Palermo v. Palermo
| Decision Date | 20 October 2011 |
| Docket Number | No. 2010/15824.,2010/15824. |
| Citation | 950 N.Y.S.2d 724 |
| Parties | Christine L. PALERMO, Plaintiff, v. Joseph A. PALERMO, Defendant. |
| Court | New York Supreme Court |
OPINION TEXT STARTS HERE
Jayme Hurwitz, Esq., Rochester, Attorney for Plaintiff.
Maureen Pineau, Esq., Rochester, Attorney for Defendant.
In this matter, a husband seeks to dismiss his wife's claim for a divorce based on an irretrievable breakdown of their marriage, even though he has not lived with her for almost a decade. The facts require an examination as to whether a party's sworn allegation of an irretrievable breakdown for a period in excess of six months is a sufficient basis for establishing one of the two indispensable requirements for a divorce under DRL § 170(7). 1
The couple were married in 1977. In September 2000, the wife moved out of the marital residence. In 2001, the wife commenced a divorce action against the husband on grounds of cruel and inhuman treatment and a jury returned a verdict of no cause for action. In February 2011, the wife again filed a verified complaint, this time on the grounds that the marital relationship had broken down for a period in excess of six months. The husband answered, denying the allegations, and asserting an affirmative defense that the couple had lived separate and apart for a period of at least 10 years. The husband then moved to dismiss the wife's complaint, arguing that the statute of limitations had expired on her claims, that they were barred by res judicata, and that the complaint failed to state a cause of action. The wife cross-moved to replead the claim under DRL § 170(7) to include the specific allegation that the marriage was irretrievably broken for a period of greater than six months. 2
This court needs to decide whether the verified statement of “irretrievable breakdown” of a marriage, in itself, without a trial, provides the necessary predicate to granting a divorce under the Domestic Relations Law.
Since 1966 when New York repealed its “adultery-only” divorce laws, the state has permitted divorce on the basis of fault (adultery, abandonment, cruel and inhuman treatment, and/or extended incarceration), and no-fault (living apart pursuant to either an agreement or judgment of separation). Gleason v. Gleason, 26 N.Y.2d 28, 308 N.Y.S.2d 347, 256 N.E.2d 513 (1970); DRL § 170. By enacting the no-fault provision, the legislature recognized “that it is socially and morally undesirable to compel a couple whose marriage is dead to remain subject to its bond.” Gleason at 39, 308 N.Y.S.2d 347, 256 N.E.2d 513.See also Covington v. Walker, 3 N.Y.3d 287, 290, 786 N.Y.S.2d 409, 819 N.E.2d 1025 (2004) (); Christian v. Christian, 42 N.Y.2d 63, 69, 396 N.Y.S.2d 817, 365 N.E.2d 849 (1977) (); Scully v. Haar, 67 A.D.3d 1331, 1336, 889 N.Y.S.2d 806 (4th Dep't 2009). The court in Gleason noted that the no-fault provisions in the 1966 legislation addressed:
[T]wo of the chief evils the new divorce law was designed to eliminate—collusive or fraud-ridden divorce actions in this state and the continued pursuit of out-of-state divorces based upon spurious residence and baseless claims.
The court explained that the “larger public purpose by the present legislation requires that there be a legal termination of dead marriages.” Id. at 43, 308 N.Y.S.2d 347, 256 N.E.2d 513.See also Halsey v. Halsey, 296 A.D.2d 28, 30, 746 N.Y.S.2d 25 (2nd Dep't 2002); P.B. v. L.B., 19 Misc.3d 186, 855 N.Y.S.2d 836 (Sup.Ct. Richmond Cty.2008). By judicially making the 1966 amendments apply to agreements executed prior to its effective date, the court in Gleason noted that “it has been well said that “[a] giant step has been taken in the Divorce Reform Law to bring New York into the twentieth century” and added that “the courts should not dilute its effectiveness by denying it the full scope intended for it.” Id. In Gleason, the Court of Appeals recognized that “the real purpose of the no-fault provisions was to sanction on grounds unrelated to conduct.” 3
The Gleason decision is important to the current question because it recognizes that the state legislature could fashion divorce remedies based on both parties consent to end their marriage without further testimony or evidence as to their private intentions. As the court noted in Halsey, if the parties had a “mutual contemporaneous intent” that their marriage was dead and that intention was incorporated into an agreement, then the marriage could be dissolved because both “parties wish to extricate themselves from a perpetual state of marital limbo.” Halsey at 31, 746 N.Y.S.2d 25. The only requirements under the no-fault grounds enacted in 1966 were that there be a “mutuality of intention” demonstrated separation agreement “as evidence of the authenticity and reality of the separation” and actual separation. Id.
In this case, the question is whether the state legislature provided the same relief-divorce-based on the intentions of just one of the two partners to the marriage, without any inquiry into their intent or conduct by enacting DRL § 170(7).
In 2010, the legislature took the next step and sought to bring New York's divorce laws into the 21st Century by enacting a new no-fault provision which lessened the essential proof necessary to provide the grounds for a divorce. Instead of requiring couples to wait a year after they had expressed their “mutual contemporaneous intent” that their marriage was dead (as required by subdivisions 5 and 6 of Section 170) the legislature:
(a) removed the objective waiting period of one year and the need for a writing signed by both parties; and,
(b) permitted one party to be granted the divorce immediately upon a sworn declaration that the marriage was “irretrievably broken for a period in excess of six months.” DRL § 170(7).
Read in this fashion, the legislature no longer requires evidence of the “mutual contemporaneous intention” as required by the two previous no-fault grounds. Under DRL § 170(7), one partner alone can declare the marriage is “dead” if sworn to under oath, in accordance with the statutory language.
While a strict reading of the statute suggests that the declaration alone provides the basis for a divorce, the husband in this case argues that something more is required. The husband contends that he is entitled to a trial on this provision. His argument relies on Strack v. Strack, 31 Misc.3d 258, 916 N.Y.S.2d 759 (Sup.Ct. Essex Cty.2011). Citing the Domestic Relations Law provision for a right to trial by jury, the court concluded that:
[T]he legislature failed to include anything in the Domestic Relations Law § 170(7) to suggest that the grounds contained therein are exempt from this right to trial. Had it intended to abolish the right to a trial for the grounds contained in the Domestic Relations Law, it would explicitly have done so.
Id. at 263, 916 N.Y.S.2d 759. The court concluded that the question of whether a breakdown is irretrievable is a question of fact to be determined at trial.
In view of the Strack decision, there is an apparent collision of the no-fault entitlement under DRL § 170(7), and the trial right under DRL § 173. This court must resolve the statutory contradiction. In doing so, the primary consideration is to ascertain the history and object of the enactment, in light of the facts which were found by the legislature to prompt its enactment. Malkin v. Wilkins, 22 A.D.2d 497, 257 N.Y.S.2d 288 (4th Dep't 1965).This court must also consider “the mischief sought to be remedied by the new legislation, and ... should construe the act in question so as to suppress the evil and advance the remedy.” McKinney's Statutes § 95. See also, Lincoln First Bank v. Rupert, 60 A.D.2d 193, 400 N.Y.S.2d 618 (4th Dep't 1977)(the evils the present act was intended to meet must be considered).4 The “evil” posed by the lack of a no-fault provision based on one party's sworn declaration was discussed forty years ago by the court of Appeals in Gleason : the need for the courts, in a fault-based divorce environment, to probe the inner-life of a marriage to objectively determine its viability.
The legislative history of New York's newest no-fault statute demonstrates the legislature's recognition of this “evil” and the proposed “remedy.” It is apparent that the legislature intended to provide estranged couples a simple and incontestable basis for ending their marriage, and avoid the squabbling over issues that flow from the other objective grounds in DRL § 170. The Senate sponsor's memorandum contains the following:They [couples] are forced to invent false justifications to legally dissolve their marriages. False accusations and the necessity to hold one partner at fault often result in conflict within the family. The conflict is harmful to the partners and destructive to the emotional well being of children. Prolonging the divorce process adds additional stress to an already difficult situation.
This legislation enables parties to legally end a marriage which is, in reality, already over and cannot be salvaged. Its intent is to lessen the disputes that often aries between the parties and to mitigate the potential harm to them and their children caused by the current process. Because a resolution of all the major issues must be reached before a divorce judgment is granted, this legislation safeguards the parties' rights and economic interests.
Sponsor's' Memorandum to S.3980A, enacted into law as Chapter 384 of the Laws of 2010.
In addition, the chief Senate sponsor, Senator Ruth Hassell–Thompson, noted:
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