DICKERSON V. THOMPSON
The Fight to Dissolve Civil Unions in New York
August 17, 2011
Author: Amy Schwartz-Wallace
Beginning in 2000, Vermont became the first state in the country to offer civil unions.1 Like many other states, Vermont imposed no residency requirement on celebrants. As a result, many non-Vermonters travelled there to gain access to what was, at the time, the most significant, state-sanctioned legal relationship status granting comprehensive rights and benefits to gay and lesbian couples.2 In fact, within the first two years of the Vermont civil union law’s existence, nearly 400 New York couples entered in Vermont civil unions – the most from any state other than Vermont itself and approximately 11% of all who entered in Vermont civil unions during that period.3 Numerous states 4 have since extended many or all of the rights afforded by their state law to marriages or some other type of formalized same-sex relationship, such as civil union or domestic partnership. Civil unions were previously available in New Hampshire, Connecticut and Vermont before those states enacted marriage equality. Presently, civil unions are available in New Jersey, Hawaii, Rhode Island, Delaware and Illinois. 5
Parties to a state-created legal status, such as marriage or civil union, cannot simply unbind themselves at will. States require a judicial dissolution process through the court system. As noted in Boddie v. Connecticut,6 such judicial process was acknowledged to be “not only the paramount dispute-resolution technique, but the only one.” Additionally, states impose residency requirements as a jurisdictional pre-condition for such judicial dissolution and divorce. For example, to obtain dissolution of a civil union under Vermont’s Domestic Relations Law, at least one of the parties must reside in Vermont for at least six months prior to the commencement of an action and for one year before a final hearing on the matter. Where same-sex couples, who reside in one of the civil union states, legally formalize their relationship under that state’s law, they will need to instigate court proceedings in order to judicially dissolve their unions when they end. For these couples, pursuit of dissolution is relatively simple.
Dissolving Non-Resident Civil Unions
However, non-resident, same-sex couples who solemnized their relationships with a civil union in a celebration state ,such as Vermont, are not as fortunate. When their relationships sour, these couples cannot commence dissolution proceedings there because of statutory residency hurdles. Even more alarming, where their home state does not recognize their civil union status or otherwise provide a specific statutory mechanism for dissolution, these couples have often been relegated to a kind of legal purgatory because dissolution was improbable, if not impossible. Many couples in such a predicament physically separated, but remained legally shackled to their former partner.7 While legal relationship recognition and marriage equality advances have supported many same-sex couples, in these instances such advances impose new legal challenges. This was the precise dilemma faced by Audrey Dickerson.
Lifelong residents of New York, Audrey Dickerson and Sonya Thompson travelled to Vermont in 2003 and entered into a civil union. They returned to their New York home and began their lives together as “civilly unioned” spouses. However, their relationship deteriorated as a result of intimate partner abuse and they separated in spring 2006. At the time their relationship ended, the parties had no children in common, nor did they have joint debts or other property to divide. The only outstanding matter still related to their legal relationship was the civil union itself, as well as the ongoing attendant rights and obligations that flowed directly from such legal status. Desiring to fully sever all ties to her former partner and move forward with her life, Ms. Dickerson reached out for legal assistance.
Together with pro bono counsel, Geri Pomerantz, Empire Justice Center undertook representation of Ms. Dickerson in 2007. Extensive research determined that commencement of an action under New York Supreme Court’s broad equity jurisdiction was the most appropriate posture; her need for dissolution relief was significant, the request novel and, otherwise, without any other specific statutory mechanism in this state. Additionally a judgment declaring the respective rights and responsibilities of the parties following judicial dissolution of her civil union was sought. The complaint specifically did not request divorce-related relief under New York’ Domestic Relations Law, as divorce appeared to be inapplicable for dissolving out-of-state civil unions because of its specific application to marriages.8
Ms. Dickerson commenced her action in Schenectady County Supreme Court in 2007. After Ms. Thompson failed to respond to the complaint, Ms. Dickerson then moved for a default judgment granting the requested relief. Despite the fact that a Supreme Court possesses both general and equitable jurisdiction, the trial court dismissed Ms. Dickerson’s complaint sua sponte. The court opined that New York’s public policy did not permit legal recognition of any same-sex relationships, and that the exercise of its equitable powers to dissolve the civil union and issue a declaratory judgment freeing her of the incidents of the civil union status, was a unique remedy that would impermissibly usurp the Legislature’s authority to determine whether same-sex relationships are to be legally recognized. Ms. Dickerson appealed arguing that the court ignored existing (and growing) New York jurisprudence, state law, and policies recognizing same-sex relationships. Further, she argued that as a court of law and of general and equity jurisdiction, there was no question that Supreme Court possessed the requisite subject matter jurisdiction necessary to adjudicate a request for both equitable and statutory declaratory judgment relief.
In its March 2010 landmark ruling,9 the Third Department unanimously agreed with Ms. Dickerson and held that the Supreme Court was, indeed, competent to hear and determine a dissolution case such as hers. In support of its position, the appellate court acknowledged and detailed New York’s evolving public policies recognizing many types of same-sex relationships. The court also held that New York may recognize Ms. Dickerson’s civil union under principles of comity. Because the lower court never moved beyond subject matter jurisdiction, the matter was remanded back for a determination of what relief was available on the merits.
On remand, the lower court finally entertained Ms. Dickerson’s motion for a default judgment, as instructed by the appellate court. However, during this next phase of litigation, the trial court provided only partial relief when it granted a judgment relieving the parties of the rights and obligations attendant to the civil union, but failed to dissolve the relationship itself. Despite the appellate court’s holding to the contrary in Dickerson I, the trial court again refused to dissolve the relationship, ruling that it had limited authority and was powerless to grant the requested relief because New York had not established any specific statutory mechanism by which a court could grant dissolution of a civil union entered into in another state. In denying the dissolution, the lower court made no mention of equity principles and their application to the equitable matter at bar.
Ms. Dickerson returned to the Appellate Division a second time. On this occasion, she argued that Supreme Court’s general and equity jurisdiction gave the court sufficient authority to dissolve the civil union, precisely because no other court in New York had the power or the competence to entertain such an action. Further, detailing long-standing equity principles, she argued that the absence of a legislatively-created mechanism for affording relief was a critical factor that militated in favor of crafting an equitable remedy for a litigant in need of one. Finally, she argued that, in the absence of a definitive civil union dissolution, the declaration alone was an inadequate, incomplete, and confusing remedy that left Ms. Dickerson interminably bound with significant ongoing actual and potential legal consequences. Specifically, in many jurisdictions she was precluded from entering into another state-created, same-sex legal relationship with a new partner because the intact civil union left her unable to truthfully affirm that there were no outstanding legal impediments.10 Given the growing number of jurisdictions offering or recognizing civil unions, as well as the increasing levels of comity-based respect for them in New York, the precise nature of Ms. Dickerson’s relationship with and to Ms. Thompson was complicated by the grant of incomplete relief. She was also concerned that uncertainty regarding her status left open the possibility of ongoing legal questions and litigation related to matters such as parentage,11 medical decision-making, debt, and inheritance.
Subsequent to Dickerson I, other Supreme Courts around the state (Erie, New York, Monroe, Tompkins, Onondaga, Kings and Westchester) understood that case to mean that they had the power to equitably dissolve civil unions in New York and did so with relative ease.12 It was, therefore, particularly ironic that the only civil union dissolution request which had been denied since the decision in Dickerson I was Audrey Dickerson’s. It was clear that civilly unioned parties around the state were in need of dissolution help and Dickerson I provided the necessary precedent that assured Supreme Courts in all four Departments of their power and competence to entertain these cases. As part of the litigation strategy, plaintiff actively collected these unpublished decisions/orders from litigators statewide who had successfully used Dickerson I to obtain dissolution relief for their own clients. Those cases were then submitted to the Appellate Division, along with our brief.
Third Department Knockout
In another landmark decision issued on July 21, 2011, Audrey Dickerson again prevailed before the Third Department.13 Agreeing with the decision to commence the case within the court’s broad equity jurisdiction, Justice Peters wrote “[w]hile plaintiff lacks a remedy at law, the dissolution of a civil union falls squarely within the scope of the Supreme Court’s broad equity jurisdiction.” The appellate court determined that given Ms. Dickerson’s need for a legal remedy, “the exercise of Supreme Court’s equitable powers to grant a dissolution of the civil union was clearly warranted here.”
The appellate court also agreed that, notwithstanding the declaratory judgment, as the only relief it provided resulted “in uncertainty and confusion regarding the precise nature of the parties’ legal relationship, particularly with respect to the various rights that New York affords to parties to a civil union.” Specifically citing the Court of Appeals 2011 ruling in Debra H. v. Janice R, the appellate court was concerned that if either Ms. Dickerson or Ms. Thompson bore a child while still bound in union, parentage may vest in the other party despite their long estrangement. Also troubling to the court was Ms. Dickerson’s inability to move on with another partner and enter into any other type of civil union, marriage,14 or domestic partnership in New York or elsewhere because of the legal disability imposed by the intact civil union. The majority opinion noted:
These chilling effects, both potential and actual, flowing from plaintiff’s continued status as a partner to the civil union further support our conclusion that the exercise of the court’s equitable power to dissolve the parties’ civil union was warranted.
Recognizing the strange irony afflicting Ms. Dickerson, the court aptly stated, “Indeed, it would be patently incongruous for the courts of this state to render civil unions more durable than marriages.” Reviewing the case’s uncontested evidence, the appellate court applied Vermont’s dissolution law, and determined that equity would be served by granting Ms. Dickerson the requested relief. They further determined that by failing to invoke its equitable powers to provide this relief, the lower court erred and abused its discretion. The court modified the judgment below in pertinent part and directly dissolved Ms. Dickerson’s civil union on the law themselves. As this was a default, the case is finally over and Ms. Dickerson is free.
While all five judges on the panel agreed with the outcome, Justices Lahtinen and Malone wrote a separate concurrence opining, among other things, that the trial court did not abuse its discretion by refusing to dissolve the union itself. However, the concurring opinion noted, given New York’s evolving public policy on same-sex relationship dissolution, the majority’s substitution of its own discretion was appropriate.
The Dickerson Legacy
Most importantly, for Audrey Dickerson, justice has been served. Beyond that, the significance of these two decisions for unhappy, civilly unioned, same-sex couples cannot be understated – there is now a judicially sanctioned way out of legal purgatory.15 Together these rulings have provided a clear framework for other courts to follow in the absence of specific legislation. As a result:
- New York may recognize out-of-state civil unions as a matter of comity
- An action for dissolution of an out-of-state civil union should be commenced in Supreme Court seeking exercise of that court’s broad equity jurisdiction
- Supreme Court should apply that state’s law to determine if sufficient grounds exist entitling parties to a dissolution in the celebration state
- If grounds are sufficient, the Supreme Court must then determine if equity would be served by granting dissolution relief
In essence, Dickerson I began charting the course and Dickerson II completed the roadmap. We hope that, as the first appellate ruling in the country on point, these cases will provide meaningful precedent to other states as they, too, wrestle with these critical issues.
1 In 2009, Vermont changed its law to provide same-sex couples with marriage rights and benefits. See Vt. Stat. Ann. tit.15 §8 (eff. Sept. 1, 2009). However, existing civil unions entered in that state remain valid and continue to be recognized as civil unions.
2 During the first four years civil unions were offered in Vermont, more than 75% of Vermont civil unions were obtained by non-Vermonters. See Williams Institute, Marriage, Registration and Dissolution by Same-Sex Couples in the U.S. (July 2008), p. 12 fig. 7, (available at: http://repositories.cdlib.org/cgi/viewcontent.cgi?article=1005&context=uclalaw/Williams).
3 See Report of the Vt. Civil Union Review Comm’n, Finding 3 (July 2002) (available at: http://www.leg.state.vt.us/baker/Final%20CURC%20Report%20for%202002.pdf ).
4 The National Conference of State Legislatures tracks this information at: http://www.ncsl.org/default.aspx?tabid=16430.
5 Despite the general view from LGBT community that civil unions provide only a “second-class status”, many of these states passed their civil union legislation in 2011. Notably, except for NJ and RI, these other civil union states all have existing state laws that define “marriage” as between “one man and one woman”, so marriage equality is not a viable option at this time.
6 401 U.S. 371, 376 (1971).
7 Anecdotally, many couples in this position handled all property, financial ,and custody matters either via contract or other types of court proceedings, but for dissolution. Alternatively, some couples just moved on without formal settlement and had children, acquired property, and the like. Apart from dissolution, the Dickerson v. Thompson precedents do not directly address any other issues attendant to the civil union. See, for example, Wesley v. Smith-Lasofsky, NYLJ, Pg. 30, Vol. 246, No. 21 (August 1, 2011)(holding that child adopted subsequent to civilly-unioned parties’ break-up, was not a child of the marriage). As the law evolves, we expect to see more litigation around these issues at some future date.
8 Langan v. State Farm Fire and Casualty, 48 A.D.3d 76, 79-81 (3rd Dept. 2007); B.S. v. F.B.,883 N.Y.S.2d 458, 2009 N.Y. Slip. Op. 29315 (Sup. Ct., Westchester County, July 15, 2009).
9 Dickerson v. Thompson, 73 A.D.3d 52 (3rd Dept. 2010).
10 The basic principle that parties entering a marriage, civil union, or domestic partnership must be single may be applied to a party to a sister state’s civil union given that New York, and other jurisdictions, may recognize that legal status as a matter of comity. See, for example, pending litigation in Massachusetts, Todd Elia-Warnken v. Richard Elia, Case # 2011-P-0069, Commonwealth of Massachusetts Appeals Court (appellant arguing that his subsequent marriage to his partner was void because partner failed to dissolve his civil union prior to entry).
11 In 2010, the Court of Appeals specifically accorded comity to a Vermont civil union to recognize parentage created by the legal status in New York. Debra H. v. Janice R., 4 N.Y.3d 576, 601 (2010).
12 Most of these decisions are cited in FN 4 in Dickerson II; see also Parker v. Waronker, 30 Misc.3d 917 (Sup. Ct. Onondaga Co.2010).
13 Dickerson v. Thompson, — N.Y.S.2d —-, 2011 WL 2899241 (N.Y.A.D. 3 Dept.), 2011 N.Y. Slip Op. 06009.
14 After July 24, 2011’s implementation of the marriage equity law Ms. Dickerson might also have been precluded from marrying a new partner in New York.
15 Karen Hartman, “Bound in a Gay Union by a State Denying It”, New York Times (July 15, 2011) (available online at: http://www.nytimes.com/2011/07/17/nyregion/bound-in-a-gay-union-by-a-state-that-didnt-recognize-it.html?pagewanted=2&_r=1&ref=nyregion).