The parties in R.P. v. L.P. had an interest in a residence in Pennsylvania, among other assets. They owned the residence with the Wife’s mother as joint tenants with rights of survivorship; the parties had a two-thirds interest in the residence, and the Wife’s mother a one-third interest. During the pendency of the New York matrimonial action, the Husband retained a lawyer in Pennsylvania and filed an action seeking a partition of the Pennsylvania property.
Before the Husband could effectuate service of the complaint in the Pennsylvania partition action, however, the Wife obtained a temporary restraining order enjoining the Husband from commencing such an action in Pennsylvania. Upon full determination of the motion, the Wife was granted an order “enjoining and restraining the Husband, pendente lite, from commencing or prosecuting, or directing anyone to commence or prosecute on his behalf, a partition action with respect to, or placing or directing another at his request to place on the market for sale, the property located in Pennsylvania, without the Wife’s consent or an order of this court”.
In granting the Wife’s application, the court first noted that the parties owned their interest in the Pennsylvania residence as tenants by the entirety, a form of ownership which, it is well-established under New York law, may not be altered prior to the issuance of a judgment of divorce (unless both parties consent). In rejecting the Husband’s argument that a partition action that seeks only to sever the parties’ joint tenancy with the Wife’s mother would not affect the Wife’s interest in the Pennsylvania residence, the court noted that “the Wife’s interest in the property includes her interest in the parties’ joint tenancy with her mother.”
In addition, the court in R.P. noted the prohibitions of the automatic orders set forth in Domestic Relations Law § 236(B)(2)(b) and 22 New York Court Rules and Regulations § 202.16-a, which preclude either party to a matrimonial action from “selling, transferring, encumbering, concealing, assigning, removing or in any way disposing of, without the consent of the other party in writing, or by order of the court [before which the matrimonial action is pending], any property pendente lite, whether individually or jointly held by the parties, except in the ordinary course of business.” The court held that the Husband’s partition action “would effectively result in one or several of the prohibited actions” and that, therefore, “it would constitute a violation of the automatic orders, for which the Husband could be subject to contempt penalties.”
The R.P. decision can be read as implicitly holding that the automatic orders themselves should preclude the very step that the Husband took in filing a partition action in Pennsylvania, since that action would result in one of the transactions prohibited by the automatic orders with respect to the Pennsylvania property. However, in granting the Wife’s application for an interim restraining order precluding the Husband from pursuing the partition action he had filed in Pennsylvania, the court acknowledged that the automatic orders do not expressly prohibit a party from taking steps that might lead to the occurrence of one of the enumerated transactions; rather, they merely prohibit the transactions themselves. Consequently, the decision in R.P. highlights a “gap” in the automatic orders, one that – in the absence of an application for injunctive relief – could permit a party to accomplish indirectly (through legal maneuvering in another court) that which the orders would prohibit him or her from accomplishing directly.
Leigh B. Kahn practices family law with the New Yorklaw firm of Mayerson Abramowitz & Kahn, LLP.