Kaplan v. Kaplan

• Decision Date: 20 January 1969
• Citation: 297 N.Y.S.2d 881,31 A.D.2d 247
• Parties: Sol KAPLAN, Respondent, v. Eleanor KAPLAN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 881

297 N.Y.S.2d 881

31 A.D.2d 247

Sol KAPLAN, Respondent, v. Eleanor KAPLAN, Appellant.

Supreme Court, Appellate Division, Second Department.

Jan. 20, 1969.

Ira Sacks, New York City, for appellant.

Joseph L. Forscher, New York City, for respondent.

Before CHRIST, Acting P.J., and BRENNAN, HOPKINS, BENJAMIN and MUNDER, JJ.

BRENNAN, Justice.

The question we are called upon to determine is whether section 170, subdivision (2), of the Domestic Relations Law, which became effective on September 1, 1967, is retroactive so as to permit a plaintiff to maintain an action for absolute divorce based on abandonment of the plaintiff by the defendant for a period of more than two years prior to the commencement of the action but Less than two years from September 1, 1967, the effective date of the statute.

The action was commenced by the service of a summons on January 27, 1968. In the second cause of action alleged in the complaint the plaintiff seeks a judgment of absolute divorce on the ground of the defendant's continuous abandonment of the plaintiff for a period of approximately six years preceding the institution of the action.

On April 27, 1966, chapter 254 of the Laws of 1966 (a new divorce reform law) was enacted which, Inter alia, amended the Domestic Relations Law. Subdivision (2) of section 170 thereof permits an action for a divorce on the ground of abandonment for a period of two or more years. Abandonment, as a ground for an absolute divorce, did not exist in this State prior thereto.

Section 15 of chapter 254 of the Laws of 1966 provides: 'This act shall take effect September first, nineteen hundred sixty-seven provided that the two year period specified in subdivisions five and six of section one hundred seventy of the domestic relations law as added by this act shall not be computed to include any period prior to September first, nineteen hundred sixty-six and provided further that sections ten and twelve hereof shall take effect immediately.' It will be noted that no specific reference is made therein to subdivision (2) of section 170.

The defendant contends that, in enacting section 170, the Legislature did not indicate whether subdivision (2) thereof was to be applied prospectively or retroactively and that under the general rule, unless a contrary intent is clearly expressed, a statute is to be construed as prospective, except when it is remedial or procedural in nature.

It is the general rule that amendatory statutes are to be construed as prospective only, unless there is a clear expression of the legislative purpose to justify a retroactive application (Jacobus v. Colgate, 217 N.Y. 235, 240, 111 N.E. 837, 838). It is presumed, absent any contrary indication, that the Legislature intended changes in the form of remedies to be applicable to proceedings thereafter instituted for the redress of wrongs already done (Matter of Berkovitz v. Arbib & Houlberg, 230 N.Y. 261, 270, 130 N.E. 288, 290). Where the effect of the statute is to create a right of action which did not previously exist, it is presumed that the statute was intended to have only prospective application (Longines-Wittnauer Watch Co. v. Barnes & Reinecke, 15 N.Y.2d 443, 453, 261 N.Y.S.2d 8, 15, 209 N.E.2d 68, 73). The 'duty of the courts, however, is to construe, not to enact, the laws, and notwithstanding these general objections to retroactive legislation, the question of whether a given statute is prospective or retroactive, is, like other questions of interpretation, to be determined by ascertaining the legislative intent. Hence if it is clear that the Legislature intended an act to have a retroactive application the courts cannot change the law and refuse to give it that effect, and this is true though the act is thereby rendered unconstitutional' (McKinney's Cons.Laws of N.Y., Book 1, Statutes, § 51, pp. 71--72).

In an article, 'The Divorce Reform Law: A Brief for Retroactivity' (N.Y.L.J., July 24--26, 1967), Professor Milton G. Gershenson said that no clear indication of legislative intent appears in the wording of the statute but he concluded that there was retroactivity and stated (July 26, p. 4, col. 6):

'With reference to the four 'fault' grounds: Two of them by their nature, cry out for retroactivity. Under section 170(2), abandonment for two years or more suffices for divorce. Where there has already been such wrong, which by its nature, is continuing on, to require an additional two years of abandonment beyond September 1, 1967, smacks of injustice.'

In enacting the original divorce reform law in 1966, the Legislature provided specifically that su...