"[I]n all matrimonial cases, a final judgment shall be rendered determining all the respective rights of the parties including dissolution of the marriage as well as the economic issues" (Zack v. Zack, 183 AD2d 382,384 [4th Dept. 1992], citing DRL §236[B][5][a] [hereinafter "Section 236[B][5][a]")^[FN1]. Based upon the fact that she is suffering from what has been represented to the Court as a terminal illness, and wishing to be divorced before her death, plaintiff asks this Court to bifurcate the issue of grounds for divorce from the economic issues in dispute in this action and to conduct a grounds trial expeditiously, a request opposed by defendant. Although the parties have focused their respective arguments on whether the Court has the authority to enter an interlocutory judgment of divorce, under the circumstances presented to this Court, the question actually presented is, assuming that such authority exits, [*2]whether bifurcation is warranted in this case.

Plaintiff and defendant, who are 44 and 43 years old, respectively, have three children, ages eighteen, thirteen and eleven. The parties were married on June 15, 1985. Plaintiff commenced this matrimonial action on June 20, 2005. The central issues in dispute in the action relate to the distribution of their marital property, which includes substantial real property owned by them as tenants by the entireties, the proceeds of a bank account currently titled in plaintiff's name only (the Bank Account)^[FN2], and the value of defendant's business ^[FN3] and plaintiff's nursing degree and license.

On October 27, 2005 this Court conducted a preliminary conference in the action at which it addressed, inter alia, the issue of grounds for divorce. At the conference, plaintiff sought an immediate trial on grounds for divorce because of her precarious health condition.

Because the grounds issue is still in dispute, at the conference the Court scheduled a trial of grounds for divorce at 9:30 a.m. on November 17, 2005. However, in view of defendant's opposition to bifurcation of the grounds and economic issues, the Court permitted the parties to serve and file letter submissions on the question of whether bifurcation should be granted. Having received the parties' submissions, the Court concludes that bifurcation is warranted if plaintiff will consent to certain conditions governing the entry of a divorce judgment.^[FN4]

Relying upon Section 236(B)(5)(a), defendant contends that the Court may not bifurcate the grounds and financial issues, conduct a grounds trial and grant a divorce to plaintiff, since it is not authorized to enter a judgment of divorce that does not [*3]address all financial issues in dispute. In addition, he contends that he will be prejudiced by the entry of an interlocutory divorce judgment, because that judgment will adversely impact his equitable distribution rights by changing the manner in which the parties hold their substantial real property and the funds on deposit in the Bank Account. Specifically, he maintains that upon the entry of the interlocutory divorce judgment, their current tenancies by the entirety in their real property will be converted to tenancies in common, and plaintiff's share of that property, together with the funds in the Bank account, will become her separate property that will pass to her heirs or distributees by the laws of intestacy or pursuant to the terms of her Will.

Plaintiff takes the contrary position, asserting that this Court may bifurcate the issues because it has the authority to enter an interlocutory judgment of divorce in any matrimonial action. In addition, she contends that the Court could conduct the trial but merely hold the entry of the divorce judgment in abeyance, so that none of the effects feared by defendant will result until a final judgment of divorce is entered after the economic issues have been resolved by settlement or trial.

As has been recognized, "[t]he Appellate Division is a single State-wide court divided into departments for administrative convenience ..., [and] the doctrine of stare decisis requires trial courts in this department to follow precedents set by the Appellate Division of another department until the Court of Appeals or this court pronounces a contrary rule" (Mountain View Coach Lines, Inc. v. Storms, 102 AD2d 663,664 [2d Dept. 1984]). Therefore, if there is authority on the bifurcation and interlocutory judgment issues from the Second Department, this Court would be bound to follow the rule enunciated by that department of the Appellate Division.

In an effort to convince this Court that binding Second Department authority exists, plaintiff cites Lazarus v. Lazarus (240 AD2d 544 [2d Dept. 1997]), where the Appellate Division affirmed a judgment distributing the parties' marital property even though an interlocutory judgment divorcing the parties had been separately issued by the Trial Court. A review of that decision makes clear that it does not control in this case.

As set forth by the reviewing Court in Lazarus, although the Trial Court first issued an interlocutory judgment of divorce, before an appeal was taken from that judgment a trial on the economic issues was conducted and a second judgment was entered which resolved those issues. On appeal, the Second Department rejected the plaintiff's contention that the two judgments were defective because the interlocutory judgment failed to distribute [*4]the parties' property.^[FN5] Therein, the Court observed that:

"Here, the record includes a final judgment which is consistent with the prior interim judgment granting the parties a divorce. Between these two judgments, all of the properly presented legal and factual disputes between the parties have been resolved. The plaintiff has failed to demonstrate any right to a new trial based solely on the Supreme Court's bifurcation of the litigation". (Id., 240 AD2d, at 545-546 [emphasis added]).

As is evident, rather than ruling that an interlocutory judgment may always be issued in a divorce action, the Lazarus Court merely held that where all of the issues are decided and separate judgments are entered which, together, satisfy Section 236(B)(5)(a), no prejudice has been suffered by either party as a result of the bifurcation of the grounds and economic issues.

No other Second Department authority has been offered by either party, and this Court's own research has disclosed none from either that Court or the Court of Appeals. For that reason, this Court must look to any precedent from any of the other three Judicial Departments.

In this regard, the Court recognizes that there is a split of authority between the Third and Fourth Departments on the issue of whether a trial court may enter an interlocutory judgment of divorce, while the First Department has not directly addressed this question (see Powers v. Powers, NYLJ, 11/1/05, p.18 [Sup. Ct. NY 2005]). The Third Department considers an interlocutory judgment of divorce to be "nothing more than a decision stating the intention on the part of the court to divorce the parties in the future", which, "as such, is both nonbinding and nonfinal, as well as without legal effect" (Sullivan v. Sullivan, supra , 174 AD2d, at 862). That view has been rejected, however, by the Fourth Department, which has determined that a Trial Court is "not prohibit[ed] ... from entering an interlocutory judgment [of divorce]" (Zack v. Zack, supra , 183 AD2d, at 384).

Under these circumstances, "where the Court of Appeals has not spoken and there is no applicable Appellate Division decision in [this Court's] own Department, conflicting decisions in the other Departments are not binding on [this] court; and it is then free to fashion a decision which it deems to be appropriate and [*5]consistent with the overall objectives sought to be achieved by the applicable statute" (Matter of Daniel [MVAIC], 81 Misc2d 941,952 [N.Y.C. Civ. Ct. 1999]). Thus, this Court must determine whether to follow the approach taken by the Third or Fourth Department, or neither.

As explained by the Fourth Department, "when the Legislature repealed Domestic Relations Law §§241 and 242 pertaining to interlocutory judgments in matrimonial actions, it did not prohibit the court from entering an interlocutory judgment", and its failure to "specifically do[] so" supports the view that an interlocutory judgment of divorce may be entered by a Trial Court (Zack v. Zack, supra , 183 AD2d, at 384).^[FN6] Moreover, as the Zack Court observed, "[t]he goals of judicial economy will not be fostered by forcing litigants to wait until the court has heard all ancillary issues before a judgment of divorce can be appealed, especially when there are no grounds for that divorce" (ibid.). In addition, this Court recognizes that parties to a divorce action should not have to incur the substantial expense of pretrial discovery with respect to their disputed economic issues unless a divorce shall be granted to one of them at the close of the case. For those reasons, the Court agrees with plaintiff that it is authorized to enter an interlocutory judgment divorcing the parties following a ground trial (see ibid.).

That conclusion notwithstanding, this Court recognizes that in certain instances bifurcation of the issues can come at a cost to one of parties. Thus, although not cited by either party, in Costin v. Costin (225 AD2d 575,576 [2d Dept. 1996]), the Second Department noted that "[b]ifurcation of matrimonial actions is generally disfavored because it raises the possibilities of economic coercion, two protracted proceedings, or delay in resolving the financial issues". Consequently, in Costin, the Second Department held that "[a]bsent concrete reasons for bifurcation, such a motion should be denied" (ibid.).^[FN7] Hence, the actual issue to be determined is whether bifurcation is appropriate in this case. [*6]

If, as represented by her counsel, plaintiff is near death, the entry of a judgment of divorce has the potential of changing the manner in which the parties' most significant assets are held, since it is settled law that "[u]pon termination of a tenancy by the entirety through divorce, the parties become tenants in common" (Kahn v. Kahn, 43 NY2d 203,207 [1977]). In this case, if a grounds trial results in an interlocutory judgment of divorce, plaintiff's share of the real property, and the entire sum held in the Bank Account, will pass to her estate, to be distributed either pursuant to the terms of any Will created by her or by the laws of intestacy. Such a situation would serve to potentially deny plaintiff at least part of his equitable distribution share of those assets, since as a former spouse he could not even look to his one-third elective share in plaintiff's estate (see EPTL 5-1.1).

Of course, given the fragility of life, it could be argued in every divorce case that the grounds issue should not be tried before the economic issues, because the death of a party following entry of an interlocutory divorce judgment would convert assets held by the entireties into property held in common. The general fear of death of a party, however, is not what is involved at bar. Here, there is a founded claim that plaintiff will pass away in the near future, well before the economic issues are resolved and a final judgment is entered which fully satisfies Section 236(B)(5)(a).^[FN8]

Under the circumstances involved in this case, the Court agrees with defendant that he has a valid concern as to the possible loss of his equitable share of the marital property in the event that a grounds trial is conducted, and an interlocutory judgment of divorce is entered, prior to plaintiff's death. Thus, absent some other means of addressing the possible loss of his interest in the parties' real property and the monies on deposit [*7]in the Bank Account, the Court concludes that it would not be appropriate to bifurcate the grounds and economic issues in this action (see Costin v. Costin, supra , 225 AD2d, at 576).

Seeking to ensure that a grounds trial is quickly conducted, plaintiff suggests a procedure whereby the Court may grant a divorce at the conclusion of that trial but withhold entry of a judgment. Defendant opposes that procedure, fearing that at a later date a request would be made for entry of judgment, notwithstanding plaintiff's current proposal.

"[T]he entry of [a] judgment [of divorce] is [a] ministerial act" (Cornell v. Cornell, 7 NY2d 164,168 [1959]). Consequently, if a grounds trial is conducted and it is determined that plaintiff is entitled to a judgment of divorce, the Court could be compelled to sign and enter a judgment that conforms to its determination by way of a CPLR Article 78 proceeding in the nature of mandamus (see Matter of Vicinanzo v. Best, 249 AD2d 739,740 [3d Dept. 1998] [Recognizing that a court can be compelled to enter an order]; see also Miller v. Lanzisera, 273 AD2d 866,867 [4th Dept. 2000], appeal dismissed 95 NY2d 887 [2000], reconsideration denied 96 NY2d 731 [2001]["[T]he appropriate procedural vehicle to address [] a failure [to timely decide motions] would have been a CPLR article 78 proceeding to compel the court to render a decision on the motions"]). For that reason, defendant also has a valid concern as to a procedure under which this Court signs an interlocutory judgment of divorce but holds its entry in abeyance.

Of course, as has been recognized, "unless public policy is affronted, parties to a civil dispute are free to chart their own litigation course" (Mitchell v. New York Hospital, 61 NY2d 208,214 [1984]; see Lynch v. Lynch, 178 Misc2d 1066,1068 [Sup. Ct. Rockland Co. 1998] [Divorce judgment could not be entered following death of party where parties had stipulated that the judgment would not be entered until a condition precedent had been satisfied, and that condition was not met prior to party's death]). Therefore, if plaintiff is willing to consent to a procedure by which the judgment of divorce will not be entered under any circumstances unless and until all of the issues in this action have been resolved by trial or settlement, defendant will be protected against the loss of any equitable distribution rights even if bifurcation is granted, thereby removing any reasonable opposition to bifurcation of the grounds and economic issues and the holding of an expedited trial of the grounds for divorce.

Here, plaintiff's proposal approaches the level necessary to provide that protection to defendant, in that she offers to sign a stipulation pursuant to which, inter alia, "neither [party] would request that the judgment be entered by the clerk until all [*8]economic, custody and related issues were resolved" (Cahn Letter, 10/27/05, p.2).^[FN9] What is missing, however, in view of the concern that plaintiff is near death, is any language making her agreement binding upon her estate and any party who may stand to inherit from her, which is necessary because it is established that a representative of an estate can move a court for entry of a divorce judgment "nunc pro tunc ... after the death of one of the parties, if such party was entitled to have had judgment entered while both parties were living" (Jayson v. Jayson, 54 AD2d 687,688 [2d Dept. 1976]). Inclusion of that necessary language, of course, may be readily addressed.^[FN10]

WHEREFORE, it is

ORDERED that the issue of grounds for divorce is severed from the economic issues in this case, and a trial of grounds for divorce shall be conducted on November 17, 2005 at 9:30 a.m., on condition that prior to the commencement of the grounds trial plaintiff shall agree on the record in open court that in the event that the Court determines after trial that she is entitled to a judgment of divorce: (1) neither she nor anyone acting in her behalf shall request that an interlocutory judgment of divorce be entered before all issues in this action, including all economic issues, have been fully resolved by trial or settlement; (2) neither she nor anyone acting in her behalf shall commence a CPLR Article 78 proceeding or any other legal proceeding to compel this or any other Court, or the Clerk of the Court, or the County Clerk, to enter an interlocutory judgment of divorce before all issues in this action, including all economic issues, have been fully resolved by trial or settlement; (3) that her agreement shall be binding upon her estate, any executor or [*10]administrator representing her estate, and any actual or potential heir or distributee who may stand to inherit from her estate; and (4) that pending further order of the Court neither she nor anyone acting in her behalf shall sell, transfer, encumber, dispose or otherwise dissipate any assets or property owned by her, whether held individually or jointly with others, except to meet ordinary and reasonable living expenses; and it is further

ORDERED that absent plaintiff's agreement to the terms set forth above, her application for bifurcation and an expedited trial of the issue of grounds for divorce is denied.

The foregoing shall constitute the decision and order of the Court.

Dated: White Plains, New York

November 14, 2005

HON. WILLIAM J. GIACOMO, J.S.C.

cc:Karen L. Kahn, Esq.

Novenstern & Fabriani, LLP

69 South Bedford Road

Mount Kisco, New York 10549

Susan Freedman, Esq.

399 Knollwood Road

Suite 212

White Plains, New York 10603