Yoli v. Yoli

• Decision Date: 06 December 1967
• Parties: Cynthia YOLI, Plaintiff, v. John Anthony YOLI, Defendant.
• Court: New York Supreme Court

Page 470

285 N.Y.S.2d 470

55 Misc.2d 416

Cynthia YOLI, Plaintiff, v. John Anthony YOLI, Defendant.

Supreme Court, Special Term, Kings County, Part V.

Dec. 6, 1967.

S. Edmund Resciniti, Jr., Brooklyn, for plaintiff.

Abraham Stember, Brooklyn, for defendant.

MEMORANDUM

LOUIS B. HELLER, Justice.

In this action for separation commenced prior to September 1, 1967, plaintiff moves for leave to add a prayer for judgment of absolute divorce pursuant to Domestic Relations Law Sec. 170(1). The proposed amendment would rest upon the same factual allegations presently supporting one of the causes of action for separation--the cruel and inhuman treatment of plaintiff by defendant. All of the acts of alleged mistreatment took place prior to September 1, 1967.

The prime question to be resolved here is, of course, whether the benefits conferred by the amended divorce laws are retroactive in effect. It is settled law in this state that an amendatory statute may be applied prospectively only unless there is a clear intent to the contrary (Jacobus v. Colgate, 217 N.Y. 235, 240, 111 N.E. 837, 838; Walker v. Walker, 155 N.Y. 77, 81, 49 N.E. 663, 664; Waddey v. Waddey, 290 N.Y. 251, 254, 49 N.E.2d 8, 9; McKinney, Statutes, Book 1, § 52). A law is not per se unconstitutional merely because it may be retroactive in effect. There are no such prohibitions in either the Federal or New York State Constitutions except with respect to laws which may impair the obligation of contracts or 'ex post facto' laws, which refer to penal laws alone (In re West's Estate, 289 N.Y. 423, 46 N.E.2d 501; Brearley School v. Ward, 201 N.Y. 358, 363, 94 N.E. 1001, 1002; Matter of Bailey v. Bush Terminal Co., 178 Misc. 1045, 37 N.Y.S.2d 275, rev. 265 App.Div. 758, 40 N.Y.S.2d 746, affd. 291 N.Y. 534, 50 N.E.2d 653).

Whether a statute is retrospective or prospective may be determined by a search for legislative intent. I have made an exhaustive study of such material as has been made available to me on the history of this legislation. I must confess that picking the collective legislative brain in this instance has not been a particularly rewarding experience. The Wilson-Sutton Bill which I am informed and believe was intended to be retrospective in operation (see Commentary by Philip H. Schaeffer, Counsel to Joint Legislative Committee, Appendix A, Hendler, Matrimonial Practice in the New York Supreme Court, p. 203, f.n. 39) was greatly modified in a number of respects by the 'Leaders' Bill' which was eventually enacted. The effective date except for the 'living apart' grounds and other particulars not pertinent here, is the same in both bills. To that extent, although there are many who hold for retroactivity on all the grounds in Section 170, it does not appear that the Legislature intended to make the first three grounds under Section 170 prospective only. Mr. Schaeffer (Hendler, Matrimonial Practice in the New York Supreme Court, Appendix A, pp. 201, 202, supra) is of the opinion that 'if the statute's date is interpreted in accordance with the usual presumption against retroactivity' all the grounds in Section 170 are prospective only and that the acts under these new grounds must have taken place after September 1, 1967. He does state, however, that 'Such an interpretation would obviously cause considerable hardship and serve no particularly useful social purpose.' There is nothing in the material I have seen including the televised report of the Senate debate preceding adoption of the bill on April 26, 1966 which shows an intent that the first three provisions, the 'fault' grounds, be prospective only. Senator Hughes when questioned on the 'living apart' features (subdivisions 4 and 5) gave it as his view that these grounds were intended to be prospective only. Even here, although the matter is not now before the court, we would be bound not by what he thought the Legislature intended but by what it finally enacted.

A notable exception to the rule regarding retroactivity is the 'remedial statute.' With respect to such laws, where vested rights are not involved and there is no question of constitutional rights such as impairment of contract or violation of due process requirements, a retroactive construction is possible without express language in the legislation (McKinney, Statutes § 54; Shielcrawt v. Moffett, Sup., 49 N.Y.S.2d 64, affd. 268 App.Div. 352, 51 N.Y.S.2d 188, rev. on other grounds 294 N.Y. 180, 61 N.E.2d 435; People ex rel. Collins v. Spicer, 99 N.Y. 225, 233, 1 N.E. 680, 684).

'Remedial legislation' here as in every such situation requires definition. 'Nice distinctions are often necessary, Jacobus v. Colgate, 217 N.Y. 235, 111 N.E. 837. The word 'remedy' itself conceals at times an ambiguity, since changes of the form are often closely bound up with changes of the substance * * *. In the end, it is in considerations of good sense and justice that the solution must be found * * *.' (Matter of Berkovitz v. Arbib & Houlberg, 230 N.Y. 261, 271, 130 N.E. 288, 290.) I have no doubt that the divorce reform law is legislation which was intended to provide long overdue remedies whether viewed as a new remedy, where there was none before or a modification or enlargement of an existing remedy (Jacobus v. Colgate, 217 N.Y. 235, 242, 111 N.E. 837, 839, supra; Shielcrawt v. Moffett, 294 N.Y. 180, 188, 61 N.E.2d 435, 438; McKinney, Statutes §§ 35, 54). I find no area here which violates due process or a vested or contractual right in violation of the Constitution. On the contrary, I believe that a failure or refusal to accord a plaintiff, with complaints of mistreatment on August 31, 1967, the same rights we would a plaintiff who complains of similar mistreatment on September 1, 1967 would be a denial of equal protection of the laws. Mr. Schaeffer points out that a plaintiff with a grievance which predates September 1, 1967 still has an escape hatch through Section 170(5). Under this subdivision, plaintiff must go through with a separation action to a decree and then may after two years of 'living apart' sue again for a divorce. Apart from the very obvious disability that this 'double feature' with a two-year hiatus entails, as permitted by this provision, either party to the separation, innocent or guilty, plaintiff or defendant, may become the plaintiff in the second stage divorce. There has been considerable criticism of this procedure which can convert an innocent victorious party into a defendant with consequent loss of estate and survivorship rights (see D.R.L. 176; E.P.T.L. § 5--1.2; New York County Lawyers' Association, Report of Special Committee on Matrimonial Law, Bar Bulletin Vol. 24, No. 2, p. 65; Comparison and Critique of Proposed Amendments to Divorce Law, Foster and Freed, N.Y.L.J. March 29, 1967, March...