Hendel v. Hendel

• Decision Date: 09 May 1969
• Citation: 300 N.Y.S.2d 350,59 Misc.2d 770
• Parties: Edward HENDEL, Plaintiff, v. Arline HENDEL, Defendant.
• Court: New York Supreme Court

Page 350

300 N.Y.S.2d 350

59 Misc.2d 770

Edward HENDEL, Plaintiff, v. Arline HENDEL, Defendant.

Supreme Court, Trial Term, New York County, Part VI.

May 9, 1969.

Saul Mildworm, New York City, for plaintiff.

Rothenberg & Atkins, New York City (Michael B. Atkins, New York City, of counsel) for defendant.

FRANCIS J. BLOUSTEIN, Justice.

The plaintiff-husband instituted this action for a divorce on September 12, 1968, upon the ground that he and the defendant-wife have lived separate and apart, pursuant to a decree or judgment of separation, for a period of two years after the granting of such decree or judgment and that he has substantially performed all the terms and conditions of such decree or judgment (Domestic Relations Law, § 170, subd. (5)).

The parties herein were married in New York City on June 11, 1950, and have two sons, the issue of the marriage, 14 and 11 years of age.

Defendant-wife, as plaintiff, in an action in Westchester County, was awarded a judgment of separation on February 10, 1966, which was entered on February 11, 1966. On appeal, such judgment was affirmed (27 A.D.2d 800, 279 N.Y.S.2d 341 (2nd Dept.)).

The judgment in the separation action provided, among other things, that the wife (defendant herein) was to receive $125 a week for the support and maintenance of herself and for the support, education and maintenance of the children of the marriage. She was awarded custody of the two children, with the right of visitation by the father. In addition, provisions were made for the wife to have exclusive possession of the premises owned by the parties as tenants by the entirety, the husband being charged with paying the mortgage installments and the real estate taxes for such abode directly to the mortgagee and receiver of taxes and for home insurance.

On December 10, 1968, the wife's motion to modify the judgment of separation (increase in alimony and child support), based on a change of circumstances, was denied in the Supreme Court, Westchester County.

The plaintiff-husband now seeks to convert the aforesaid separation judgment, in which he was the guilty party, into a divorce decree which will dissolve the marriage contract and terminate all the property and other rights vested in the defendant-wife, present and future, stemming from the marriage. If the plaintiff is awarded a decree of divorce, defendant, who has been found by the courts, trial and appellate, to be innocent of fault, since she was awarded the judgment of separation, will have her marriage terminated, not only without her consent but obviously against her wishes and to her detriment, involving the loss to her of valuable property rights.

The defendant in this action instituted the separation action after her abandonment by her husband, plaintiff herein, in order for her to obtain support for herself and for the children of the marriage. It can also be safely assumed that when the defendant-wife instituted her action for a separation, she did not contemplate that some two years later, under the revised Domestic Relations Law, her husband would be eligible to institute the present action for divorce, as he has.

The defendant-wife in her prayer for relief requested, among other things, that a 'possessory lien' be impressed on the premises now owned by the parties as tenants by the entirety. She alleges she is without sufficient means to obtain equivalent housing accommodations elsewhere for herself and the children of the marriage.

In addition, the court is asked to determine the adequacy of the provision for support and maintenance of the wife and children of the parties, as was provided for in the separation decree.

After trial, the court finds that the plaintiff 'has substantially performed all the terms and conditions of such decree or judgment (of separation)' as required by Domestic Relations Law, section 170, subdivision (5).

The court is constrained to grant the plaintiff-husband a divorce under the circumstances herein presented. The auxiliary problem arises as to the power of the court to protect the innocent spouse from the undesirable results of the divorce as it affects her property rights and to preserve such property rights to her.

Defendant-wife, before trial, amended her answer, alleging that subdivision (5) of section 170 is unconstitutional. The court finds no merit in this contention. I do not question the constitutionality of this subdivision since the State, as sovereign, was empowered to enact the statute in such form as it presently exists. A strong presumption of constitutionality attaches to every statute.

Where a statute is susceptible of two constructions, one of which will make it constitutional and the other unconstitutional, the former must prevail. It is my conclusion that section 170, subdivision (5), is constitutional even though it applies or may be applied retroactively in favor of a guilty party in a separation action. This question has been discussed at great length and passed upon in Frischman v. Frischman, 58 Misc.2d 208, 295 N.Y.S.2d 70, as well as in the more recently decided cases of Levin v. Levin (N.Y.L.J., Feb. 5, 1969, Sup.Ct., Bronx County, Sp.Term, Part I, p. 18, col. 5) and Gleason v Gleason, 59 Misc.2d 96, 298 N.Y.S.2d 375 (Feb. 21, 1969, Sup.Ct., N.Y. County, Sp.Term, Part XII).

This court shares the views expressed in Frischman v. Frischman, supra, at page 211, 295 N.Y.S.2d at pages 72 and 73, wherein the court said, in dealing with the constitutionality of subdivision (5), that it had grave misgiving insofar as the statute makes 'this ground available to the 'guilty' spouse against whom a judgment of separation is granted prior to September 1, 1966'. The court continued and said (p. 211, 295 N.Y.S.2d p. 73), '* * * I will think hard and long before granting a divorce to an unsuccessful spouse under the aforementioned circumstances, without safeguarding, in every way consonant with my powers, the 'innocent' party's economic and inheritance rights as 'surviving spouse' * * *'.

The questions of constitutionality of the revised divorce laws, especially section 170, subdivision (5), as well as its applicability to separation decrees granted prior to the effective date of the amended statute, have been dealt with completely and adequately in cases in this and neighboring jurisdictions which are collated in Abelson v. Abelson, 59 Misc.2d 172, 298 N.Y.S.2d 381 (Supreme Ct., Nassau County, Feb. 26, 1968) and Zientara v. Zientara, 59 Misc.2d 344, 299 N.Y.S.2d 253 (Supreme Ct., Nassau County, Mar. 26, 1969), as well as in three articles entitled 'The Conversion Ground for Divorce in New York' by Foster and Freed, appearing in the New York Law Journal on April 30, May 1 and May 2, 1969.

Since the question of retroactivity was not directly raised on the trial of this action, the court will not deal with the matter because its expressions would amount to dicta. Nor will such discussion contribute toward a constructive determination of the principal issues before the court. I am of the opinion that section 170, subdivision (5), has retroactive effect and will so consider it in the disposition of this case.

In the many cases where the question of retroactivity of this statute has been raised and passed upon, the rights of an innocent spouse against whom a divorce judgment was sought have been disregarded and, except for taking notice of such inequity, have not been passed upon.

Prior to the enactment of the newly amended divorce law (L.1966, ch. 254), misconduct of the most serious nature (adultery) had to be proven before a divorce would be granted dissolving a marriage. This court is of the opinion that the legislature, in enacting section 170, by adding several 'non-fault' grounds as the basis for an action of divorce, never intended to deprive a wife of her valuable property rights, if she was not the 'guilty' party to a divorce action. These grounds added to the traditional ground of adultery, which from 1787, when the first divorce laws in this State were passed, defined adultery as the only ground for divorce, showed a recognition that certain 'dead marriages' ought not to continue to exist and should be dissolved. In fact, prior to the revision, the wife had an option to bring an action for separation and not divorce in order to protect her economic rights and remain 'the wife' in an otherwise 'dead marriage'.

In view of the legislative pronouncement made by the enactment of section 170, subdivision (5), it now seems clear that the policy of this State is not to compel parties to continue a marital status which is ostensible rather than real. It would be both unrealistic and impracticable to insist that a dead marriage continue and that the parties remain husband and wife. However, it is nevertheless unclear that the legislature intended to permit the wrongdoer to free himself from the bonds of matrimony without securing to the innocent spouse some of the economic benefits which accrued during the matrimonial status.

Such property rights and economic benefits may be generally identified as title to real estate owned by the parties, as tenants by the entirety, which upon a divorce is converted to a tenancy in common; rights under the Estates, Powers and Trusts Law; property held jointly with right of survivorship, such as bank accounts, stock holdings, bonds, securities; Social Security benefits; hospital and medical insurance benefits; union retirement funds, etc.

There was submitted to the legislature this year several proposed amendments which would have added a new section (§ 178) to the Domestic Relations Law. The 1968 legislature had similar proposals before it. The purpose of the proposed legislation was to protect and preserve the property rights of an innocent spouse against whom a judgment of divorce is sought, she having been the successful party to a prior separation action. It would be helpful to review the proposed legislation...