Covington v. Walker

• Decision Date: 04 August 2003
• Citation: 307 A.D.2d 908,762 N.Y.S.2d 906
• Court: New York Supreme Court — Appellate Division
• Parties: RHONDA COVINGTON, Appellant,<BR>v.<BR>CARLTON WALKER, Respondent.

307 A.D.2d 908

762 N.Y.S.2d 906

RHONDA COVINGTON, Appellant,

v.CARLTON WALKER, Respondent.

Decided August 4, 2003.

Santucci, J.P., Florio and Schmidt, JJ., concur.

Ordered that the order is affirmed, without costs or disbursements.

In this action for a divorce commenced on or about April 12, 2000, the plaintiff moved for summary judgment on the ground that the defendant had been imprisoned for three or more continuous years. It is undisputed that the defendant has been continuously incarcerated from January 1984 to the present time.

We find that the Supreme Court properly dismissed the action as time-barred under the applicable statute of limitations (see Domestic Relations Law § 170 [3]; § 210). The imprisonment ground for divorce arose once the defendant had been incarcerated for three years, a date which is more than five years before the commencement of this action.

Contrary to the plaintiff's contention, the failure of the Legislature to exempt the imprisonment ground from the operation of the statute of limitations was not a matter of oversight since the statutory framework does provide such exemptions for the abandonment and adultery grounds (see Domestic Relations Law § 171 [3]; § 210 [a]). It is well settled that "[t]he failure of the Legislature to include a matter within a particular statute is an indication that its exclusion was intended (McKinney's Cons Laws of NY, Book 1, Statutes, § 74)" (Pajak v Pajak, 56 NY2d 394, 397 [1982]). Moreover, "it is a fundamental canon of statutory construction" that courts not judicially legislate an exception to an otherwise unambiguous statute, even to mitigate a potentially harsh result (Pajak v Pajak, supra at 397; see McKinney's Cons Laws of NY, Book 1, Statutes § 73).

Feuerstein, J., dissents and votes to reverse the order, reinstate the complaint, and grant the motion, with the following memorandum in which Krausman, J., concurs:

I must respectfully dissent from the majority's conclusion in this case. Specifically, I do not agree that the statutes involved are unambiguous regarding when the imprisonment ground for a divorce accrues. Domestic Relations Law § 170 (3) provides that a husband or wife may maintain an action for divorce based upon the "confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant." Domestic Relations Law § 210 provides that no action for divorce can be commenced on a ground which "arose more than five years before the date of the commencement" of the action.

The "or more" language in Domestic Relations Law § 170 could be interpreted as meaning that the...