A New York man in the midst of a divorce cannot sue his mother-in-law in Pennsylvania court over a property in Pennsylvania, a Manhattan judge has ruled, citing a 2009 law that automatically freezes the assets of the parties when a divorce action is filed.
Manhattan Supreme Court Justice Ellen Gesmer (See Profile) ruled on Feb. 6 in R.P. v. L.P., 350040/11, that New York’s Domestic Relations Law 236(B)(2)(b) bars the Pennsylvania action, which seeks partition of real property co-owned by the husband, wife and wife’s mother.
The parties and the wife’s mother bought the property in Pennsylvania in 2004. It is one-third owned by the mother and two-thirds by the husband and wife.
The wife, a pharmacist who works part-time, filed for divorce in June 2011. In October 2011, the parties entered into a stipulation under which the husband, an orthopedic surgeon, agreed to pay her $12,500 per month in temporary maintenance and $5,000 per month in child support, as well as attorneys fees.
In December 2012, Gesmer wrote in an order quashing the husband’s subpoenas on the wife’s parents that she was unlikely to award ownership of the Pennsylvania property to the husband, given his “poor relationship” with his wife’s parents, but that he could be entitled to distribution based on his share of the property.
Following that order, the husband sought to file an action in Court of Common Pleas of Pike County, Penn., seeking partition of the property. He did not seek partition between himself and his wife, but only between the couple and the wife’s mother. In effect, he sought to compel the sale of the property and divide the proceeds.
However, the wife obtained a temporary restraining order enjoining him from filing that action, and moved for a preliminary injunction.
Gesmer, granting that motion, said that the Domestic Relations Law bars the Pennsylvania suit. She rejected the husband’s argument that Pennsylvania law allows him to commence the suit.
The relevant part of the Domestic Relations Law states, “Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney’s fees in connection with this action.”
The provision was added to the law in 2009 to prevent parties in a divorce from scrambling to get possession of property at the beginning of a divorce action.
“The Husband’s partition action would effectively result in one or several of the prohibited actions, without the Wife’s consent, and would most certainly not be in the ordinary course of business,” Gesmer wrote.
“While the court agrees with the Husband that Pennsylvania is the proper venue for a partition proceeding with regard to the Pennsylvania residence, such a proceeding is properly commenced only after resolution of the parties’ claims as against each other as to equitable distribution of their interest in the Pennsylvania Residence,” the judge said.
Laurence Greenberg, who represents the wife, said the decision was the first case to address the application of the 2009 law to an out-of-state partition action.
“It’s unique,” he said.
The husband was represented on the motion for an injunction by Michael Stutman, a partner at Mishcon de Reya New York, who is no longer on the case.
The husband’s current attorney, Allen Drexel of Drexel LLC, declined to comment.
@|Brendan Pierson can be contacted at firstname.lastname@example.org.