Childs v. Childs

• Decision Date: 11 July 1979
• Citation: 69 A.D.2d 406,419 N.Y.S.2d 533
• Parties: Lucy Gant CHILDS, Respondent, v. Theodore Q. CHILDS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 533

419 N.Y.S.2d 533

69 A.D.2d 406

Lucy Gant CHILDS, Respondent, v. Theodore Q. CHILDS, Appellant.

Supreme Court, Appellate Division, Second Department.

July 11, 1979.

John J. Von Der Lieth, New York City, for appellant and appellant pro se.

Lans, Feinberg & Cohen, New York City (Deborah E. Lans and Robert Stephan Cohen, New York City, of counsel), for respondent.

Robert Abrams, Atty. Gen., New York City (Robert J. Schack and George D. Zuckerman, New York City, of counsel), appearing pursuant to Executive Law, § 71.

Before O'CONNOR, J. P., and LAZER, GULOTTA and MANGANO, JJ.

O'CONNOR, Justice Presiding.

We are called upon by the Supreme Court of the United States to review a previous decision of this court in light of Orr v. Orr, 440 U.S. ----, 99 S.Ct. 1102, 59 L.Ed.2d 306 (see Childs v. Childs, 60 A.D.2d 639, 400 N.Y.S.2d 356, mot. to dismiss app. granted 43 N.Y.2d 946, 403 N.Y.S.2d 895, 374 N.E.2d 1246, revd. 440 U.S. ----, 99 S.Ct. 1488, 59 L.Ed.2d 766). This in turn requires us to test the constitutionality of section 237 of the Domestic Relations Law under a post-Orr light. We hold that the statute is constitutional insofar as it authorizes the trial court to award counsel fees to either party on a gender-neutral, needs-only basis. We further hold that this construction of the Domestic Relations Law shall be prospective only to proceedings and applications pending on March 5, 1979, the date of the Orr decision.

I.

The facts, other than conflicting allegations of financial worth, are essentially not in dispute. The parties were married in 1955 and divorced in July, 1974 pursuant to a judgment of the Supreme Court, Westchester County. Four children were born during the marriage: three sons, presently 23, 12 and 10 years old, respectively; and one daughter, presently 21 years old. By stipulation, the two older children remained with the defendant father, while the two younger sons remained in the plaintiff mother's custody in the marital home in Scarsdale, New York, subject to the defendant's visitation rights. The underlying proceeding which triggered the present controversy was a contested postdivorce custody proceeding commenced by the defendant in the Supreme Court, Westchester County. It appears that in December, 1975, the plaintiff mother, without any notice to or consent of the defendant father, vacated the marital residence with the two youngest children and moved to Chapel Hill, North Carolina. Since this had the effect of frustrating the defendant's visitation rights, he immediately moved to modify the judgment of divorce so as to obtain custody of these two children. There followed a plenary hearing lasting some 20 days at which numerous witnesses, both lay and medical, testified. An application was also made by the plaintiff, during the proceeding, for counsel fees. The defendant husband, however, did not cross-apply for counsel fees. While the defendant ultimately succeeded in obtaining custody of the two youngest boys, the trial court, in an order dated December 30, 1976, nevertheless awarded the plaintiff counsel fees of $12,000 and disbursements of $1,500.

The defendant thereupon appealed to this court, arguing for the first time that section 237 of the Domestic Relations Law was unconstitutional as violative of the equal protection clause (citing, Inter alia, Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 and Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225). This court, in a decision dated December 27, 1977 (60 A.D.2d 639, 400 N.Y.S.2d 356, 357), refused to reach the constitutional question upon the ground that "(a)ppellant, having failed to request a counsel fee, lacks the requisite standing to challenge the constitutionality of the statute (see 8 N.Y. Jur. Constitutional Law, § 50)." At the same time, however, this court afforded the defendant some relief by reducing the award of counsel fees to $5,000, plus disbursements.

Aggrieved, the defendant appealed to the Court of Appeals. On February 22, 1978 that court dismissed the appeal on the ground, Inter alia, that "no substantial constitutional question is directly involved" (43 N.Y.2d 946, 947, 403 N.Y.S.2d 895, 896, 374 N.E.2d 1246, 1247). Still aggrieved, the defendant filed a petition for certiorari to the Supreme Court of the United States.

While the defendant was pursuing his appellate review channels, the plaintiff was proceeding with enforcement remedies. Upon the defendant's failure to pay the reduced award, the plaintiff moved in May, 1978, pursuant to section 244 of the Domestic Relations Law, for the entry of a judgment for $6,500 representing arrears of counsel fees plus disbursements. In opposition, the defendant sought to relitigate the propriety of the award of counsel fees previously reviewed by this court; specifically, he stated that the award was unjust because his wife had assets of $464,000 while he earned only.$19,000 per year and had a net debt of some $50,000. The defendant also requested a stay of entry of a judgment pending further appeals. The court, by an order dated July 11, 1978, granted the plaintiff's application for a judgment of $6,500 while denying the defendant's application for a stay.

Meanwhile, the defendant's appeal to the Supreme Court of the United States on the underlying order awarding counsel fees (i. e., 60 A.D.2d 639, 400 N.Y.S.2d 356, mot. to dismiss app. granted 43 N.Y.2d 946, 403 N.Y.S.2d 895, 374 N.E.2d 1246, Supra ), was slowly winding its way through channels. On March 5, 1979 the celebrated case of Orr v. Orr, 440 U.S. ----, 99 S.Ct. 1102, 59 L.Ed.2d 306) was decided, striking down an Alabama statutory scheme similar to New York's, as violative of the equal protection clause of the Constitution. On March 19, 1979 the Supreme Court of the United States granted the Childs petition for writ of certiorari, vacated the previous order of this court and "remanded (the case) to the Appellate Division of the Supreme Court of New York, Second Judicial Department, for further consideration in light of Orr v. Orr, 440 U.S. ----, 99 S.Ct. 1102, 59 L.Ed.2d 306" (Childs v. Childs, 440 U.S. ----, 99 S.Ct. 1488, 59 L.Ed.2d 766, Supra ). The State Attorney-General has been given permission to intervene (see Executive Law, § 71) and, at this time, both the appeal from the order granting a judgment of $6,500, and the remand from the Supreme Court of the United States on the constitutionality of section 237 are before this court.

II.

Analysis must commence with a statement of the law as it presently exists:

"s 237. Counsel fees and expenses

"(a) In any action or proceeding brought (1) to annul a marriage or to declare the nullity of a void marriage, or (2) for a separation, or (3) for a divorce, or (4) to declare the validity or nullity of a judgment of divorce rendered against the wife who was the defendant in any action outside the State of New York and did not appear therein where the wife asserts the nullity of such foreign judgment, or (5) by a wife to enjoin the prosecution in any other jurisdiction of an action for a divorce, or (6) upon any application to annul or modify an order for counsel fees and expenses made pursuant to this subdivision provided, The court may direct the husband, or where an action for annulment is maintained after the death of the husband may direct the person or persons maintaining the action, To pay such sum or sums of money directly to the wife's attorney to enable the wife to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties. Such direction must be made in the final judgment in such action or proceeding, or by one or more orders from time to time before final judgment, or by both such order or orders and the final judgment. Upon application of the husband or the wife or the person or persons maintaining an action for annulment after the death of the husband, upon such notice to the other party and given in such manner as the court shall direct, the court may, in or before final judgment, annul or modify any such direction. Subject to the provisions of section two hundred forty-four of the domestic relations law the authority granted by the preceding sentence shall extend to unpaid sums or installments accrued prior to the application as well as to sums or installments to become due thereafter. Any applications for counsel fees and expenses may be maintained by the attorney for the wife in his own name in the same proceeding.

"(b) Upon any application to annul or modify an order or judgment for alimony or for custody, visitation, or maintenance of a child, made as in section two hundred thirty-six or section two hundred forty provided, or upon any application by writ of habeas corpus or by petition and order to show cause concerning custody, visitation or maintenance of a child, The court may direct the husband or father to pay such sum or sums of money for the prosecution or the defense of the application or proceeding by the wife or mother as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties. With respect to any such application or proceeding, such direction may only be made in the order or judgment by which the particular application or proceeding is finally determined. Any applications for counsel fees and expenses may be maintained by the attorney for the wife in counsel's own name in the same proceeding" (emphasis supplied).

"s 238. Expenses in enforcement proceedings

"In any action or proceeding to compel the payment of any sum of money required to be paid by a judgment or order entered in an action for divorce, separation, annulment or declaration of nullity of a void marriage, or in any proceeding pursuant to section two hundred forty-three, two hundred forty-four, two hundred forty-five, or two hundred forty-six, ...