Abelson v. Abelson

• Decision Date: 26 February 1969
• Citation: 298 N.Y.S.2d 381,59 Misc.2d 172
• Parties: Max M. ABELSON, Plaintiff, v. Molly C. ABELSON, Defendant.
• Court: New York Supreme Court

Page 381

298 N.Y.S.2d 381

59 Misc.2d 172

Max M. ABELSON, Plaintiff, v. Molly C. ABELSON, Defendant.

Supreme Court, Special Term, Nassau County, Part V.

Feb. 26, 1969.

Sydney J. Schwartz, New York City, for plaintiff.

Harold W. Grubart, New York City, for defendant.

MEMORANDUM

L. KINGSLEY SMITH, Justice.

In this matrimonial action two motions are presented for determination. The plaintiff's motion seeks a dismissal of five of the six affirmative defenses pleaded by the defendant on the ground that they are legally insufficient. The defendant's motion seeks an allowance of counsel fees to defend this action.

The parties are husband and wife and have lived separate and apart pursuant to a judgment of separation granted in favor of the wife by this Court on October 25, 1961.

The plaintiff-husband commenced this action for an absolute divorce on September 12, 1968 upon the ground that he and the defendant-wife have lived apart pursuant to a decree or judgment of separation for a period of two years after the granting of such decree or judgment and that the plaintiff has substantially performed all the terms and conditions of such decree or judgment (Domestic Relations Law § 170, subd. (5) as added by L.1966, Ch. 254, and amended by L.1968, Ch. 700).

The six affirmative defenses interposed by the defendant may be summarized in numerical order as follows:

(1) That the plaintiff has been living in open adultery with his paramour in all the years since the granting of the separation judgment and down to the time of the commencement of this action;

(2) That the plaintiff procured a void ex parte Mexican decree of divorce in February 1962, shortly thereafter married his paramour in Connecticut and since then has lived with her as husband and wife;

(3) That in 1963 this defendant obtained a declaratory judgment from this Court adjudging the Mexican decree of divorce to be void;

(4) That the plaintiff has not been timely in paying alimony required to be paid under the judgment of separation;

(5) That by reason of his conduct since the granting of the judgment of separation the plaintiff does not come into court with clean hands; and

(6) That Section 170, subdivision (5) (erroneously referred to in the Answer as subdivision (6)), of the Domestic Relations Law is unconstitutional if it is applied to the aforesaid separation judgment which was granted prior to the enactment of such statute.

The plaintiff's motion is directed at all the defenses with the exception of the "FOURTH" (untimely alimony payments). The decretal portions of the separation judgment contain directions (1) granting a separation in favor of the defendant; (2) pertaining to custody of two children who have since become adults; (3) providing for payment of alimony; (4) granting exclusive possession of certain real property to the defendant herein; and (5) granting exclusive possession of other real property to the plaintiff herein. It is contended by the plaintiff that since the separation judgment contained no directions which could be considered involved in the proffered defenses except the one relating to untimely alimony payments, there is no issue to try with respect to such defenses. The Court is inclined to agree with this contention of the plaintiff insofar as it relates to defenses numbered "FIRST", "SECOND", and "THIRD".

The defendant argues, however, that the judgment of separation granted in 1961 determined that the plaintiff herein was the "guilty" party and that the defendant herein was the "innocent" and successful party in that matrimonial action. The defendant further argues it was not the intention of the legislature to permit the "guilty" spouse under a separation judgment granted prior to September 1, 1967 to maintain an action for divorce based on Section 170, subdivision (5) of the Domestic Relations Law. That was the conclusion reached in Church v. Church, (58 Misc.2d 753, 296 N.Y.S.2d 716 [Sup.Ct., Westchester Co., Galloway, J.] ), where the Court held that such a result would offend the public policy of the State of New York. In Goldenberg v. Goldenberg, (N.Y.L.J., December 4, 1968, p. 17, col. 3 [Sup.Ct.Kings Co., Morrissey, J.] ), the Court reached substantially the same result.

It is this Court's view that the drastic revision of the law of divorce in general and Section 170 in particular in 1966, following years of agitation for relaxation of New York's divorce law, represented a deliberate departure from this State's previous policy and that it is the Court's duty both to recognize such change and to give it effect, at least within constitutional limits.

In the new Section 170, besides adding three new "fault" grounds to the traditional one of adultery as the basis for an action of divorce, the legislature included two "non-fault" grounds based on living apart for two years either pursuant to a judgment of separation or pursuant to a duly filed separation agreement. Some critics of the inclusion of these "non-fault" grounds have characterized this method of dissolving a marriage as "divorce by consent". A more accurate view would seem to be that the addition of the "non-fault" grounds for divorce was a recognition of certain "dead marriages" whose lifeless state has been substantiated by the fact that the spouses have lived apart for the required statutory period (1966 Report of the Joint Legislative Committee on Matrimonial and Family Laws, March 31, 1966, Legisl.Doc. (1966) No. 8, pp. 89-92); cf., Wadlington, "Divorce Without Fault Without Perjury", 52 Virginia L.Rev. 32 (1966)). Irrespective of what may be said for or against the rationale underlying such legislative recognition of "dead marriages" this Court is unable to find a basis for judicially introducing into the statute a "fault" test which the legislature did not include. Nor can this Court find any basis for adding eligibility requirements not found in the statute for plaintiff's right to maintain this action which would make the "FIRST", "SECOND" and "THIRD" defenses sufficient per se.

For the reasons indicated, the plaintiff's motion to dismiss the defenses numbered "FIRST", "SECOND", and "THIRD" is granted.

In the defense numbered "FIFTH" the defendant has invoked the maxim "He who comes into equity must come with clean hands." The plaintiff asserts that the "clean hands" doctrine has no application to this case. While it is true that at common law the courts of this State had no jurisdiction over matrimonial matters and that the power of this Court over such matters is derived soley by virtue of statutory authority (Matter of Seitz v. Drogheo, 21 N.Y.2d 181, 185, 287 N.Y.S.2d 29, 31, 234 N.E.2d 209, 211), it is equally true that matrimonial actions are handled on the equity side of the court. With respect to the manner in which matrimonials are treated, the Court of Appeals has stated:

"Matrimonial actions are neither actions at law nor suits in equity, but statutory actions modeled largely upon equity procedure. Both power and practice depend on the statute, except that where the statute is silent the practice usually follows the rule in equity." (People ex rel. Levine v. Shea, 201 N.Y. 471, 478, 94 N.E. 1060, 1063).

There can be no doubt that prior to the enactment of the so-called "Divorce Reform Law" (L.1966, Ch. 254) the doctrine of "clean hands" has been applied by the Supreme Court to deny relief in matrimonial actions. (Lodati v. Lodati, 268 App.Div. 1003, 52 N.Y.S.2d 119; Gevis v. Gevis, 141 N.Y.S.2d 121, 123; Holiber v. Holiber, 207 Misc. 716, 139 N.Y.S.2d 774). This traditional equity doctrine would not seem to have been abrogated by anything set forth in provisions of the new divorce law and it is this Court's view that a determination should not be made in advance of trial, as a matter of law, that the doctrine may not be invoked by the defendant. Whether the cumulative effect of the plaintiff's course of conduct, in all of its aspects, since the granting of the separation judgment warrants application of the doctrine of "clean hands" is a determination which should be made by the trial court. In a leading text it has been stated that this doctrine "assumes that the suitor asking the aid of a court of equity has himself been guilty of conduct in violation of the fundamental conceptions of equity jurisprudence, and therefore refuses him all recognition and relief with reference to the subject-matter or transaction in question. It says that whenever a party who, as actor, seeks to set the judicial machinery in motion and obtain some remedy, has violated conscience, or good faith, or other equitable principle in his prior conduct, then the doors of the court will be shut against him in limine; the court will refuse to interfere on his behalf, to acknowledge his right, or to award him any remedy." (2 Pomeroy's Equity Jurisprudence [Fifth Edition], Section 397, pp. 91-92). In permitting the "FIFTH" defense to stand, this Court is not to be understood as in any sense having determined at this early stage of the litigation that the plaintiff either has or has not been guilty of conduct which would disable him from obtaining the relief he seeks in a court of equity. Whether the power of a court of equity shall be exercised affirmatively in his behalf should be determined after the trial court has had the benefit of all the evidence and a full opportunity to evaluate the matter. Accordingly, the plaintiff's motion to dismiss the defense numbered "FIFTH" is denied.

There remains for consideration so much of plaintiff's motion as is directed at the "SIXTH" defense. Essentially, the question posed by the "SIXTH" defense is whether the defendant will be deprived of constitutionally protected rights. If Section 170, subdivision (5) is given a retroactive application, it is important to note that this defense proceeds upon the underlying assumption that Section 170, subdivision (5) was intended, when enacted, to operate...