Gleason v. Gleason

• Court: New York Court of Appeals
• Writing for the Court: FULD; BERGAN, BREITEL, JASEN and GIBSON, JJ., concur with FULD
• Citation: 308 N.Y.S.2d 347,256 N.E.2d 513,26 N.Y.2d 28
• Parties: , 256 N.E.2d 513 Jackie GLEASON, Appellant, v. Genevieve GLEASON, Respondent. Eli GOLDSTEIN, Appellant, v. Beatrice GOLDSTEIN, Respondent.
• Decision Date: 21 January 1970

Page 347

308 N.Y.S.2d 347 26 N.Y.2d 28, 256 N.E.2d 513 Jackie GLEASON, Appellant,
v.
Genevieve GLEASON, Respondent.
Eli GOLDSTEIN, Appellant,
v.
Beatrice GOLDSTEIN, Respondent. Court of Appeals of New York. Jan. 21, 1970.

Page 349

[256 N.E.2d 514] [26 N.Y.2d 29] Richard G. Green, Shirley Fingerhood and Veronika Kraft, New York City, for appellant in first-above entitled case.

[26 N.Y.2d 30] Vincent J. Malone, Angelo A. Maurino, Thomas F. Tivnan and Peter J. Kiernan, New York City, for respondent in first above-entitled case.

[26 N.Y.2d 31] Paul J. Goldberg and Lewis Becker, New York City, for appellant in second above-entitled case.

[26 N.Y.2d 32] Irving I. Erdheim, Leonard C. Shalleck, Michael F. Erdheim and Milton P. Falk, New York City, for respondent in second above-entitled case.

FULD, Chief Judge.

In 1966, the Legislature repealed this State's ancient divorce laws--which for almost 200 years had sanctioned divorce solely for adultery--and enacted the Divorce Reform Law (L.1966, ch. 254, eff. Sept. 1, 1967) authorizing divorce on other grounds (Domestic Relations Law, Consol.Laws,[256 N.E.2d 515] c. 14, § 170). In addition to four grounds based on 'fault,' new section 170 of the Domestic Relations Law specified two 'nonfault' grounds predicated on a couple's living apart for a period of two years after the granting of a separation judgment or decree (subd. (5)) or the execution of a written separation agreement [26 N.Y.2d 33] (subd. (6)). ¹ In the two cases before us, we are called upon to decide whether subdivision (5) is available where the decree was rendered prior to the enactment of the new statute and in favor of the spouse opposing the divorce.

Page 350

In the Gleason case, the plaintiff brought his action in October of 1968; he alleges that he and his wife have been living apart for more than two years, pursuant to a separation decree obtained by Mrs. Gleason in June of 1954, and that he has complied with all of its terms. The defendant moved to dismiss the complaint for failure to state a cause of action (CPLR 3211, 3212), contending that section 170 has only prospective operation and that, if applied 'retroactively', it would be unconstitutional. Supreme Court Justice Korn, sitting at Special Term in New York County, denied the motion; he decided that subdivision (5) was retroactive and rejected the defendant's argument that such an application of the statute was unconstitutional (59 Misc.2d 96, 298 N.Y.S.2d 375). ²

The Goldstein case involves the same fact pattern as Gleason v. Gleason--a pre-1966 separation decree in favor of the wife and the institution of suit by the husband based on their living [26 N.Y.2d 34] apart for more than two years. Here, too, the defendant moved to dismiss the complaint. In this instance, however, the motion was granted; Supreme Court Justice Frank, before whom the matter came, decided that subdivision (5) was not to be applied retroactively.

The appeals in both the Gleason and Goldstein cases were decided by the Appellate Division for the First Department at the same time and in one opinion (32 A.D.2d 402, 302 N.Y.S.2d 857). That court, by a 3 to 2 vote, reversed Special Term's order and dismissed the complaint in Gleason and affirmed in Goldstein. Holding that subdivision (5) did not apply to pre-existing judgments of separation, the majority wrote that 'retroactive application would confer authority upon the courts to dissolve a marriage without the consent of a non-guilty party' and that it is 'questionable whether the State may constitutionally do this' (32 A.D.2d, at pp. 407--408, 302 N.Y.S.2d at p. 863). The dissenting justices, on the other hand, concluded that the Legislature intended subdivision (5) to apply to previously granted decrees (pp. 410--414, 302 N.Y.S.2d pp. 866, 867) and, in the course of their opinion, noted that the Second[256 N.E.2d 516] Department had unanimously reached the same conclusion. (See Schacht v. Schacht, 32 A.D.2d 201, 301 N.Y.S.2d 151; see also, Kaplan v. Kaplan, 31 A.D.2d 247, 250, 297 N.Y.S.2d 881, 884.)

We agree with the dissenters in the First Department and the unanimous Appellate Division for the Second Department that the Legislature intended that subdivision (5) of section 170 of the Domestic Relations Law should be applied 'retroactively', in the sense of encompassing pre-1966 decrees, and that, as so applied, it offends against neither

Page 351

due process, the equal protection of the law nor any other constitutional provision.

Before considering the question of retroactivity and the problems of constitutionality thus posed, we deem it important to emphasize that nothing turns upon the fact that, in each of these particular cases, the divorce is being sought by the so-called 'guilty' spouse, that is, the party who was unsuccessful in the prior separation suit.

The concept of divorce on the ground--specified in subdivision (5)--that husband and wife have lived apart for two years or more pursuant to a decree of separation is self-evident. [26 N.Y.2d 35] Equally clear is the public policy which underlies that concept. If a reconciliation has not been effected within two years following a judicial separation, the Legislature has concluded, and reasonably so, that the parties are irreconcilable and the marriage dead. Since, as is apparent, the legislative design was to render this a basis for divorce, it follows that it makes no difference whether it is the 'innocent' or 'guilty' party who seeks to convert the judicial separation into a final divorce. Moreover, the deliberate failure of the legislators to provide defenses to the new grounds further evinces and confirms their intention of abandoning the traditional fault approach to divorce and permitting the termination of marriages even where both parties are at fault--except in cases of adultery (Domestic Relations Law, § 171). In a word, if there is no longer a viable marriage, the question of fault, of 'guilt' or 'innocence', is irrelevant. ³

The vital and operative fact is that the parties have actually lived apart for two years after September 1, 1966, ⁴ 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. Implicit in the statutory scheme is the legislative recognition that it is socially and morally undesirable to compel couples to a dead marriage to retain an illusory and deceptive status and that the best interests not only of the parties but of society itself will be furthered by enabling them 'to extricate themselves from a perpetual state of marital limbo.' (Adelman v. Adelman, 58 Misc.2d 803, 805,

Page 352

296 N.Y.S.2d 999, 1003; see, also. [26 N.Y.2d 36] Wadlington, Divorce Without Fault Without Perjury, 52 Va.L.Rev. 32, 81--87.)

As indicated, it is our view that subdivision (5) of section 170 is to be construed to apply to decrees rendered before 1966. In reaching this conclusion, we have not failed to consider the principle that the law generally favors the prospective interpretation of a statute. It 'takes a clear expression of the legislative purpose', this court has written, 'to justify a retroactive application' (Jacobus v. Colgate, 217 N.Y. [256 N.E.2d 517] 235, 240, 111 N.E. 837) but that purpose is here unequivocally established not only by the literal language of the statute--as the Appellate Division itself observed (32 A.D.2d, at p. 404, 302 N.Y.S.2d at p. 859)--not only by its context but by its legislative history as well. (See, e.g., Garzo v. Maid of the Mist, 303 N.Y. 516, 522, 104 N.E.2d 882, 885; Matter of Mullane v. McKenzie, 269 N.Y. 369, 373, 199 N.E. 624, 625.) ⁵

When the Divorce Reform Law was originally enacted in April of 1966, its concluding section (L.1966, ch. 254, § 15), after reciting that it was to become effective on September 1, 1967, went on to declare explicitly that the two-year period of living apart specified in subdivisions (5) and (6) 'shall not be computed to include any period prior to September first, nineteen hundred sixty-six', A year before the statute's effective date. Here was unmistakable demonstration that those subdivisions were not to be given wholly prospective application. If the Legislature had intended that the decree must be one granted subsequent to the effective date of the statute--September 1, 1967--it could not logically have prescribed[26 N.Y.2d 37] that the period of living apart might begin one year prior to that effective date. ⁶

Page 353

Obviously, if the parties may compute the period of living apart commencing a year before the operative date of section 170, then, the statute must contemplate that it could be pursuant to a decree rendered even earlier. Reasonably and sensibly read, the statute, as a whole, points the construction that all that has to be proved is that there is some kind of formal document of separation--in this case, a judicial decree--that the plaintiff has complied with its terms and that the parties have lived apart pursuant to the decree for two years after September 1, 1966. ⁷ The function[256 N.E.2d 518] of the decree, as we have already noted, is merely to authenticate the fact of separation. Consequently, the living apart ground became operable after September 1, 1968, and entitled a plaintiff to a divorce regardless of the date of the decree. Indeed, since the Legislature was intent on providing nonfault grounds for divorce and sanctioning divorce decrees where the marriage was dead--as attested by the specified two-year separation--'it would be anomalous', two knowledgeable commentators in the field [26 N.Y.2d 38] of marriage and divorce have observed, 'to permit judicial termination of...