Tucker v. Tucker
| Decision Date | 06 April 1982 |
| Citation | 434 N.E.2d 1050,55 N.Y.2d 378,449 N.Y.S.2d 683 |
| Parties | , 434 N.E.2d 1050 Jeanette TUCKER, Appellant-Respondent, v. Spencer TUCKER, Respondent-Appellant. |
| Court | New York Court of Appeals Court of Appeals |
A plaintiff who has commenced a matrimonial action prior to the effective date of the "Equitable Distribution Law" may not discontinue that action for the purpose of instituting a second action after that date in order to obtain benefits under the broader provisions relating to distribution of marital property applicable in actions commenced after the statute became effective.
On December 12, 1978 plaintiff wife commenced the present action for divorce; after the pleadings had been served, in April, 1980 the case was assigned a trial date which was later adjourned. On July 3, 1980, approximately two weeks before the effective date of the amendment to section 236 of the Domestic Relations Law incorporating what has come to be known as the "Equitable Distribution Law," 1 the husband began a separate action for divorce. On August 5, 1980, after the effective date of the statute, the wife moved to discontinue her action for the announced purpose of instituting a second divorce action in which, because of its having been commenced after July 19, 1980, she might obtain the benefits of the expanded property distribution provisions contained in part B of section 236. In the alternative she requested leave to amend her complaint in the pending action to include in the relief sought equitable distribution of the marital property of the parties in accordance with the provisions of part B. The husband opposed his wife's application and also moved for leave to amend his answer to set up counterclaims for divorce.
Supreme Court granted the wife's motion to discontinue her pending action with the statement that "In the interest of public policy the Court will not direct that an action for divorce be continued against the wishes of the plaintiff", and denied the husband's cross motion. The Appellate Division unanimously reversed on the law and denied the wife's motion in its entirety; the husband's cross motion to amend his answer was granted "upon condition that he stipulates that plaintiff's rights will not be affected if she is found guilty of misconduct, and upon any other conditions which Special Term deems just" with a reference to CPLR 3025 (subd. The case is before us on cross appeals. The wife contends that the Appellate Division erred in holding, as a matter of law, that Supreme Court could not exercise its discretion to grant her application to discontinue the action she began before the Equitable Distribution Law became effective; the husband challenges the lower court's authority to condition amendment of his answer on the stipulation described above.
We consider first the Appellate Division's ruling with respect to the wife's motion.
While the authority of a court to grant or to deny an application made to it pursuant to CPLR 3217 (subd. by a party seeking voluntarily to discontinue litigation is within its sound discretion, ordinarily a party cannot be compelled to litigate and, absent special circumstances, discontinuance should be granted (4 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3217.06). Particular prejudice to the defendant or other improper consequences flowing from discontinuance may however make denial of discontinuance permissible or, as the Appellate Division correctly held in this case, obligatory.
There is no question as to the purpose for which this plaintiff sought to abandon her action instituted in December, 1978; with commendable candor she stated in her supporting affidavit that she sought discontinuance of her pending action in order that she might commence a new action, also seeking dissolution of her marriage, in which, by virtue of the action's having been commenced after the effective date of the Equitable Distribution Law, she could assert a demand for the more liberal property distribution provided by part B of section 236 of the Domestic Relations Law. Otherwise stated, she sought to avoid restriction to the economic powers conferred by part A of the statute on the court which would hear her pre-July, 1980 divorce action and, by jettisoning her pending action and resurrecting its predicate in a second action, thereby to evade the legislative mandate that the rights and obligations of the parties in actions commenced prior to the effective date of the statutory amendment shall be determined in accordance with the provisions of part A. Prevention of such intentional frustration of the considered decision by the Legislature as to which actions are to be governed by the two, quite different, constituent parts of the statute (cf. Valladares v. Valladares, 55 N.Y.2d 388, 449 N.Y.S.2d 687, 434 N.E.2d 1054, decided herewith) is an objective which mandates denial as a matter of law of the discontinuance requested in the present case. 2 The Legislature fixed a categorical line of demarcation; in actions commenced prior to July 19, 1980 the substantive provisions of part A of new section 236 will apply; in actions commenced on or after that date the substantive provisions of part B apply. And in assigning individual cases to the one category or the other the phrase "an action commenced" refers to the commonly understood initial institution of the action whereby the court first obtains jurisdiction of both husband and wife.
Further pragmatic justification for the categorical distinction drawn by the Legislature and implemented by the Appellate Division and now confirmed by this court in the present case lies in the fact that it will preclude variegated treatment of plaintiffs who, having commenced matrimonial actions before July 19, 1980, thereafter seek to discontinue and then to recommence and might otherwise receive disparate treatment at the hands of Judges who exercise even a reasonable discretion in ruling on their applications. In view of the clear intent expressed in the statute as to the applicability of parts A and B, there is no room for the exercise of judicial discretion to vary what has been prescribed by the Legislature.
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