorce aspect is before this Court on this appeal.

Appellant Ratsutsky claims that the Soviet divorce was a "sham” and was sought "pro forma” to ease the parties’ respective efforts and those of the Ratsutsky family to emigrate as Jewish-Soviet citizens to the United States. Her central contention is that the divorce was needed because married Jews were otherwise "barred” or "delayed” or burdened with "Soviet red tape” from emigrating.

Supreme Court ruled that there were questions of fact surrounding the allegedly legally coercive circumstances and public policies of the Soviet affecting the parties’ divorce. The Appellate Division disagreed, one Justice dissenting, and ruled that the validity of the Soviet divorce was unassailable and that the parties’ voluntary joint effort to secure the very relief they sought — divorce—was likewise incontestable. That Court, nevertheless, granted Ratsutsky leave to appeal to this Court on a certified question. We answer it in the affirmative as we affirm the order of the Appellate Division granting the former husband, Gotlib, summary judgment dismissing his former wife’s New York divorce action against him.

This divorce action may lie in New York only if the parties are still married. For New York to treat them as still married, it would have to disregard the facially valid and undeniably regular Soviet divorce decree from 1976. Such a departure from settled comity principles can be justified only as a rare exception (Greschler v Greschler, 51 NY2d 368 , 376-377). Some evidentiary basis to support the proposition that the particu

p. 700

lar divorce decree of the foreign country was the product of individualized fraud or coercion or oppression or rested on proximately related public policies fundamentally offensive and inimical to those of this State must be demonstrated (id,.; Feinberg v Feinberg, 40 NY2d 124 ).

This high burden springs from an ordered sense of respect and tolerance for the adjudications of foreign Nations, paralleling that commanded among the States by the Full Faith and Credit Clause of the United States Constitution (US Const, art IV, § 1; see generally, Restatement [Second] of Conflict of Laws § 98). The comity doctrine is also pragmatically necessary to deal properly and fairly with the millions of relational and transactional decrees and determinations that would otherwise be put at risk, uncertainty and undoing in a world of different people, Nations and diverse views and policies.

This Court is not unmindful or unconcerned about judicially noticed and record-referenced policies of oppression against Jews and others by the former Soviet government, which are anathema to New Yorkers and all Americans with respect to human rights, freedom of religion and political expression and travel. Appellant Ratsutsky’s pleadings and summary judgment submissions, however, are insufficient as they relate to the central issues and burdens she carries in this New York litigation context. There is no evidence or inferential potentiality on this record that the contention concerning married Jews being blocked from jointly emigrating out of the Soviet Union was indeed a policy or a fact that directly or adversely affected the particular efforts of these parties in respect to their seeking and obtaining a Soviet divorce in 1976.

This Court requires particularization in claims emanating out of public policy assertions, a term "frequently used in a very vague, loose or inaccurate sense” (Mertz v Mertz, 271 NY 466 , 472). Even if we were to assume that such a particularized repugnant policy existed, there is an insufficient basis in this record to substantiate the view that a question of fact exists relating that policy to the bilateral, voluntarily secured divorce of these parties. This record discloses no cause and effect correlation between the conclusory assertion and the facially valid divorce decree. The equivocality reflected in this record about "delays” and "red tape” in emigrating is not the kind or quantum of specificity our settled principles require to

p. 701

raise a cognizable legal coercion or public policy claim. Indeed, the emigration of appellant’s parents — married Jews — and her married siblings at or about the same time of her own emigration contradicts the very policy which is vaguely asserted as somehow divesting the otherwise valid Soviet divorce decree of legitimate recognition. New York cannot breezily disregard documented facts and facially regular records based on generalized and significantly belated claims (Mertz v Mertz, 271 NY 466 , supra). Such a course of action would seriously undermine the "rare” public policy exception to the appropriate application of the doctrine of comity (Greschler v Greschler, 51 NY2d 368 , 377, supra; see also, Feinberg v Feinberg, 40 NY2d 124 , supra). Indeed, it would substitute an amorphous and inadvisably open-ended escape valve.

We are also satisfied that the conduct of the parties after they immigrated to Brooklyn separately, and then undertook a living arrangement together, cannot in these circumstances be used to deprive the Soviet decree of its validity or recognition in New York. These subsequent events are not enough to create a pertinent question of fact, nor do they manifest a cognizable repudiation or dubiety about the validity of the Soviet divorce. In no event can their subsequent activity be deemed under New York law to constitute a reformalizing of the legally terminated marriage.

Also, it appears uncontested that in 1986 appellant swore in her United States naturalization papers that she was "divorced”. This sworn assertion to the United States Government occurred at a time and place when she was far removed from general or particularized Soviet oppressive policies toward her or toward married Jews wishing to emigrate from that Nation. Instead of any hint that she deemed the divorce decree as anything but valid and binding, she swore and classified her status under the terms and effects of that nine-year-old decree.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Chief Judge Kaye and Judges Simons, Titone, Smith, Levine and Ciparick concur.

Order affirmed, etc.

Cases cited

Weiss v. Garfield 21 AD2d 156 N.Y. App. Div. 1964-05-12 p. 697
People ex rel. Foussier v. Uzielli 23 AD2d 260 N.Y. App. Div. 1965-06-03 p. 697
People ex rel. Foussier v. Uzielli 16 NY2d 1057 N.Y. 1965-12-01 p. 697
Greschler v. Greschler 51 NY2d 368 N.Y. 1980-11-25 at 376-377, at 377 p. 697, p. 699, p. 701
Tamimi v. Tamimi 38 AD2d 197 N.Y. App. Div. 1972-01-24 p. 697
Ehrlich-Bober & Co. v. University of Houston 49 NY2d 574 N.Y. 1980-04-03 p. 697
Mast, Foos & Co. v. Stover Manufacturing Co. 177 US 485 SCOTUS 1900-04-23 p. 697
Williams v. North Carolina 317 US 287 SCOTUS 1942-12-21 p. 697
Russian Socialist Federated Soviet Republic v. Cibrario 235 NY 255 N.Y. 1923-03-06 p. 697
Arpels v. Arpels 8 NY2d 339 N.Y. 1960-11-17 p. 697
Rosenthal v. Reliance Insurance 19 NY2d 712 N.Y. 1967-02-28 p. 697
Levy v. Louisiana ex rel. Charity Hospital 391 US 68 SCOTUS 1968-05-20 p. 697
Labine v. Vincent 401 US 532 SCOTUS 1971-03-29 p. 697
Shan F. v. Francis F. 88 Misc 2d 165 N.Y. Fam. Ct. 1976-09-14 p. 697
Mack v. Arnold Gregory Memorial Hospital 90 AD2d 969 N.Y. App. Div. 1982-11-09 p. 697, p. 698
Mahar v. Mahar 111 AD2d 501 N.Y. App. Div. 1985-05-09 p. 697
Laye v. Shepard 48 Misc 2d 478 N.Y. Sup. Ct. 1965-05-04 p. 697
Killian v. Metropolitan Life Insurance 251 NY 44 N.Y. 1929-05-28 p. 697
Peckham v. Peckham 97 AD2d 578 N.Y. App. Div. 1983-10-06 p. 698
Roman v. Vargas 182 AD2d 543 N.Y. App. Div. 1992-04-21 p. 698
Goldstein v. Town of Liberty 189 AD2d 989 N.Y. App. Div. 1993-01-07 p. 698
Rakowski v. Rakowski 109 AD2d 1 N.Y. App. Div. 1985-06-03 p. 698
Foca-Rodi v. Foca-Rodi 139 Misc 2d 628 N.Y. Sup. Ct. 1988-02-18 p. 698
Sherrer v. Sherrer 334 US 343 SCOTUS 1948-06-07 p. 698
In re Holland 150 AD2d 193 N.Y. App. Div. 1989-05-09 p. 698
Silver v. Silver 36 NY2d 324 N.Y. 1975-03-26 p. 698
In re the Estate of Watts 31 NY2d 491 N.Y. 1973-02-07 p. 698
Claim of Farber v. U. S. Trucking Corp. 26 NY2d 44 N.Y. 1970-01-08 p. 698
Jennings v. Hurt 160 AD2d 576 N.Y. App. Div. 1990-04-24 p. 698
Cucalon v. State 103 Misc 2d 808 N.Y. Ct. Cl. 1980-03-28 p. 698
People v. Allen 27 NY2d 108 N.Y. 1970-07-02 p. 698
Lavi v. Lavi 103 AD2d 400 N.Y. App. Div. 1984-10-01 p. 698
Cross v. Cross 112 AD2d 62 N.Y. App. Div. 1985-07-02 p. 698
In re Nicholson 180 AD2d 685 N.Y. App. Div. 1992-02-10 p. 698
Lansford v. Lansford 96 AD2d 832 N.Y. App. Div. 1983-08-01 p. 698
De Bouhana v. Bouhana 112 Misc 2d 314 N.Y. Sup. Ct. 1982-01-26 p. 698
Kiss v. Kiss 132 Misc 2d 368 N.Y. Sup. Ct. 1986-06-16 p. 698
Koppers Co. v. Empire Bituminous Products, Inc. 35 AD2d 906 N.Y. App. Div. 1970-11-05 p. 698
Koppers Co. v. Empire Bituminous Products, Inc. 30 NY2d 609 N.Y. 1972-03-15 p. 698
Tutak v. Tutak 123 AD2d 758 N.Y. App. Div. 1986-10-20 p. 698
Baron v. Jeffer 131 AD2d 411 N.Y. App. Div. 1987-06-01 p. 698
Elson v. Elson 149 AD2d 141 N.Y. App. Div. 1989-08-28 p. 698
Geiser v. Geiser 115 AD2d 373 N.Y. App. Div. 1985-12-05 p. 698
Berman v. Berman 111 AD2d 141 N.Y. App. Div. 1985-05-30 p. 698
Schine v. Schine 31 NY2d 113 N.Y. 1972-07-07 p. 698
Phillips v. Phillips 70 AD2d 30 N.Y. App. Div. 1979-08-13 p. 698
Feinberg v. Feinberg 40 NY2d 124 N.Y. 1976-06-15 p. 700, p. 701
Mertz v. Mertz 271 NY 466 N.Y. 1936-07-08 at 472 p. 700, p. 701

Statutes and regulations cited

Constitution of the United States of America
- Art. IV, § 1 p. 700