RONALD JOSEPH DEFEO,
Plaintiff, v. GERALDINE A. DEFEO, Defendant.
RJI No. 55-93-00010, Index No. 93-0023
SUPREME COURT OF NEW YORK, ULSTER COUNTY
159 Misc. 2d 490; 605 N.Y.S.2d 202; 1993 N.Y. Misc. LEXIS
472
September 24, 1993, Decided
NOTICE: [***1]
EDITED FOR PUBLICATION
CASE SUMMARY
PROCEDURAL POSTURE: Plaintiff husband, an incarcerated pro
se litigant, filed a motion for leave to renew his previous
motion which sought a divorce from defendant wife pursuant
to the provisions of N.Y.
Dom. Rel. Law § 170(2) on the grounds of abandonment.
OVERVIEW: The court found in its previous decision that
the husband, as an incarcerated spouse, was unable to prove
a voluntary separation by his wife and that her intent not
to resume cohabitation was unjustified. The court accepted
his motion to renew because the husband had provided a valid
excuse for not submitting the additional information in
his original application. In his new evidence, the husband
stated that he had met and married his wife while he was
serving a 150-year sentence. The court found that unlike
a traditional marriage, all visitation, communication, and
marital relations were premised upon the parties working
within this restrictive setting. Thus, when his wife told
her husband that she no longer loved him and would not visit,
such act constituted a voluntary separation of one spouse
from the other with intent not to resume cohabitation within
the confines of this marital relation. Such was done without
the consent of the other and without justification. The
court held that the husband had sustained his burden to
show that a judgment of divorce should be issued on the
grounds of abandonment notwithstanding the fact that the
moving party was the incarcerated spouse.
OUTCOME: The court issued a judgment of divorce for the
husband on the grounds of abandonment.
CORE TERMS: incarcerated, divorce, marriage, spouse, abandonment,
cohabitation, resume, voluntary separation, serving, renewal,
Domestic Relations Law, years to life, repeated, married,
coming, pro-se, loved, original application, prior motion,
imprisonment, marital relations, marital relation, motion
to renew, life sentence, penitentiary, restrictive, visitation,
parameters, awareness, domicile
1. Plaintiff, an incarcerated husband and pro se litigant,
is entitled to renew his motion seeking a divorce where
he provided a valid excuse for not submitting additional
information in his original application for divorce, even
though the information was in existence at the time of the
earlier submission. A Motion to renew must be based upon
newly discovered material facts or evidence which existed
at the time the prior motion was made, but were unknown
to the party now seeking renewal. Nevertheless, here, it
is clear that plaintiff failed to include relevant facts
detailing the terms of his imprisonment and the circumstances
under which he met defendant. If originally alleged, such
facts might have been determinative of the original decision
rendered by the court in this matter.
Husband and Wife - Divorce - Default Judgment - Incarcerated
Spouse
2. Plaintiff incarcerated husband is entitled to a default
pursuant to Domestic Relations Law §
170 (2), upon the ground of abandonment, where defendant,
who married plaintiff with the knowledge that he was serving
a sentence of 150 years to life, informed plaintiff that
she no longer loved him and would not be coming back to
visit any longer, despite repeated requests to do so by
plaintiff, because this act constituted a voluntary separation
of one spouse from the other with intent not to resume cohabitation
within the confines of this marital relation. The marital
domicile was a penitentiary and the expectation of the parties
with respect to the parameters of such marriage was based
upon defendant's awareness that plaintiff was serving a
life sentence when the marriage commenced. Unlike a traditional
marriage, all visitation, communication and marital relations
were premised upon the parties working within this restrictive
setting, acknowledging its limitations. Thus, defendant's
actions done without the consent of plaintiff and without
justification constitute abandonment.
COUNSEL: Appearances: Both parties
appeared pro se.
JUDGES: PETERS
OPINION BY: KAREN K. PETERS
OPINION:
[*491] [**202] HON. KAREN K. PETERS, J.S.C.
ORDER ON MOTION FOR RENEWAL
PETERS, KAREN K. J: Plaintiff, a
pro-se litigant currently incarcerated at the Eastern Correctional
Facility, moves for leave to renew so much of the previous
motion which sought a divorce pursuant to the provisions
of section
170(2) of the Domestic Relations Law. In support thereof,
plaintiff alleges facts which, although in existence at
the time of the prior motion, were not presented to this
Court in the underlying papers submitted in connection therewith.
Such underlying papers primarily consisted of standardized
forms typically completed by pro-se litigants seeking an
uncontested divorce.
It is well settled that "a motion
to renew must be based upon newly discovered material facts
or evidence which existed at the time the prior motion was
made, but were unknown to the party now seeking renewal."
Jones v Marcy, 135 AD2d 887, 888, 522 N.Y.S.2d 285. While
the plaintiff herein admits that the information he now
seeks to have this Court consider was in existence at the
time of his [***2] earlier submission, it is
clear that he failed to include relevant facts detailing
the terms of his imprisonment and the circumstances under
which he met the defendant. If originally alleged, such
facts might have been determinative of the original decision
rendered by the Court in this matter. This Court finds that
since the plaintiff, as a pro-se litigant, has provided
a valid excuse for not submitting the additional information
in his original application, this Court will entertain the
motion to renew. See generally Barnes
v State of New York, 159 AD2d 753, 552 N.Y.S.2d 57.
See also Innovative
Chemical Corp. v Howe Plastics & Chemical Companies,
Inc., 164 AD2d 965; Five Riverside Drive Towers Corp. v
Chenango, Ltd., 111 AD2d 1025, 490 N.Y.S.2d 339.
The original application for a default
divorce pursuant to the provisions of section
170(2) of the Domestic Relations Law was [**203]
denied on the grounds that plaintiff failed to sustain his
burden to show sufficient proof of 1) "a voluntary
separation [*492] of one spouse from the other;
2) with intent not to resume cohabitation; 3) without the
consent of the other spouse; and 4) without justification."
Foster, Freed, [***3] Brandes, Law and the Family,
NY Vol.1, Section 6:15 pg. 432. (2nd Edition). While plaintiff
had sustained his burden with respect to defendant's intent
not to resume cohabitation with him while he was incarcerated,
this Court found by Decision and Order dated March 30, 1993,
that plaintiff as an incarcerated spouse, was unable to
prove a voluntary separation by the defendant and that her
intent not to resume cohabitation was unjustified. Hence,
unable to sustain the "fault standard of abandonment"
as a ground for divorce, this Court denied the relief requested
therein. See Defeo v Defeo, N.Y.L.J., June 1, 1993, at 32,
Col. 5.
In the instant motion, plaintiff
alleges that his prior papers failed to include that he
was arrested on November 15, 1974 and charged with six counts
of murder in the second degree. On December 4, 1975, plaintiff
was sentenced to one hundred and fifty years to life. As
a result thereof, plaintiff has been incarcerated since
November 15, 1975 to the present time which consists of
approximately eighteen and one half years. Plaintiff states
that he first met the defendant, Geraldine A. DeFeo, in
January of 1985 while he was incarcerated at the Auburn
Correctional [***4] Facility. Their entire courtship
leading to the decision to marry occurred exclusively while
he was incarcerated. Prior to marrying, plaintiff's Correction
Counsellor advised defendant of petitioner's extensive term
of incarceration and his parole status. Notwithstanding
the above, while still incarcerated at the Sullivan Correctional
Facility, plaintiff and the defendant were married in the
facility visiting room on July 5, 1989.
Plaintiff contends that cases cited
in support of this Court's prior decision denying him a
divorce on the ground of abandonment analyzed the fault
grounds for a divorce when a marriage occurred prior to
the incarceration of one's spouse. Plaintiff notes as follows:
"in that situation, the cases
hold that the reason the parties are separated is the criminal
conduct of the plaintiff, and that he should not be entitled
to grounds for a divorce based on his illegal conduct. The
courts prevent this by stating that the wife was justified
in refusing to maintain contact with the plaintiff after
he went to prison. The fact of the matter is that plaintiff
. . . and the defendant . . . were married after the plaintiff
. . . had been sentenced. The fact also [***5]
remains that the defendant . . . was not justified in abandoning
the plaintiff . . . because of my [*493] imprisonment,
while she voluntarily undertook to start the marriage while
plaintiff was serving a one hundred and fifty years to life
sentence."
Aff. of Defeo, dated June 4, 1993 at par. 9-11.
With such new evidence before the
Court, this Court finds that plaintiff's contention that
on or about March 1, 1991, defendant without cause or justification,
abandoned him with intent not to return when she came to
the Eastern Correctional Facility visiting room and informed
him that she would not be coming back because she no longer
loved him and, has refused to visit or otherwise communicate
with plaintiff despite repeated requests to do so, constitutes
sufficient grounds for this Court to grant a divorce based
upon the ground of abandonment. This Court finds that the
marital domicile was a penitentiary, whether it be the Auburn
Correctional Facility, the Sullivan Correctional Facility
or the Eastern Correctional Facility and that the expectation
of the parties with respect to parameters of such marriage
was based upon the defendant's keen awareness that the plaintiff
was serving a [***6] one hundred and fifty year
to life sentence when the marriage commenced. Therefore,
unlike a traditional marriage, all visitation, communication
and marital relations were premised upon the parties working
within this restrictive setting, acknowledging its limitations.
[**204] When defendant informed
plaintiff on or about March 1, 1991 that she no longer loved
him and would not be coming back to visit any longer, despite
repeated requests to do so by the plaintiff, this Court
finds that such act constituted a voluntary separation of
one spouse from the other with intent not to resume cohabitation
within the confines of this marital relation. Upon the facts
herein, such was done without the consent of the other and
without justification. Accordingly, this Court finds that
plaintiff has sustained his burden to show that a judgment
of divorce should be issued in the instant case on the grounds
of abandonment notwithstanding the fact that the moving
party is the incarcerated spouse.
DATED: 9/24/93
Kingston, NY
HON. KAREN K. PETERS
J.S.C. |