Becker v. Becker, V--A

• Decision Date: 23 November 1972
• Docket Number: V--A
• Citation: 72 Misc.2d 64,338 N.Y.S.2d 376
• Parties: Mary Anne BECKER v. August BECKER
• Court: New York Supreme Court

Page 376

338 N.Y.S.2d 376

72 Misc.2d 64

Mary Anne BECKER v. August BECKER.

Supreme Court, Special Term, Queens County, Part V--A.

Nov. 23, 1972.

[72 Misc.2d 65] Norman Annenberg, New York City, for plaintiff.

Koenigsberg, Norman & Alpert, New York City (Milton Norman, New York City, of counsel), for defendant.

MEMORANDUM

FREDERIC E. HAMMER, Justice.

This action was commenced by the wife for a divorce on the ground that the parties have lived apart pursuant to a judgment of separation (Dom.Rel.Law, § 170(5)) and further, on the ground of cruel and inhuman treatment (Dom.Rel.Law, § 170(1)). In his answer the defendant husband denies the material allegations of the complaint and requests that each of the two causes of action be dismissed for failure to state a cause of action, and that custody of the two infant issue of the parties be awarded to him.

The uncontradicted evidence establishes that the parties were married on August 9, 1958 in Flushing, New York. Thereafter, plaintiff wife commenced an action against the defendant husband for a separation in Nassau County, alleging cruelty and non-support. On July 22, 1965 Mr. Justice Meyer, Supreme Court, Nassau County, after trial, signed a judgment which dismissed the complaint in that action for failure of proof of the allegations of that complaint. That judgment did, however, contain several provisions relating to custody of the children, their support and visitation rights of the defendant husband.

Plaintiff now contends that she is entitled to a divorce pursuant to subdivision 5 of section 170 of the Domestic Relations Law, and this judgment, and its subsequent support and visitation modifications, constitute a 'decree or judgment of separation'. The defendant husband contends that the July 22, 1965 judgment of Mr. Justice Meyer is not sufficient to grant the divorce decree now sought.

If the judgment of Mr. Justice Meyer can be construed as a 'decree or judgment of separation', plaintiff has stated a cause of action. Subdivision 5 of section 170 of the Domestic Relations Law provides that an action for a divorce will lie when:

'The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.'

Is the judgment in this separation action which dismissed the complaint and provided for many of the incidents of what in the mores of our time is a separation, such as custody, support and visitation, a 'decree or judgment of separation' within the meaning of the statute? The classic statement of legislative intent is found in Gleason v. Gleason (26 N.Y.2d 28 at page 35, 308 N.Y.S.2d 347, at page 351, 256 N.E.2d 513, at page 517) in which the Court of Appeals stated that the 'no fault' ground of subdivision 5 of section 170 was enacted pursuant to a public policy that 'if a reconciliation has not been effected (within the statutory period) following a judicial separation, the Legislature has concluded, and reasonably so, that the parties are irreconcilable and the marriage dead.' The court emphasized that '(t)he vital and operative fact is that the parties have Actually lived apart * * * pursuant to a separation decree. The only condition imposed is that the plaintiff furnish 'satisfactory proof' that all the terms and conditions of that decree have been substantially performed. The real purpose of this nonfault provision was, as noted, to sanction divorce on grounds unrelated to misconduct. The decree is simply intended as evidence of the authenticity and reality of the separation.' (emphasis supplied).

The judgment at issue should be considered in light of this statement of legislative intent. In the decision of Mr. Justice Meyer (Becker v. Becker, 46 Misc.2d 858, 260 N.Y.S.2d 879), it was stated that plaintiff's complaint, which sought a separation on the grounds of cruelty and non-support, be dismissed for failure of proof. It was shown that plaintiff voluntarily removed from the marital residence and that the allegations of cruelty were based on certain physical acts which were provoked. The judgment incorporating this finding ststed that 'the complaint, insofar as it seeks a separation, is dismissed.' However, plaintiff was awarded custody of the two infant issue of the marriage with provision for their support and maintenance to be paid by the defendant to the plaintiff at Her residence. A complex set of visitation rights was set out providing that all of the visitation periods 'shall be away from the residence of plaintiff'. Defendant was directed to pay counsel fees.

This document was duly filed and entered with the County Clerk of Nassau County on July 26, 1965. Implicit and recognized throughout the judgment is that the parties were in fact living apart, consonant with plaintiff's credible, uncontradicted testimony at this trial that they have lived apart both prior to and after this judgment, and to date.

The court therefore finds that this judgment fulfills the requirement of subdivision 5 of section 170 of the Domestic Relations Law that there be proof of some kind of formal document of separation sufficient to...