Thaler v. Thaler

Citation89 Misc.2d 315,391 N.Y.S.2d 331
PartiesBonnie Seaman THALER, Plaintiff, v. Mark THALER, Defendant.
Decision Date19 January 1977
CourtUnited States State Supreme Court (New York)

Peirez, Ackerman & Levine, Great Neck, for plaintiff.

Stanley Blacker, New York City, for defendant.

Louis J. Lefkowitz, Atty. Gen., New York City, for intervenor.


Like habits, old attitudes die hard. In few parts of society's spectrum is this as evident as it is in the relationship between the sexes. While constitutional commands may force changes in overt conduct, they do not readily alter the ingrained feelings born of a lifetime's experience. Too, there is a subtle conceptual reciprocation at work, since many constitutional decisions bear the indeterminate weight of the personal attitudes of their deciders.

In recent years, the drift of the law in courts and legislatures has been to eliminate or minimize sexual discrimination absent some rational justification or compelling state interest. Under this momentum, women have attained employment, educational, and social participatory opportunities long denied them. These changes have not come from recent federal constitutional amendment--indeed they are bottomed on a constitutional amendment enacted more than a century ago, after the American Civil War, in the form of the Fourteenth Amendment, which speaks of entitlement to 'equal protection' under the laws, and on the 'due process' clause of the Fifth Amendment, which applies equal protection standards to the federal government. Plainly, their impetus for change has come from revised social perceptions and aroused womanhood. The movement to raise the consciousness of women to an appreciation of their true rights and their potential as functioning individuals has been distinctive and is comprehensive. Interestingly, part of the thrust of its intellectual van has been the assertion that the liberation of women implicitly carries with it the liberation of men. The apparent theory is that feminine emancipation eases the pressures on men to fulfill idealized and artificially imposed roles of masculine capability and expectation.

It would appear that prohibitions against sexual discriminati mean what they say. You may not lawfully discriminate against women, but by the same token, you may not discriminate against men either. The edge of sex discrimination has two sides. And, there is more to it than that. Philosophically, a benevolent grant to women of legal rights unreasonably denied to men may help the women immediately affected but the implicit condescension and maintenance of a protective stance in the end produces the attitude that somehow women are not equal to men. The plain language of the streets is that in the long run 'women will not have it both ways.'

This brings us to the blatantly discriminatory and condescending New York alimony statute which allows women to collect alimony from men, but absolutely forbids men from collecting alimony from women.

The presumable justification for this state of affairs is that in the great bulk of divorces it is the woman who is economically disadvantaged, and often she has a continuing burden of child care. That factual assumption is doubtless true, but does not lead to a permissible conclusion of absolute male denial in cases where the husband is the economically deprived party, and he has the children or there are no children. Given the legal inhibition against sexual discrimination, the fact that statistically a wife is much more likely to be an alimony recipient cannot reasonably mean that a husband as a matter of law should be excluded altogether from alimony access. As in alimony provision generally, even for wives, each case and each award should stand on its own facts.

The case in point brings the issue to us rather dramatically, since the husband is an alien here without resources who by law cannot work.

Let us examine first the statutes, then the facts, and then analyze the matter in light of the principles and the authorities.

I. The Statutes--Alimony and Counsel Fees

New York's Domestic Relations Law excludes women from familial responsibilities it expects men to fulfill. A husband may be directed to support his wife 'suitably' even after a divorce or annulment depending upon the needs and resources of the parties. But, a wife is never expected to so support her husband 'suitably' no matter what their relative needs and resources might be.

Domestic Relations Law § 236, captioned 'Alimony, temporary and permanent,' reads, in pertinent part:

'In any action or proceeding brought (1) during the lifetime of both parties to the marriage to annul a marriage or declare the nullity of a void marriage, or (2) for a separation, or (3) for a divorce, the court may direct The husband to provide suitably for the support of The wife as, in the court's discretion, justice requires, having regard to the length of time of the marriage, the ability of the wife to be self supporting, the circumstances of the case and of the respective parties. . . .' (emphasis added).

In order to collect alimony, a spouse is customarily obligated to hire a lawyer. Accordingly, the statute provides for the award of counsel fees:

' § 237. Counsel fees and expenses

(a) In any action or proceeding brought (1) to annul a marriage or to declare the nullity of a void marriage, or (2) for a separation, or (3) for a divorce, or (4) to declare the validity or nullity of a judgment of divorce rendered against the wife who was the defendant in any action outside the State of New York and did not appear therein where the wife asserts the nullity of such foreign judgment, or (5) by a wife to enjoin the prosecution in any other jurisdiction of an action for a divorce, or (6) upon any application to annul or modify an order for counsel fees and expenses made pursuant to this subdivision provided, the court may direct The husband . . ., to pay such sum or sums of money to enable The wife to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties. . . .' (emphasis added). 'Counsel fees are awarded to attorneys in matrimonial actions to insure that both parties have legal representation, and particularly an indigent (spouse).' Alwardt v. Alwardt, 41 A.D.2d 592, 340 N.Y.S.2d 209 (1973).

In some sense, counsel fees are just a specialized form of support. See, e.g. Shenker v. Shenker, 14 Misc.2d 980, 178 N.Y.S.2d 792 (1958).

II. Facts of the Case

Here, we have a husband, Mark Thaler, who cannot legally earn a living, and a citizen working wife, Bonnie Seaman Thaler, who refuses to support him.

Mark is Israeli; Bonnie is American. They were married in Israel, and came to honeymoon in America on March 13, 1976. On April 30, 1976, she commenced this action for annulment.

Our immigration laws prohibit Mark, a nonimmigrant alien, from taking a job here. 8 CFR 214.1(c). Bonnie, on the other hand, is able to work. Mark claims she is presently employed.

Mark contests his wife's annulment action. He cannot do that effectively from outside the country. He must remain here, but he cannot support himself here. He has turned to his wife for support and made this motion for temporary alimony and a counsel fee while their action is pending. Bonnie resists on the ground that under Domestic Relations Law §§ 236 and 237 alimony and counsel fees are not available to a husband, only to a wife.

III. Legal Analysis
A. Equal Protection of the Laws

The problem is one of equal protection and unequal treatment.

Both the New York State, Article I, Section 11, and the United States, Amendment XIV, Section 1, Constitutions limit the state's power to distinguish between classes of individuals. Each provides: 'No person shall be denied the equal protection of the laws of this state or any subdivision thereof.' New York; 'No state shall . . . deny to any person within its jurisdiction the equal protection of laws.' United States.

1. Rationality as a Basis for Discrimination

By traditional analysis, the state does not necessarily deny equal protection when it discriminates against one class of people, provided the discrimination bears a reasonable relationship to some legitimate state purpose. Alevy v. Downstate Med. Center, 39 N.Y.2d 326, 384 N.Y.S.2d 82, 348 N.E.2d 537 (1976). Many laws which discriminate between people based on income, intelligence, or physical disability are generally accepted. Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973). Generally, the state can treat people differently as long as its action rests on a rational base. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491. Rationality, as used here, however, does not mean that some vague, sentimental, or indirect reason or feeling for the rule exists; it means there is a rational relationship between the rule and a legitimate purpose meant to be served. Frontiero v. Richardson, supra, at 683, 93 S.Ct. 1764. If sexual distinction is the basic reason, it is irrational in terms of state purposes.

2. Suspect Classifications (And These Include Sex)

Mere rational justification is not enough, however, when a statute treats people differently according to such 'suspect' criteria as their race or national origin. Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.E. 866. There, something more than mere rationality must be established.

A statute which uses a 'suspect' standard to draw distinctions must be examined with strict judicial scrutiny. Only a Compelling state interest will support the constitutionality of a statute making a discrimination in a suspect category.

In Frontiero v. Richardson, supra, a four judge plurality of the Supreme Court concluded that gender as a differentiating...

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