Schacht v. Schacht

• Decision Date: 18 June 1969
• Citation: 32 A.D.2d 201,301 N.Y.S.2d 151
• Parties: Joseph SCHACHT, Respondent, v. Hedi SCHACHT, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 151

301 N.Y.S.2d 151

32 A.D.2d 201

Joseph SCHACHT, Respondent, v. Hedi SCHACHT, Appellant.

Supreme Court, Appellate Division, Second Department.

June 18, 1969.

Irwin Gray, Monsey, for appellant.

Morris Fierson, New York City, for respondent.

Before RABIN, Acting P.J., and BENJAMIN, MUNDER, MARTUSCELLO and KLEINFELD, JJ.

BENJAMIN, Justice.

In January, 1966, the defendant wife obtained a decree of separation against the plaintiff husband. In April, 1966, the Legislature enacted the Divorce Reform Law (L. 1966, ch. 254). Included in that chapter was a new section 170 of the Domestic Relations Law. Subdivision (5) of that section authorizes either spouse to obtain a divorce where the parties have lived apart, pursuant to a decree of separation, for two years after the granting of the decree. In August, 1968, the husband brought the instant action for divorce pursuant to said subdivision (5) of section 170. After a trial, Special Term granted a divorce to the husband; and the wife has appealed.

The issues now before us are (a) whether subdivision (5) of section 170 is retroactive and applies to a living-apart pursuant to a separation decree obtained before the enactment of the section; (b) whether the so-called 'guilty' party in the prior separation action may sue for divorce under this statute where the separation decree was obtained before the statute's enactment; and (c) whether the statute is constitutional if construed as retroactive and available to the 'guilty' party.

In our opinion subdivision (5) of section 170 was intended to be and is retroactive. A literal, unstrained reading of that subdivision so indicates. And that conclusion is supported by the following facts: (1) When the Divorce Reform Law was enacted, one of its sections (Domestic Relations Law, § 210) provided: 'No action for divorce * * * may be maintained on a ground which arose more than five years before the date of the commencement of that action for divorce * * *'; but it expressly exempted subdivision (5) of section 170 from this five-year Statute of Limitations, even though the effective date of this limitation statute was fixed at September 1, 1967 (L. 1966, ch. 254 § 15). (2) As enacted in 1966, section 170 contained four 'fault' grounds and two 'non-fault' grounds, the latter being subdivision (5) (living apart pursuant to a separation decree) and subdivision (6) (living apart pursuant to a separation agreement). In 1968 a bill was introduced that would have made subdivisions (5) and (6) expressly non-retroactive. The Legislature deleted the provision which would thus have amended subdivision (5) and then enacted the remaining provision making subdivision (6) expressly non-retroactive (L.1968, ch. 700, § 2). At the same time, it provided that these amendments to section 170 were to be effective immediately (L. 1968, ch. 700, § 3). As the effective date of the 1968 amendment was June 16, 1968, the statute as amended clearly permitted the two-year period of living apart, pursuant to a separation decree, to start prior to September 1, 1966 (which the 1966 statute had fixed as the earliest starting date of the livingapart period), and, of course, prior to September 1, 1967, which was the original effective date of the statute. The Legislative Memorandum on these 1968 amendments (by the Joint Legislative Committee on Marital and Family Laws) flatly stated: 'The bill as it now stands, demonstrates a legislative intent to construe that provision (i.e., subd. (5)) as retroactive' (see Kaplan v. Kaplan, 31 A.D.2d 247, 250, 297 N.Y.S.2d 881, 884; Adelman v. Adelman, 58 Misc.2d 803, 804, 296 N.Y.S.2d 999, 1002; LeClaire v. LeClaire, 58 Misc.2d 41, 294 N.Y.S.2d 334). And the Governor's counsel similarly advised the Governor, before he signed the 1968 amendment, as to the legislative intent concerning retroactivity of subdivision (5) (see Foster and Freed, The Conversion Ground for Divorce In New York, N.Y.L.J., Apr. 30, 1969, May 1, 1969 and May 2, 1969).

With respect to the Legislative Memorandum on the 1968 amendments, we are not impressed by the argument (advanced in Abelson v. Abelson, 59 Misc.2d 172, 298 N.Y.S.2d 381 and Zientara v. Zientara, 59 Misc.2d 344, 299 N.Y.S.2d 253) that the intent of the 1968 Legislature is irrelevant and that we should be concerned only with the intent of the 1966 Legislature. When the 1968 Legislature amended subdivisions (5) and (6) (subd. 6 in substance and subd. 5 in several minor respects), and when it made the amendments to section 170 effective immediately, it in effect reenacted those subdivisions; and by deliberately refusing to make subdivision (5) non-retroactive, while so revising subdivision (6), and by making the amendments to these subdivisions effective immediately, it clearly evinced Its intent that subdivision (5), as re-enacted in 1968, be construed as retroactive (see Kaplan, Adelman, LeClaire, supra). Such clear expression of the legislative intent compels a holding by us that subdivision (5) is retroactive and applicable to a living-apart pursuant to a separation decree obtained prior to the enactment of the Divorce Reform Law.

We also believe that the 'guilty' party in the prior separation action has the right to sue for a divorce pursuant to subdivision (5) of section 170. The statute expressly gives either spouse the right to bring such suit. Nowhere does it distinguish between the 'guilty' spouse and the 'innocent' spouse in that regard. Obviously, this is because subdivision (5), like subdivision (6), is a non-fault provision for divorce on the ground that the demise of the parties' marriage has been established by two years of living, apart; the separation decree is not the ground for the divorce, but merely conclusive evidence of the Bona fides of their separation.

Parenthetically, we might also note that the term 'guilty party' is frequently...