G.C. v. G.C.

• Citation: 35 Misc.3d 1211,951 N.Y.S.2d 85,2012 N.Y. Slip Op. 50653
• Decision Date: 16 April 2012
• Docket Number: No. 09/13452.,09/13452.
• Parties: G.C., Plaintiff, v. G.C., Defendant.
• Court: United States State Supreme Court (New York)

35 Misc.3d 1211

951 N.Y.S.2d 85

2012 N.Y. Slip Op. 50653

G.C., Plaintiff,

v.G.C., Defendant.

No. 09/13452.

Supreme Court, Monroe County, New York.

April 16, 2012.

James A. Valenti, Esq., Trevett Cristo Salzer & Andolina, P.C., Rochester, Attorney for Plaintiff.

Teresa M. Pare, Esq., Law Offices of Teresa M. Pare, Canandaigua, Attorney for Defendant.

RICHARD A. DOLLINGER, J.

The Court is asked whether it will permit an amendment to a divorce complaint to add new causes of action under the Domestic Relations Law if the claims arose after the filing of the complaint. SeeCPLR 3025(b).

The plaintiff brought a divorce action prior to October 10, 2010. He alleged that his wife had engaged in cruel and inhuman treatment toward him. NY DOM. REL. LAW § 170(1). The wife answered the complaint, denying the specific allegations. After the commencement, the parties lived apart. The wife moved to Ohio. During discussions over the status of the case, the wife made it clear that she would contest the grounds for the divorce.

The husband moved to amend the complaint to assert two new grounds: a ground under Section 170(2) for abandonment and a claim under Section 170(7) for an “irretrievably broken” marriage. The wife opposes the abandonment amendment, claiming that the husband can not allege abandonment when it occurred during a year after the filing of complaint and that its assertion, now, after the action has been pending for more than two years, is untimely and prejudicial. The wife opposes the amendment on the grounds of Section 170(7), arguing that this recently-enact statutory amendment can not be asserted in this action because the complaint was filed prior to the effective date of the change. She claims that the husband, in order to pursue this claim, needs to file a new complaint. The husband considers this step unnecessary, arguing that if he files the new complaint with a Section 170(7) cause of action, he could then move for consolidation under CPLR 602(a) and the cases would likely be consolidated because they involve the same facts. He argues that judicial economy and prudent use of a litigant's legal fees dictate that this Court should simply grant the amendment.

The amendments are both made pursuant to CPLR 3025(b), which provides that amendments should be freely given or a complaint may be supplemented “by setting forth additional or subsequent transactions or occurrences, at any time by leave of court.” CPLR 3025(b). An avalanche of authority directs that the leave to amend a complaint should be “freely granted” unless the proposed amendment is clearly and patently insufficient on its face. Williams v. Ludlow's Sand & Gravel Co., 122 A.D.2d 612, 504 N.Y.S.2d 901 (4th Dep't 1986). The history of CPLR 3025(b) demonstrates the wisdom of “freely granting” amendments in matrimonial matters:

In some instances a plaintiff will commence an action for separation and then seek to add a cause of action for divorce in a supplemental pleading, or vice versa. In the early cases, the courts generally did not allow the plaintiff to change the nature of the actions. Accordingly, supplemental complaints were not allowed for this purpose.

After enactment of the CPLR, it was held that when the original action was for separation, a cause of action for divorce based on adultery could be added in a supplemental pleading, if the adultery of the defendant was not discovered at the time the separation action was commenced.

Under CPLR 3025(b) an action for separation can be amended to request a judgment for an absolute divorce where both actions are based on the same grounds, and where the factual allegations are similar.

2–29 New York Civil Practice: Matrimonial Actions § 29.02, NEW YORK CIVIL PRACTICE: MATRIMONIAL ACTIONS, Matthew Bender & Company, Inc. (2011), see also Goris v. Goris, 22 A.D.3d 265, 801 N.Y.S.2d 740 (1st 2005)(permitting amendments to add causes of action after the filing of the original complaint); Smith v. Smith, 254 A.D.2d 788, 677 N.Y.S.2d 847 (4th 1998)(can amend complaint to include abandonment based on facts that arise during the pendency of the action); Taplinger v. Taplinger, 55 Misc.2d 103, 284 N.Y.S.2d 794 (Sup.Ct. New York Cty 1967)(granting amendment to add new cause of action based on the same facts alleged in the original compliant); Fitzpatrick v. Fitpatrick, 55 Misc.2d 7, 284 N.Y.S.2d 355 (Sup.Ct. Westchester Cty 1967)(interpreting Section 3025(b) to grant amendment because of the possible avoidance of two actions and ends of justice will be better served); Herzog v. Herzog, 43 Misc.2d 1062, 252 N.Y.S.2d 704 (Sup. Ct,. Monroe County 1964)(noting that revised CPLR gave courts “widest possible discretion” to amend pleadings if pleader acquired cause of action after filing original complaint).¹

CPLR 3025(b), by its express language, envisions that other causes of actions, based on developing facts that occur during the pendency of the action, can be the subject of a proposed amendment to the original compliant. The statute uses the terms “subsequent transactions or occurrences” as the basis for a proposed amendment. The statute also permits an amendment “at any time.” CPLR 3025(b). The legislative proponents of CPLR 3025(b) stated that a new cause of action may be the subject of an amended or supplemental pleading “even if the pleader had no cause of action at the time of the original pleading but subsequently acquired and stated one in a supplemental pleading.” See 1st Report, Legis. Doc. No. 69, p. 78, cited in Fitzpatrick v. Fitzpatrick, 55 Misc.2d 7, 284 N.Y.S.2d 355 (Sup.Ct. Westchester Cty, 1967). Given these instructions, it seems incontestible that the Legislature intended that claims which arose during the pendency of an action could be heard simultaneously with those that existed at the time of the filing of the original complaint.Therefore, the fact that either cause of action accrued during the pendency of the action is not a rationale to deny the application.

A cause of action under Domestic Relations Law § 170(2) requires allegations that a spouse's actual physical departure from the marital residence for one year is unjustified, voluntary, without consent of the plaintiff spouse, and with the intention of the departing spouse not to return. See Davis v. Davis, 71 A.D.3d 13, 889 N.Y.S.2d 611 (2d Dep't 2009); Kaplan v. Kaplan, 46 A.D.3d 628, 847 N.Y.S.2d 626 (2d Dep't 2007). The amended complaint, on its face, meets this minimal pleading requirement: it alleges that the wife left the marital residence in 2009, has not returned and her leaving was without justification. The pleading states the cause of action.

Under the weight of cases favoring “freely granting” amendments to complaint, the cause of action for abandonment, although it has accrued while this action has been pending, is properly pleaded and does not lack merit.

The motion to add a cause of action under Section 170(7) arrives in a different posture before this Court. In October, 2010, the Legislature added a statutory change to the Domestic Relations Law which created “no-fault divorce” and permitted one party to be granted the divorce upon a sworn declaration that the marriage was “irretrievably broken for a period in excess of six months” and the parties had agreed on all the issues related to support and equitable distribution. N.Y,. DOM. REL. LAW § 170(7).

The wife correctly notes that the statutory amendment states that the “act ... shall apply to matrimonial actions commenced after the effective date.” It is undisputed that the effective date was October 12, 2010. The clear intention of the Legislature, based on this language, was to not allow litigants to simply amend their complaints, after the amendment took effect, and allow those claims to proceed to adjudication on the basis of the new “no-fault” allegations by claiming that the six months of “irretrievable breakdown” included time before the effective date of the amendment.

However, in seeking this amendment, the husband is not seeking any relief other than that sought in the original complaint: a divorce and accompanying property distribution. By virtue of the statutory change, the husband, having waited six months after its effective date, can now meet the time requirement of six months because all of the time accrued after the amendment took effect.

When the husband moves to amend his complaint to add a cause of action under Section 170(7), he does not violate the language of the statute or the intention of the Legislature. Instead, he seeks to invoke what the Legislature extended to him: a cause of action that has ripened because more than six months have passed since the date of the amendment and during that time, the husband swears that his marriage has been irretrievably broken.

In arguing against the amendment, the wife directs the Court to the early 1980s, when equitable distribution became law and several New York courts, including the Court of Appeals, considered various procedural strategies brought by parties to avoid or apply claims under the recently-enacted equitable distribution laws. The wife cites Goding v. Goding, 106 Misc.2d 423, 431 N.Y.S.2d 797 (Supt. Ct. Nassau Cty 1980) but the Court of Appeals considered many of the same issues. See Valladares v. Valladares, 55 N.Y.2d 388, 449 N.Y.S.2d 687, 434 N.E.2d 1054(1982)(amendment to pending complaint to assert equitable distribution claim was denied but the court allowed an amendment to include a new claim for divorce); Motler v. Motler, 60 N.Y.2d 244, 469 N.Y.S.2d 586, 457 N.E.2d 691 (1983)(allowing a party to discontinue an action and file a separate action to obtain the benefits of equitable distribution). Recently, other New York courts have permitted litigants to commence separate actions after the effective date and assert a “no-fault” claim. Heinz v. Heinz, 31 Misc.3d 601, 920 N.Y.S.2d 870 (Sup.Ct. Nassau Cty 2011)(pendency of an action by one spouse does not, by...