Valladares v. Valladares
| Decision Date | 04 May 1981 |
| Citation | 438 N.Y.S.2d 810,80 A.D.2d 244 |
| Parties | Steven VALLADARES, Respondent, v. Anne Bernadette VALLADARES, Appellant. Virginia S. WHITE, Respondent, v. William H. WHITE, Appellant. Jeanette TUCKER, Respondent, v. Spencer TUCKER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Jacob Rabinowitz, New York City (Daniel D. Abramtsov, New York City, of counsel), for appellant Anne Bernadette Valladares.
Bronstein & Davis, Mineola (Jay J. Davis, Mineola, of counsel), for respondent Steven Valladares.
Anderson, Russell, Kill & Olick, P. C., New York City (Arthur S. Olick and Maria P. Sperando, New York City, of counsel), for appellant William H. White.
Lowenthal, Landau, Fischer & Singer, P. C., New York City (Barry H. Singer, New York City, of counsel), for respondent Virginia S. White.
Joel R. Brandes, P. C., Garden City, for appellant Spencer Tucker.
Koopersmith, Feigenbaum & Potruch, Lake Success (Kenneth Koopersmith, Alexander Potruch, Michael K. Feigenbaum, Lake Success, and Bernard E. Stamler, of counsel), for respondent Jeanette Tucker.
Before TITONE, J. P., and GIBBONS, O'CONNOR and THOMPSON, JJ.
TITONE, Justice Presiding.
These appeals, argued together, present common questions as to the retroactivity of the newly enacted part B of section 236 of the Domestic Relations Law (L.1980, ch. 281) to matrimonial actions and proceedings commenced prior to its effective date, July 19, 1980. In our opinion, the retroactive application of this new statutory scheme to marriages contracted and property acquired prior to July 19, 1980 does not offend constitutional requirements of due process and equal protection of the laws. However, as a matter of statutory construction, the new provisions are inapplicable to matrimonial actions and proceedings, as defined in part B of section 236, which were commenced prior to July 19, 1980. We also conclude that, with respect to matrimonial actions commenced prior to July 19, 1980, an application for leave to discontinue without prejudice (see CPLR 3217, subd. may not be granted where the purpose of such application is to enable the moving party to circumvent the intent of the Legislature by commencing a new action on or after that date.
At issue here is the applicability of part B of section 236 of the Domestic Relations Law, which has been termed "the most sweeping reform of the divorce laws in this State since the Divorce Reform Act of 1966" (see Governor's Memorandum, McKinney's 1980 Session Laws of N.Y., p. 1863).
Section 236 of the Domestic Relations Law, section 9 of chapter 281 of the Laws of 1980, has two parts: A and B. Part A is substantially similar to former section 236 of the Domestic Relations Law (see L.1968, ch. 699), which authorized the award of alimony in matrimonial actions. The amendment rendered those provisions explicitly gender-neutral. Part B sets forth an entirely new scheme for the equitable distribution of "all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held" (Domestic Relations Law, § 236, part B, subd. 1, par. c).
Further, the amended section 236 includes "special controlling provisions", which provide, in pertinent part:
"Except as otherwise expressly provided in this section, the provisions of part A shall be controlling with respect to any action or proceeding commenced prior to the date on which the provisions of this section as amended become effective and the provisions of part B shall be controlling with respect to any action or proceeding commenced on or after such effective date."
The effective date of the amendments was July 19, 1980 (L.1980, ch. 281, § 47).
In each of the cases before us, an action for divorce was commenced prior to July 19, 1980, and thereafter one of the parties took steps to bring the action within the ambit of part B of section 236 of the Domestic Relations Law.
In the case of Steven Valladares against Anne Bernadette Valladares, plaintiff commenced an action for divorce on or about April 2, 1980. In the complaint, the plaintiff husband accused the defendant wife of cruel and inhuman treatment. On or about April 15, 1980, defendant served a verified answer, in which she alleged adultery as an affirmative defense. In September, 1980 plaintiff amended his complaint in order to assert a cause of action for adulteries allegedly committed by defendant in June, 1980. Thereafter, defendant moved to amend her answer to assert a demand for divorce on the ground of the adultery alleged in her affirmative defense, and to assert a demand for equitable distribution of property pursuant to part B of section 236 of the Domestic Relations Law, and for experts' fees. In the order appealed from, Special Term granted defendant leave to amend her answer to assert a counterclaim for divorce, but otherwise denied her application. Special Term held that part B of section 236 did not apply to the action because it was commenced prior to July 19, 1980.
In the case of Virginia S. White against William H. White, plaintiff commenced an action for divorce in November, 1979. In her complaint she alleged causes of action for cruel and inhuman treatment and constructive abandonment. Defendant served a verified answer in December, 1979. Pretrial discovery with respect to financial matters was completed and the action was noticed for trial. On the eve of trial, plaintiff dismissed her attorney. Thereafter, in a motion returnable September 12, 1980, defendant moved to amend his answer to assert counterclaims for divorce. Plaintiff cross-moved, pursuant to CPLR 3217 (subd. for leave to discontinue the action "so that I may commence a new action whereby I can seek to avail myself of the provisions of the recent amendments to the Domestic Relations Law, effective as of July 19, 1980, relating to the equitable division of marital property." In the order appealed from, entered September 26, 1980, Special Term granted plaintiff's cross motion to discontinue the action, and denied defendant's motion to amend his answer "with leave to defendant to assert the same in the new action which shall be promptly instituted by plaintiff."
In the case of Jeanette Tucker against Spencer Tucker, plaintiff commenced an action for divorce on or about December 12, 1978, by service of a summons. Thereafter, on January 16, 1979, plaintiff served a verified complaint in which she alleged cruel and inhuman treatment and sought, inter alia, a divorce and a judgment impressing a constructive trust upon the assets obtained by defendant during the course of the marriage. On or about February 12, 1979 defendant served a verified answer, denying the essential allegations of the complaint. Although the case was noticed for trial in April, 1980, trial was adjourned in contemplation of a negotiated settlement of the litigation. During the negotiations, which ended in a stalemate, defense counsel anticipated that plaintiff "would attempt 'something' in order to try to come under the new 'Equitable Distribution' Law." To avert this possibility, defendant commenced a separate action for divorce by service of summons dated July 3, 1980. Plaintiff filed a notice of appearance in that action on or about July 23, 1980. Then, in August, 1980, plaintiff moved pursuant to CPLR 3217 (subd. for leave to discontinue her action for divorce or, in the alternative, for leave to amend her complaint to include a demand for equitable distribution of property. In her affidavit in support of the motion, plaintiff candidly acknowledged that she wanted to discontinue her action and commence a new action in order to avail herself of the new law permitting the equitable distribution of property. Defendant cross-moved to amend his answer to assert a counterclaim for divorce. Special Term granted plaintiff's motion for leave to discontinue without prejudice, and denied as moot defendant's cross motion to amend his answer.
Defendant Anne Bernadette Valladares contends that subdivisions 2 and 5 of part B of section 236 of the Domestic Relations Law authorize the application of part B to all actions pending on July 19, 1980, if all or part of the relief granted is one of the forms of relief specified in subdivision 5 (see Deschamps v. Deschamps, 103 Misc.2d 678, 682-684, 430 N.Y.S.2d 966). Subdivision 2 provides, in pertinent part:
"Except as provided in subdivision five of this part, the provisions of this part shall be applicable to actions for an annulment or dissolution of a marriage, for a divorce, for a separation, for a declaration of the nullity of a void marriage, for a declaration of the validity or nullity of a foreign judgment of divorce, for a declaration of the validity or nullity of a marriage, and to proceedings to obtain maintenance or a distribution of marital property following a foreign judgment of divorce, commenced on or after the effective date of this part " (emphasis supplied).
Subdivision 5, which authorizes the equitable distribution of marital property, limits its applicability to "an action wherein all or part of the relief granted is divorce, or the dissolution, annulment or declaration of the nullity of a marriage, and in proceedings to obtain a distribution of marital property following a foreign judgment of divorce". Thus, the caveat in subdivision 2, to wit, "as provided in subdivision five of this part," merely serves to clarify that equitable distribution of marital property is only authorized upon the termination of the marital relationship, by divorce, dissolution, annulment, or declaration of the nullity of a marriage (see Cooper v. Cooper, 103 Misc.2d 689, 691, 430 N.Y.S.2d 998).
Further, since subdivision five is not "expressly" applicable to all actions pending on July 19, 1980, including actions...
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