Woicik v. Woicik

• Decision Date: 10 May 1971
• Citation: 66 Misc.2d 357,321 N.Y.S.2d 5
• Parties: Henry C. WOICIK, Plaintiff, v. Jo-Elisabeth Cestone WOICIK, Defendant.
• Court: New York Supreme Court

Page 5

321 N.Y.S.2d 5

66 Misc.2d 357

Henry C. WOICIK, Plaintiff, v. Jo-Elisabeth Cestone WOICIK, Defendant.

Supreme Court, Trial Term, New York County, Part VIII.

May 10, 1971.

Edward J. McCullen, New York City, for plaintiff, by Martin H. Bockstein, New York City, of counsel.

Saxe, Bacon & Bolan, New York City, by Melvyn R. Rubin, New York City, of counsel, for defendant.

MAX BLOOM, Justice.

Plaintiff sues, alternatively, for divorce or separation, predicated upon the charge of cruel and inhuman treatment (Domestic Relations Law, Section 170, subd. 1). At the close of the entire case he moved to withdraw so much of his prayer for relief as sought a separation. Decision thereon was reserved. The application is now granted.

Defendant has counterclaimed for a separation, charging cruel and inhuman treatment (Domestic Relations Law, Section 200, subd. 1) and abandonment (Domestic Relations Law, Section 200, subd. 3).

The proof submitted amply demonstrates the substance of the charge of cruel and inhuman treatment made by each of the parties. On a number of occasions the defendant, by her violent conduct, kept plaintiff awake all night and, during one of these sessions, struck him on the head with a heavy porcelain candlestick or ash tray. Another occasion, a violent scene during which defendant struck plaintiff, took place in the office of the psychiatrist who was treating their child. From 1965 onward she denied plaintiff his conjugal privileges. The record is replete with still other incidents, less violent in nature but no less corrosive of the marital relationship.

The plaintiff, however, did not passively stand by. He more than made up for his non-participation in oral combat. On one occasion, he broke the nose of his wife. On another, he loosened one of her teeth. On still another he gashed the inside of her mouth, necessitating surgical mending.

Plainly, this was not one of the marriages made in heaven. Its dissolution would merit little consideration were it not that it highlights some of the anomalies presented by the reform in the divorce law.

I.

'Matrimonial actions are neither actions at law nor suits in equity, but statutory actions modeled largely upon equity procedure. Both power and practice depend on the statute, except that where the statute is silent the practice usually follows the rule in equity' (People ex rel. Levine v. Shea, 201 N.Y. 471, 478, 94 N.E. 1060, 1063; Williams v. Williams, 261 App.Div. 470, 475, 25 N.Y.S.2d 940, 945). Accordingly, we look to the statute to determine whether either or both of the parties has a valid defense to the claim of the other.

Section 171 of the Domestic Relations Law governs defenses to an action for divorce. It provides that certain acts shall constitute a bar to an action bottomed upon a charge of adultery. It provides no defenses where the charge forming the basis for the complaint is other than adultery. That this was deliberate on the part of the Legislature is evident from legislative history (Gleason v. Gleason, 26 N.Y.2d 28, 35, 308 N.Y.S.2d 347, 351, 256 N.E.2d 513, 516; Foster & Freed, 'The Divorce Reform Law', 1970, p. 11). As the law currently stands there is no affirmative defense to a divorce sought upon grounds other than adultery (Mante v. Mante, 34 A.D.2d 134, 309 N.Y.S.2d 944; Bishop v. Bishop, 62 Misc.2d 436, 308 N.Y.S.2d 998; Ray v. Ray, 62 Misc.2d 652, 309 N.Y.S.2d 53; Foster & Freed, 'The Divorce Reform Law', 1970, pp. 11--13). If the statutory grounds have been established, relief must follow.

Inasmuch as plaintiff has clearly demonstrated the cruel and inhuman conduct of the defendant, he is entitled to a divorce.

II.

The counterclaim for separation is cast in a somewhat different mold. Section 202 of Domestic Relations Law specifies that, where the relief sought is a separation, the defense of justification is applicable. This has been interpreted to mean that a plaintiff who is guilty of conduct in derogation of her matrimonial obligations is barred from obtaining a separation even though the defendant's conduct would otherwise justify the granting of such relief (Petrella v. Petrella, 23 A.D.2d 489, 255 N.Y.S.2d 962). That is not to say, however, that the defendant in this case provoked the assaults, for on the state of the record it is impossible to say who provided the impetus for the initial clash. It is to say only that the defense of recrimination is applicable and has been made out.

In light of the foregoing, and the granting of the divorce to plaintiff, it is unnecessary to determine whether plaintiff's removal of himself from the matrimonial domicile constituted an abandonment of defendant by plaintiff. It is appropriate to note only that it constituted a reasonable appraisal of the degree to which the marital relationship had deteriorated and that, by placing distance between the parties, it tended to minimize the probability of further violence.

III.

We come, then, to the heart of the controversy--the issue of alimony.

The amendment of Section 170, with the resultant elimination of the defense of recrimination, except in actions founded upon adultery, has created a situation in which each of the parties may plead, and prove, a valid basis for divorce. Other states, which liberalized their divorce laws long before New York did, have endeavored to meet the problem by introduction of the doctrines of 'comparative rectitude' (Hendricks v. Hendricks, 123 Utah 178, 257 P.2d 366) and 'dual divorce' (De Burgh v. De Burgh, 39 Cal.2d 858, 250 P.2d 598; Burns v. Burns, 145 Mont. 1, 400 P.2d 642; Burch v. Burch, 195 F.2d 799 (C.A.3)). Where the doctrine of comparative rectitude is applied the court may weigh the conduct of the parties and may grant the divorce to the party least at fault. Where the doctrine of dual divorce is followed the court may issue a decree granting a divorce to each of the parties provided that each has established cause. (For a general discussion of the subject see 13 A.L.R.3d 1367).

De Burgh (supra), which is the leading case on the subject, leaves to the trial court, in its discretion, the determination of whether the fact situation presents a proper case for the application of one doctrine or the other (see, also, Mueller v. Mueller, 44 Cal.2d 527, 282 P.2d 869; Cardew v. Cardew, 192 Cal.App.2d 502, 13 Cal.Rptr. 620; Perini v Perini, 225 Cal.App.2d 399, 37 Cal.Rptr. 354; Gilmore v. Gilmore, 45 Cal.2d 142, 287 P.2d 769. See v. See, 64 Cal.2d 778, 51 Cal.Rptr. 888, 415 P.2d 776; Cohen v. Cohen, 156 Cal.App.2d 191, 319 P.2d 66).

Here the parties were equally at fault. Each alleged and proved facts sufficient to sustain a cause of action for divorce under section 170, subdivision 1 of the Domestic Relations Law. The plaintiff, having sought a divorce, is entitled to a decree granting him the relief prayed for by him. Defendant has been denied relief only because, by her prayer, she sought a separation, which was less than she is entitled to receive and to which the defense of recrimination is applicable.

Thus, the question is posed directly. Because defendant requested less than she is entitled to get, does section 236, Domestic Relations Law, bar her right to alimony? That section authorizes a direction by the court 'for the support of the wife as, in the court's discretion, justice requires'. The court may do this 'notwithstanding that the court refuses to grant the relief requested by the wife * * * (2) by reason of the misconduct of the wife, Unless such misconduct would itself constitute grounds for separation or divorce.' (Italics supplied.)

Had the defendant sued for divorce, she would have been entitled to a decree granting her the relief sought, regardless of whether the doctrine of comparative rectitude or dual divorce were applied, albeit the plaintiff would have been entitled to the same relief. If this were the situation, there would have been no refusal 'to grant the relief requested by the wife'. Thus, despite the implication in Foster & Freed to the contrary ('The Divorce Reform Law', 1970, p. 13), the condition mandating the refusal to grant alimony would not exist. Indeed, authority supports the conclusion that alimony would be justified, dependent on the need therefor (De Burgh v. De Burgh, supra). That case holds that '(w)hen a divorce is granted to both, alimony may be awarded to either, for the basis of liability for alimony is the granting of a divorce against the person required to pay it' (39 Cal.2d p. 874, 250 P.2d p. 607). (To the same effect, see...