Proceeding for Support Under Article 4 of Family Court Act, Matter of

• Decision Date: 18 February 1976
• Citation: 85 Misc.2d 637,380 N.Y.S.2d 904
• Parties: . MARCIA D., Petitioner, v. DONALD D., Respondent. Family Court, City of New York, County of New York
• Court: New York Family Court

Page 904

380 N.Y.S.2d 904

85 Misc.2d 637

In the Matter of a PROCEEDING FOR SUPPORT UNDER ARTICLE 4 OF the FAMILY COURT ACT MARCIA D., Petitioner, v. DONALD D., Respondent.

Family Court, City of New York, County of New York.

Feb. 18, 1976.

Guston & Reiss, P.C. by Arthur D. Reiss, Clifton, N.J., of counsel, for petitioner.

Brashich, Finley & Postel by Deyan Ranko Brashich, New York City, of counsel, for respondent.

DECISION AND ORDER

SHIRLEY WOHL KRAM, Judge:

Counsel for the Petitioner has made an application to this Court for counsel fees pursuant to Section 438 of the Family Court Act. An affirmation in opposition to the award of counsel fees was submitted by counsel for Respondent. He contends that Section 438 violates the Fifth and Fourteenth Amendments to the Constitution of the United States since it denies male litigants due process of law and equal protection of the law.

Section 438 of the Family Court Act provides as follows:

'In any proceeding under this article by a wife or former wife, against her husband, or former husband, including proceedings for herself and her children, or by a person on behalf of children only, . . . the court may allow counsel fees at any stage of the proceeding, to the attorney representing the wife, former wife or person on behalf of children.'

Section 438 is the successor to Section 131 of the Domestic Relations Court Act. The latter was amended in September 1956, and authorizes the Court to award counsel fees to the attorney representing the wife. Prior to that time, no statutory language existed which authorized the Family Court to award counsel fees. As stated in Ahearn v. Ahearn, 4 Misc.2d 1043, 158 N.Y.S.2d 848, '(U)ntil . . . September 1, 1956 . . . services performed by attorneys in a Family Court proceeding for the support of a wife and children could only be recovered in a common-law action on the theory of 'necessaries'.' See also Dravecka v. Richard, 267 N.Y. 180, 196 N.E. 17 and Friou v. Gentes, 11 A.D.2d 124, 204 N.Y.S.2d 836, which held that legal services rendered for a wife or child are necessaries.

Presumably, the intent of the Legislature in enacting the precursor of Section 438 of the Family Court Act was to avoid the multiplicity of proceedings which were commenced against a husband stemming from the same action. In any event, this Court fully recognizes that the husband's liability for his wife's counsel fees has its origin in the common-law and is not entirely dependent upon statute.

Under the common-law, a husband was bound to support his wife, unless there was a valid agreement for support entered into between the parties which relieved him from such obligation (Young v. Valentine, 177 N.Y. 347, 69 N.E. 643). The rationale for this obligation on the husband was, in part, due to the existing legal system at that time which gave control over a wife's property and income to the husband. This was stated in Phillips v. Phillips, 1 A.D.2d 393, 150 N.Y.S.2d 646, aff'd 2 N.Y.2d 742, 157 N.Y.S.2d 378, 138 N.E.2d 738,

'(A)t common law it was held that 'the very being or legal existence of the woman is suspended during the marriage' (citing 1 Blackstone, Commentaries on the Laws of England 442 (1758)), and that the husband, as the one in control of his wife's property and income, was obligated for her debts and for her support.'

It is with this background that the Court will consider the constitutionality of Section 438.

When testing the constitutionality of a statute, certain basic principles must be noted. In Matter of Malpica-Orsini, 36 N.Y.2d 568, 370 N.Y.S.2d 511, 331 N.E.2d 486, where the court was faced with the constitutionality of Section 111 of the Domestic Relations Law, the court stated:

'. . . a legislative enactment carries with it an exceedingly strong presumption of constitutionality; that, while this presumption is rebuttable, unconstitutionality must be demonstrated beyond a reasonable doubt; that every intendment is in favor of the statute's validity; that the party alleging unconstitutionality has a heavy burden; and that only as a last resort will courts strike down legislative enactments on the ground of unconstitutionality.'

Respondent's affirmative in support of his motion to declare Section 438 unconstitutional is based on the premise that the section 'commands dissimilar treatment for men and women who are similarly situated and thus is an arbitrary legislative choice forbidden by the equal protection clause of the Fourteenth Amendment to the Constitution of the United States.'

In determining whether the legislation under attack is in violation of the Equal Protection Clause, it is necessary for this Court to consider what justification exists for sex-based discrimination and what standard the Court should apply in determining the statute's constitutionality.

Traditionally, the Supreme Court has adhered to the rule that

'the classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.' (F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 562, 64 L.Ed. 989 (1920)).

In McGowen v. Maryland, 366 U.S. 420, 425--26, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1960), this principle was applied as the 'rational basis' test. In essence, the court was to determine whether the statute had a permissible purpose and whether the classifications drawn have a reasonable relation to such purpose.

More recently the Supreme Court has applied the 'strict scrutiny test' to equal protection cases. This test has been applied whenever a fundamental interest (e.g., Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600) is at stake or the government has employed a suspect classification. Classifications based upon race (Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010), alienage (Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534) and national origin (Oyama v. California, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249) have been held to be inherently suspect and thus subject to close judicial scrutiny. The opinion in Frontiero v. Richardson, 411 U.S. 677, 688, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), convinces this Court that sex is a suspect classification. At pages 686, 687, 93 S.Ct. at page 1770 of that opinion is stated the following:

'. . ., since sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate 'the basic concept of our system that legal burden should bear some relationship to individual responsibility.' . . . And what differentiates sex from such nonsuspect statuses as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society. As a result, statutory distinctions between the sexes often have the effect of invidiously relegating the entire...