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Plaintiff Seeks Divorce on the Grounds of Abandonment


The appellant in this particular case is C. Lynn Elson and the respondent in the matter is Barry R. Elson. The case is being heard in the Appellate Division, Second Department of the Supreme Court of the State of New York. A New York Family Lawyer said the question that is put before the court in this case is the impact of an out of state divorce decree on the equitable distribution of the estate that is in the state of New York.

Case Background

The defendant husband in this action resided in the state of Colorado for two years. He pursued an action to obtain a divorce in the state of Colorado after this time. The decree for divorce is dated the 28th of December, 1979. This precludes the effective date of the Equitable Distribution Law of this state by seven months.

The plaintiff wife never left the state of New York to reside in Colorado. A New York Custody Lawyer said she did not appear in court during the action that took place in Colorado. A subsequent Colorado court required the defendant husband to pay child support in the amount of $300 per month.

In June of 1986, the plaintiff began an instant action seeking a divorce on the ground of abandonment. She requested equitable distribution of the marital property and requested maintenance and child support. The plaintiff requested other economic relief if the court found the foreign decree of divorce was valid.

The second cause of action made by the plaintiff specifically stated that she did not appear in the Colorado court and was not served with any process papers regarding the action. A Queens Family Lawyer said she further states that the divorce is colorable and does not have the force to establish the right of the plaintiff to maintenance and the distribution of the marital property.

The plaintiff is requesting an absolute divorce or alternatively if the court finds that the marriage of the plaintiff and defendant has been terminated that the court distribute the marital property and fix both child and maintenance support.

Court Discussion and Decision

The Supreme Court granted the defendants motion for dismissal of the complaint based on the reason that the plaintiff failed to challenge the validity of the divorce decree made by the Colorado court. A Queens Custody Lawyer said the plaintiff appealed this decision stating that she has never been to Colorado and did not accept jurisdiction of the Colorado court regarding this matter.

The court has reviewed each cause of action made by the plaintiff and determined that the Supreme court erred in determining that the plaintiff was barred by laches from asserting these particular claims. The plaintiff has shown that there were ongoing settlement negotiations between the couple throughout the years and both parties had indicated that they would prefer to settle out of court. The defendant did not dispute these allegations. For this reason the order will be modified to grant the motion of the defendant to dismiss the cause of action for maintenance as the plaintiff never requested this during the negotiations and did not request a change in child support during this time as well. The original order made by the Supreme Court will be affirmed with these modifications and the plaintiff will pay the costs regarding these matters.

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