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A Staten Island, N.Y., court has granted a woman’s application to discontinue the divorce proceedings she initiated in 1997, basing its decision on her husband’s seven-year delay in filing an answer. The ruling strengthens Linda Mackin’s potential argument in any subsequent divorce proceeding that the couple’s marital property should be classified and valued based on its worth at the time of the second filing rather than at the time of her original filing in October 1997. Mackin v. Mackin, 5847-1997, also highlights a split between the Appellate Division, 2nd Department, and the state’s other three appellate divisions. In the 2nd Department, where Mackin was heard, the date of the first divorce petition continues to control the valuing of marital property — even if the proceedings are discontinued, as they were here — absent a showing that the parties reconciled or continued their economic partnership. Therefore, if either Mr. or Ms. Mackin files another petition for divorce and Ms. Mackin seeks to set the controlling date for the valuation at the time of the new petition, she must still establish that such a reconciliation or continued partnership took place. When a couple files multiple petitions for divorce in the other three appellate departments, the controlling date for distribution coincides with the commencement of the most recent action, according to matrimonial law specialist Timothy Tippins, a partner at Albany, N.Y.’s O’Connell & Aronowitz and past president of the New York chapter of the American Academy of Matrimonial Lawyers. In those departments, after a party successfully applies to discontinue a petition, the party does not need to establish reconciliation or economic partnership. “One of these days, this division among the departments will hopefully make its way to the Court of Appeals because it really is significant and it’s ripe for adjudication,” said Tippins, a New York Law Journal columnist. In Mackin, Staten Island Acting Supreme Court Justice Rachel A. Adams determined that the salient issue was not whether the parties reconciled or continued an economic relationship, but rather whether they had pursued the divorce. “[T]he court finds that the parties may not have reconciled in a traditional sense but they certainly abandoned this action,” wrote Adams. Ms. Mackin asserted that she and her husband made up following her commencement of the divorce proceedings, and that they both intended to abandon the action. She and her husband may not have lived together, she stated, but they did continue a marital relationship. “Defendant and I vacation together, we made mutual decisions about our children, enjoy dinners and conversations and share our lives,” Ms. Mackin told the court. “Defendant and I continue to celebrate holidays together. Defendant has given me cards evidencing his love for me, his wife. Neither myself nor the defendant date outside of the marriage.” Ms. Mackin has no intention to divorce, according to her attorney, Anne-Louise DePalo of Staten Island. If Mr. Mackin would like to divorce, he should file a petition of his own, she added. Calling Ms. Mackin a “pathological liar,” Mr. Mackin denied that “the parties intended to reconcile or intended to abandon the action,” wrote Adams. Mr. Mackin stated that he moved out of the marital residence “during the Thanksgiving holiday in 1998″ and has lived separately ever since. The only reason he did not file his answer sooner, he contended, was to allow his wife to remain on his medical insurance. LEAVE TO DISCONTINUE Under CPLR 3217(b) and relevant case law, courts maintain discretion to grant applications for leave to discontinue, according to Adams’ decision. Such applications “are generally granted because in the absence of special circumstances a party should not be forced to litigate against his or her wishes,” Adams added, citing Zuckerman v. Zuckerman, 105 AD 2d 782. The judge dismissed Mr. Mackin’s explanation regarding the delay. “His failure to act cannot simply be explained by the claim that the Wife needed health insurance,” she wrote. “Moreover, his only claim of prejudice is that his retirement accounts have increased in value and that he will have to spend more money on counsel fees,” Adams added. “Neither argument is compelling in this instance and is not prejudicial enough for the Court to refuse the request for a discontinuance.” Adams also denied Mr. Mackin’s motion to amend his answer to include a counterclaim. Mr. Mackin’s attorney, Manhattan solo practitioner Jeffrey Shaw, described the potential difference in the valuations of the marital assets as “substantial,” though he declined to provide specific details. “My client worked for seven years after they commenced the action so naturally his retirement accounts would have grown in that time,” said Shaw. Shaw declined to comment on whether his client intended to either appeal or petition for divorce. The case has the potential to unify the state’s case law if the parties pursue a divorce and Ms. Mackin is unsuccessful in establishing either reconciliation or a continuation of the couple’s economic relationship. “In the First, Third and Fourth departments, using the later date of commencement establishes only that [the] intervening assets or increase in value is to be classified as marital property,” said Tippins, citing McMahon v. McMahon, 350826/99. “It does not mean that the non-titled spouse necessarily shares in it,” he added. “In my view, the Second Department gets it wrong in holding that the first action would control. I believe that the other three departments get it correctly,” he added.

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