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August 8, 1974

Maria Rivera MENDEZ, Individually and on behalf of all other persons similarly situated, Plaintiff,
Hon. Louis B. HELLER, Individually and as Presiding Justice of Special Term, Part V, of the Supreme Court of the State of New York, Kings County, et al., Defendants

Per Curiam



Plaintiff's action seeks to draw in question the constitutional validity of New York Domestic Relations Law, § 230, subd. 5. Defendants are the Justice of the Supreme Court of the State of New York presiding at Special Term Part V, Kings County, the Chief Clerk of that Special Term, and the Attorney General of the State. Section 230 provides that an action for divorce may be maintained only when

"Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action"

 or where the parties were married in the state and at least one of them resided in the state for a year before the divorce action, or the parties resided in the state as husband and wife at some time and at least one party resided in the state for a year before suit, or the "cause" for the marital action occurred in the state and at least one party had resided in the state for at least a year before suit, or

"The cause occurred in the state and both parties are residents thereof at the time of the commencement of the action . . ."

 The action is framed under 42 U.S.C. § 1983 (and jurisdiction is based on 28 U.S.C. § 1343) as an action to redress a deprivation under color of state law of a right, privilege or immunity secured to plaintiff by the Federal Constitution.

 Plaintiff avers, and it is not denied, that she is and has been a resident and domiciliary of New York since April 1973, and that she intends to remain indefinitely in New York. Earlier she resided in Puerto Rico for ten years, and earlier than that, had lived in New York for ten years. She married Ernest Edgar Mendez in San Juan, Puerto Rico, on November 21, 1972, and they lived together in Puerto Rico as husband and wife until March 22, 1973. The marriage is childless. Plaintiff says that she wishes to sue her husband for divorce pursuant to Domestic Relations Law § 170, subd. 1 on the basis of her husband's cruel and inhuman treatment of her while they were living together in Puerto Rico. She and her husband were not married in New York, they have never lived together as husband and wife in New York, the cruelty and inhumanity which she asserts as a basis for her divorce action did not occur in New York and her husband is now and continues to be a resident of Puerto Rico. In consequence, if plaintiff wishes to sue for divorce in New York, as she does, she is barred from doing so by the provisions of Domestic Relations Law Sec. 230, subd. 5 until she has resided in New York for two full years preceding suit. Plaintiff avers that since March 22, 1973, she has been a full time employee of Grayarc Company in Brooklyn, that she has worked for that company continuously since the date of her first employment and that she is a registered voter in the State of New York.

 She avers further that she is without substantial funds, and can not afford either to repair to Puerto Rico to commence an action for divorce or adequately to defend herself in a Court in Puerto Rico if she is there sued by her husband for a divorce.

 The first question is whether the action presents a genuine case or controversy in which the issue put forward by the plaintiff can be resolved. The plaintiff's husband has not been joined as a defendant; it may be that he could not successfully be joined as a defendant in this Court. See Rule 4(e). The named defendants are joined on the basis that they are directly and responsibly charged with the duty of enforcing the statute, if it is valid, as they are required to presume.

 The second question, assuming that a case is presented which requires decision of the issue, is the validity of the statute: plaintiff challenges it as denying to her as a recent resident the due process extended to people who, irrelevantly to the questions involved, have resided here over two years, as interfering with her right to migrate or travel in violation of the 14th Amendment and of the Commerce Clause, and as violating the equal protection clause of the 14th Amendment in creating an irrationally delimited class with the result that plaintiff is discriminated against.


 The hearing of the motion established that the practice in marital actions, including actions for divorce, is well settled in the New York Courts. While the substantive grounds on which a divorce may be obtained are established now in Section 170 of the Domestic Relations Law and are today separated from the provision of the law limiting the circumstances in which the action for a divorce "may be maintained," for historic reasons in large part, the "jurisdictional" aspect of divorce actions has been traditionally subject to judicial scrutiny whether the actions are contested or uncontested. The complaint in an action for divorce must distinctly allege jurisdictional matter, specifically the residential and other requirements of Section 230. Marital cases are subject to separate handling in the Courts and the Clerk of the Special Term established for such marital actions examines the complaint to see whether or not the residential allegations are present in it. If they are lacking, then the Clerk rejects the pleading for filing, and in substance advises counsel that the pleading is inadequate and will not be entertained. If the plaintiff has a particular point -- such as the present constitutional point -- which in his or her judgment excuses the making of the allegedly indispensable allegation, the complaint can, upon the plaintiff's insistence, be submitted to the Judge. The Judge then examines the pleading to determine whether or not it does satisfy the requirements of both Section 170 and Section 230 by alleging matter adequate to justify maintenance of the action. It would then be the responsibility of the Judge to determine whether the residential requirement was unconstitutional or was valid and would be enforced.

 If the Clerk or the Court overlooked the point, it would again and automatically come up, even in an uncontested case, at the inquest which would follow defendant's default. At inquests a printed card is presented to counsel for his or her guidance in questioning the plaintiff and other witnesses, and among the questions contained on the printed card which must be asked, is the question concerning residence. In this setting, it is plaintiff's contention that the residence issue is directly and ...

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