Dissolution of Out-of-State Civil Unions in New York: Dickerson v. Thompson

By Rebekah Addy, Albany Government Law Review


On July 24, 2011, the New York Legislature enacted the Marriage Equality Act, which permits marriage between persons of the same-sex and provides that valid same-sex marriages entered into outside of New York will be recognized and treated the same as in-state marriages.[1]  The New York State Bar Association (“NYSBA”) “has long supported the new law” stating that it is a “triumph for equality” granting “important protections and legal rights” to same-sex couples.[2]  However, NYSBA president Vincent E. Doyle III also noted that “many areas of the law are unclear” and “there are many open issues about how the law will be applied.”[3]  In light of that recognition, NYSBA produced a Marriage Equality FAQ brochure developed by a panel of legal experts, dated July 18, 2011, seeking to help “couples, attorneys and others navigate the new legal landscape.”[4]

One of the questions addressed in the N.Y. Marriage Equality FAQ was: “[w]hat if I entered into a civil union or domestic partnership in another jurisdiction with someone else?”[5] Answer,

The law of the state that issued your union or partnership may contain limitations on any subsequent marriage, and it is unclear whether New York would treat the prior civil union or domestic partnership as an impediment to a marriage in New York.  It is recommended that you dissolve the prior union or partnership. It may be possible to do so in New York courts, but you may have to obtain the dissolution in the state that issued it. If you are married in New York at the same time you still have a civil union or domestic partnership with someone else, it is unclear whether your marriage could be voided.[6]  [emphasis added].

 Justice for Audrey Dickerson: Resolving Some “Open Issues”

Notably, on July 21, 2011, three days prior to the effective date of the Marriage Equality Act, the New York Supreme Court, Appellate Division Third Judicial Department, decided and entered a landmark opinion, Dickerson v. Thompson (“Dickerson II”), in which the Court issued a judgment granting the dissolution of an out-of-state civil union entered into by New York residents. [7]  Although the opinion was rendered in close proximity to the effective date of the Marriage Equality Act, the action was initially commenced in November 2007.  Thus, in order to fully understand how the Appellate Division reached its final conclusion, without regard to the new legislation, an analysis of the decisional history is instructive.

Public Policy: Dickerson I

In November 2007, plaintiff Audrey Dickerson commenced an action in the Supreme Court of Schenectady County for equitable and declaratory relief, seeking dissolution of a civil union entered into in the state of Vermont.  On November 13, 2008, Justice Reilly issued an order which “sua sponte, dismissed the complaint for lack of subject matter jurisdiction.”[8]

Plaintiff, and defendant Sonya Thompson, had traveled to Vermont in April 2003 and entered into a civil union.[9]  The parties returned to New York and were residents of and domiciled in New York at all times during their relationship.[10]  Vermont law has offered civil unions since 2000, when it became the first state in the county to offer civil unions, and does not impose residency requirements on celebrants.[11]  By 2006 the relationship between the plaintiff and defendant had deteriorated.  The “uncontested evidence” submitted by the plaintiff demonstrated that during the relationship the defendant had “subjected her to violent physical abuse on several occasions[,] . . . was verbally abusive to both her and her autistic son on a daily basis, . . . stole from [the plaintiff], resulting in defendant’s criminal conviction of grand larceny, and removed the license plates from plaintiff’s vehicle to prevent her and her son from escaping defendant’s abusive conduct.”[12]  The parties ceased cohabitation in April 2006; however, the plaintiff was “[u]nable to obtain a dissolution of the civil union in Vermont since that state’s civil union law requires that one of the parties be a resident of Vermont for one year preceding the date of the final hearing.”[13]

Nevertheless, the Supreme Court dismissed the complaint for lack of subject matter jurisdiction, finding that New York’s public policy “does not recognize any legal relationship between same-sex partners, does not confer any rights or impose any obligations on such a relationship and does not afford any means by which to dissolve such a relationship.”[14]  Upon plaintiffs’ appeal, the Appellate Division, Third Department, reversed and remitted the matter in Dickerson v. Thompson (“Dickerson I”), narrowly holding that the Supreme Court did have subject matter jurisdiction over the claim under the powers of equity vested upon Supreme Courts by the New York State Constitution.[15]

The Appellate Division first determined, citing New York domestic partnership laws, executive orders, and decisional law, that it is the public policy of New York to respect, uphold, and protect parties to same sex-sex relationships, and thus, as a matter of comity, New York courts may recognize the civil union status of the parties. [16]  Second, the court considered whether it is within the powers of the Supreme Court to entertain an action for dissolution of that civil union.[17]  The court found that under the N.Y. Constitution the Supreme Court is granted “general original jurisdiction in law and equity;”[18] and as such, it “is competent to entertain all causes of action unless its jurisdiction has been specifically proscribed.”[19]  Further, it found that although New York has no “specific mechanism” for dissolving civil unions, it has not “exercised its power, by statute or other legislative enactment, to prohibit an action for dissolution of a civil union.”[20]

Consequently, the Appellate Division concluded that pursuant to the Supreme Courts’ powers of equity it was “competent to adjudicate the case,” since its jurisdiction has not been proscribed and the matter involves a “dispute for which ‘adequate relief by means of an existing form of action is [un]available to the plaintiff.”[21]  Nevertheless, since the decision only considered the narrow issue on appeal, the Appellate Division opinion concluded that the Supreme Court is vested with subject matter jurisdiction to adjudicate the dispute, but remanded the matter for consideration of the separate questions as to “whether and to what extent relief may ultimately be afforded to the parties.”[22]

The Extent of Equity: Dickerson II

On remand, the Supreme Court partially denied plaintiff’s motion for a default judgment granting a dissolution of the parties’ civil union.[23]  The order granted the portion of the motion “seeking a declaration relieving the parties of all rights and obligations arising from the civil union, but denied [the portion] of the motion seeking a dissolution of the union.”[24]  The Supreme Court concluded that absent “any legislatively created mechanism in New York by which a court could grant the dissolution of a civil union entered into in another state, it was powerless to grant the requested relief.”[25]  Plaintiff again appealed to the Appellate Division, Third Judicial Department, which entered a decision on July 21, 2011 in Dickerson v. Thompson (Dickerson II) that reversed the order of Supreme Court partially denying plaintiff’s motion and granted Audrey Dickerson a dissolution of the parties’ Vermont civil union.[26]

In a strongly worded opinion, the Appellate Division held that since the plaintiff lacks a remedy at law, the dissolution of the out of state civil union “falls squarely within the scope of Supreme Court’s broad equity jurisdiction.”[27]  The Court explained that the “power of equity is as broad as equity and justice require,” noting that its “essence” is “to [mold] each decree to the necessities of the particular case.”[28]  Therefore, having held in Dickerson I that the Supreme Court has equity jurisdiction over the matter of the action, the Supreme Court, therefore, also had “the power to dispose of all matters at issue and to grant complete relief” (emphasis added).[29]  Specifically disagreeing with the Supreme Court’s conclusion that it was powerless to grant the relief in the “absence of any direct grant of legislative power,” the Appellate Division found that the “Supreme Court has the ‘inherent authority . . . to fashion whatever remedies are required for the resolution of justiciable disputes and the protection of the rights of citizens,’ tempered only by our Constitution and statutes.” [30]

In Audrey Dickerson’s case, the residence requirements of Vermont precluded her from obtaining a dissolution in Vermont and further the provisions of the Domestic Relations Law (DRL) of New York § 170 solely provide for divorce and dissolution of a marriage.[31]  Furthermore, after reciting the uncontested evidence which detailed the abusive nature of the relationship, thus demonstrating that a “resumption of the civil union is not probable,” the Court concluded that but-for Vermont’s residency requirement, the plaintiff would be entitled to a dissolution of the civil union in Vermont.[32]  Therefore, the Appellate Division held that “equity would be served by granting . . . the requested relief” and that the Supreme Court “erred in declining to invoke its equitable powers to do so.”[33]

Notably, the opinion continued to comment upon the inadequate relief afforded by the Supreme Court’s declaration which freed the “parties from the rights and obligations flowing from the civil union.”[34]  The court stated that in the absence of a judgment granting dissolution, the parties were left “interminably bound as partners to the union” and, further, that it would be “patently incongruous for the courts of this state to render civil unions more durable than marriages.”[35]  The Appellate Division provided examples of the “chilling effects, both potential and actual” of the parties continued legal status as partners in a civil union: the parties would be unable to enter another civil union or marriage in Vermont and analogous relationships in other jurisdictions; it would bar the parties from the protections available under New York City’s Domestic Partnership law; and it results in “uncertainty and confusion regarding the precise nature” of the parties continued legal relationship, citing presumptions of parentage afforded to a partner of a civil union when determining custodial rights over children born during a valid legal civil union.[36]

Conclusion: Significance of Dickerson for Same-Sex Couples

The two Dickerson opinions have remarkable significance for New York same-sex couples that have already entered into a civil union and seek dissolution, especially in light of the enactment of the Marriage Equality Act which would allow such couples, upon dissolution, to enjoy the equivalent legal rights and protections of a marriage.

The Dickerson I and II “roadmap” is the “first appellate ruling in the country on point,” and provides a “clear framework for other courts to follow in the absence of specific legislation.”[37]  The meaningful precedent established by the Appellate Division, Third Department, furthers equality for same-sex couples by creating a “judicially sanctioned way out of legal purgatory,”[38] and, in effect, provides an answer to the NYSBA question regarding the outcome for an individual who had entered into a civil union or domestic partnership in another state prior to the enactment of the Marriage Equality Act.[39]  This foundational decision establishes that the public policy of New York is to recognize out-of-state civil unions as a matter of comity; it provides the legal mechanism to obtain dissolution of such unions, an action in Supreme Court under its equity jurisdiction; it resolves a choice of law issue by concluding that, when evaluating the merits of the claim in equity, Supreme Courts should apply the celebration state’s law to determine if sufficient grounds exist for rendering a dissolution; and finally, it establishes that the adequate equitable relief to be ultimately afforded is a dissolution of the civil union.[40]

[1] Marriage Equality Act, 2011 N.Y. Laws ch. 95.

[2] News Release, N.Y. State Bar Ass’n, Same-Sex Marriage in New York Effective Sunday, July 24: State Bar Offers Legal Guides for Couples and Attorneys (Jul. 21, 2011), http://www.nysba.org/AM/Template.cfm?Section=Home&ContentID=53158&Template=/CM/HTMLDisplay.cfm.

[3] Id.

[4] Id.

[5] N.Y State Bar Ass’n, New York Marriage Equality: Frequently Asked Questions (FAQ) 5, http://www.nysba.org/Content/NavigationMenu62/MarriageEquality/NYMarriageEquality-QAs.pdf (last visited Oct. 12, 2011).

[6] Id.

[7] Dickerson v. Thompson (Dickerson II), 928 N.Y.S.2d 97, 100 (App. Div. 2011).

[8] Dickerson v. Thompson (Dickerson I), 897 N.Y.S.2d 298, 299 (App. Div. 2010).

[9] Id.

[10] Id.

[11] Amy Schwartz, Empire Justice Ctr., Dickerson v. Thompson: The Fight to Dissolve Civil Unions in New York, (2011), http://www.empirejustice.org/issue-areas/civil-rights/case-law/dickerson-v-thompson.html; see also, Vt. Stat. Ann. tit. 15, § 1201 (2009).

[12] Dickerson II, 928 N.Y.S.2d at 100.

[13] Dickerson I, 897 N.Y.S.2d at 299; see also, Vt. Stat. Ann. tit. 15, §§ 592, 1206 (2009).

[14] Dickerson I, 897 N.Y.S.2d at 299.

[15] Id. at 301.

[16] Id. at 300–01.

[17] Id. at 301.

[18] N.Y. Const., art. VI, § 7.

[19] Dickerson I, 897 N.Y.S.2d at 301 (citing Fry v. Vill. of Tarrytown, 680 N.E.2d 578 (N.Y. 1997)).

[20] Id.

[21] Id.

[22] Id. at 301–02.

[23] Dickerson II, 928 N.Y.S.2d 97 at 98.

[24] Id. at 99.

[25] Id.

[26] Id. at 98, 103.

[27] Id. at 99.

[28] Id. at 99 (citing Kaminsky v. Kahn, 259 N.Y.S.2d 716 (App. Div. 1965); N.Y. v. Barone, 546 N.E.2d 398, 400 (N.Y. 1989)).

[29] Dickerson II, 928 N.Y.S.2d at 99; see also, Phillips v. W.Rockaway Land Co., 124 N.E. 87, 90 (N.Y. 1919).

[30] Dickerson II, 928 N.Y.S.2d at 99 (quoting AT&T Info. Sys. v. Donohue, 496 N.Y.S.2d 565, 570 (App. Div 1985)).

[31]  Id. at 100.

[32] Id.

[33] Id.

[34] Id.

[35] Id. at 100–01.

[36] Dickerson II, 928 N.Y.S.2d at 100-01.

[37] Schwartz, supra note 11.

[38] Id.

[39] See N.Y State Bar Ass’n, supra notes 5–6, and accompanying text.

[40] See, e.g., Schwartz, supra note 11.

2 thoughts on “Dissolution of Out-of-State Civil Unions in New York: Dickerson v. Thompson”

  1. I’m not sure if someone will respond to this. All of this stuff is very confusing to me so I’m hopeful that someone can shed some light on this. Here’s the deal: I was in a long term domestic partnership in Albany County where I lived witb my then partner for 15 years. We seperated four years ago and have lived in Ithaca for a few years…and my next move will be to NYC soon. If I decide to marry a new person, will my domestic partnership automatically desolve? Do I have to fill out any forms. What about if a new partner and I want to do tbe dokestic partnership? I don’t want to do anything that would jeopardize the legality of a new marriage or partnership. Problem is that I can’t get to Albany in person any time soon. Does anyone have any insight into this? I’d greatly appreciate any feedback. Thanks!

  2. Just to clarify my previous post, I moved to Ithaca over three years ago after already living separately for a year and she has remained in Albany..if that matters! Thanks again to anyone who responds.

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