In an action by plaintiff husband for divorce grounded on subdivision (5) of section 170 of the Domestic Relations Law which provides that an action for divorce may be maintained by a husband or a wife on the ground that the parties have lived apart pursuant to a decree or judgment of separation for a period of two years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment, defendant wife moves by order to show cause for an order staying the plaintiff from proceeding with conciliation and all other proceedings in the divorce action.
The parties herein were married in New York City in 1943. Defendant wife, as plaintiff, was the successful litigant in an action for separation in Queens County and was granted a judgment of separation on February 25, 1963. The judgment provided that the wife was to receive $90 per week for the support and maintenance of the plaintiff (in that action) and the three infant children of the parties, as well as the sum of $375 as counsel fee.
For some time after the granting of the judgment the husband made sporadic support payments and accumulated arrears of $715. The counsel fee was never paid by him.
In September, 1963, immediately after contempt proceedings were commenced against him, which resulted in an order of the Queens County Supreme Court holding the husband in contempt, he absconded to the State of New Jersey where he established a residence, and the wife was unable to effectuate payment of the arrears.
In January, 1964 the wife learned for the first time that her husband had remarried after securing a unilateral Mexican divorce. She pursued him to New Jersey and there instituted proceedings against the husband which resulted in a declaration on July 29, 1964 by the Superior Court of New Jersey that the Mexican divorce was a nullity, and that the husband's second marriage was null and void.
The husband was thereafter convicted of bigamy and his incarceration in a New Jersey penal institution was averted only by grace of the wife who, having custody of the three infant children of the marriage, accepted the express promise of the husband to provide support and maintenance for her and the three children in the sum of $60 per week which she, as plaintiff, had been granted pursuant to a New Jersey judgment of separation dated April 6, 1965.
It is on this 1965 New Jersey judgment of separation that the husband, as plaintiff, now seeks a divorce against defendant wife, invoking subdivision (5) of section 170 of the Domestic Relations Law.
We are thus confronted for the first time with an action for divorce wherein the "guilty" party, against whom a judgment of separation had been granted, now bases an action for absolute divorce on that same separation judgment, against a spouse who was the successful litigant in the separation action against him.
In the court's decision in Leclaire v. Leclaire (58 Misc. 2d 41) granting a divorce to plaintiff wife, there was no such problem, as the plaintiff therein had also been the successful party, as plaintiff, in the separation action. In Leclaire I also held that subdivision (5) of section 170 was retroactive insofar as it related to judgments of separation secured before the enactment of the Divorce Reform Law on September 1, 1966, and I so hold in the instant action, with qualifications as hereinafter noted.
The right to seek a divorce pursuant to subdivision (5) of section 170 is available to either spouse, that is, to the "culpable", as well as to the "innocent" party in the separation action. If the Legislature had intended that only the successful litigant in the prior action can sue for a divorce in accordance with subdivision (5), it would have so formulated the statute. It did not do so in the face of many pointed arguments by a large segment of the Bar.
However, a spouse who obtained a judgment of separation before the enactment of the Divorce Reform Law of 1966, never contemplating nor envisioning that it would one day ripen into grounds for an absolute divorce, with its concomitant dire consequences of loss of valuable property and testate and intestate inheritance rights, will suffer entirely unforeseen and unconscionable sequelae under subdivision (5) of section 170. I have grave misgivings about the constitutionality of subdivision (5) of section 170 as presently constituted, particularly insofar as it makes this ground available to the "guilty" spouse against whom a judgment of separation was granted prior to September 1, 1966.
While these observations may be obiter dicta in the present posture of this action, I will think hard and long before granting a divorce to an unsuccessful spouse under the afore-mentioned circumstances, without safeguarding, in every way consonant with my powers, the "innocent" party's economic and inheritance rights as "surviving spouse" under the Estates, Powers and Trusts Law. As a court of equity, I can do no less.
In an analogous, although not parallel situation (Di Russo v. Di Russo, 55 Misc. 2d 839 [Sup. Ct., Nassau County]), Justice Meyer in a penetrating opinion held that notwithstanding that he would not restore a divorced spouse's position as wife insofar as conjugal rights and marital status ...