Wells v. Wells
| Decision Date | 30 March 1981 |
| Citation | 437 N.Y.S.2d 622,108 Misc.2d 501 |
| Parties | Roselyn WELLS, Plaintiff, v. Manny G. WELLS, Defendant. |
| Court | New York Supreme Court |
Phillips, Nizer, Benjamin, Krim & Ballon, New York City, for plaintiff.
Solomon & Solomon, New York City, for defendant.
The question presented in this motion for a protective order is, whether a wife should be permitted to proceed with pre-trial disclosure in her matrimonial action commenced after the effective date of the Equitable Distribution Law, July 19, 1980, while there was and is pending between the parties in this very same court, a divorce action commenced by the husband prior to the effective date of the new law.
The defendant's position is, that the plaintiff herein cannot pursue such disclosure proceeding until a disposition is first had in the defendant's prior action against the plaintiff. Defendant's position is founded to a great extent upon the proposition that defendant's success in his prior pending divorce action, which is under the "old law", would result in a judgment therein which would be completely dispositive of the plaintiff's instant action.
The defendant contends that, since the financial discovery proceedings now permitted under the Equitable Distribution Law (DRL § 236(B)) are much broader in scope than is applicable under the "old law", or DRL § 236(A), additional expense would be created, and that investigation by an accountant or appraiser would be extensive, costly and time consuming. Also, there are different areas of assets involved, each of which would be required to be appraised and evaluated so that a court may deal with the "new law" provisions involving either equitable distribution or the matter of distributive share (see DRL § 236(B)(5)). The defendant further contends that the only financial issue to be determined in the "old law" case would be the matter of alimony, not a division of property in the name of one spouse.
Plaintiff, however, contends that, since plaintiff's right to maintain her separate action is undisputed, her right to proceed with that action, without undue delay, must be permitted. In short, either plaintiff's action is subject to dismissal, or else it may proceed without impedance by any stay of proceedings. Any claimed "hardship" is outweighed by the need for maintenance of a speedy and efficient system of judicial determination of all common issues in both actions.
Thus, it should be noted that the issue raised by the instant motion stems from the fact that Action No. 1 is governed by the "old law", and Action No. 2 falls within the purview of the new equitable distribution law.
There are some forty states which have a form of property distribution. The statutes are not all alike. Some states have had these laws for many years, while others, like New York, have only recently enacted an equitable distribution law. The court and counsel have sought guidelines by researching the laws of a number of these states, in particular, the adjacent states of New Jersey, Connecticut, Massachusetts and Pennsylvania. It is noted that defendant's counsel, in a very thorough and well presented brief, notes an additional random research of six other states, to-wit: Arizona, Iowa, Missouri, Colorado, Indiana and Illinois. However, neither the court nor counsel have been able to locate any cases directly in point as to the specific issue before this court in this matter. New Jersey statute is very brief and silent on the matter of retroactive application. It is noted that in 1971 when the statute took effect the courts unanimously declared that it applied to all underlying actions which had not, as yet, resulted in a judgment. It was also the holding in the states of Massachusetts and Connecticut, where equitable distribution has been the law for many years.
There are no cases precisely on point; however, there are recent decisions involving the treatment of the "old law" and the "new law" in the area of consolidated or joint trials, though that is not the issue herein, it nevertheless does have relevance. (see Bofinger v. Bofinger, Misc., 435 N.Y.S.2d 652; Lowe v. Lowe, Altimari, J., N.Y.L.J. 1/22/81, p. 15, col. 2; Detrano v. Detrano, Lonschein, J., N.Y.L.J. 1/13/81) These holdings implicitly recognize the right of the spouse, who has started a later divorce action under the "new law", to proceed with the prosecution of her action without the necessity of first defeating the other spouse's earlier suit for divorce under the "old law".
This court concurs with the reasonings by the courts in these matters, for to do otherwise would result in a race to judgment and the granting of an unfair advantage as to one spouse as against the other,...
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