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SUPREME COURT OF NEW YORK, SPECIAL TERM, NASSAU COUNTY 1969.NY.40627 <>; 298 N.Y.S.2d 381; 59 Misc. 2d 172 February 26, 1969 MAX M. ABELSON, PLAINTIFF,v.MOLLY C. ABELSON, DEFENDANT Sydney J. Schwartz for plaintiff. Harold W. Grubart for defendant. L. Kingsley Smith, J. Author: Smith

L. Kingsley Smith, J.

Author: Smith

 In this matrimonial action two motions are presented for determination. The plaintiff's motion seeks a dismissal of five of the six affirmative defenses pleaded by the defendant, on the ground that they are legally insufficient. The defendant's motion seeks an allowance of counsel fees to defend this action.

The parties are husband and wife and have lived separate and apart pursuant to a judgment of separation granted in favor of the wife by this court on October 25, 1961.

The plaintiff husband commenced this action for an absolute divorce on September 12, 1968 upon the ground that he and the defendant wife have lived apart pursuant to a decree or judgment of separation for a period of two years after the granting of such degree or judgment and that the plaintiff has substantially performed all the terms and conditions of such decree or judgment (Domestic Relations Law, ยง 170, subd. [5], as added by L. 1966, ch. 254, and amd. by L. 1968, ch. 700).

The six affirmative defenses interposed by the defendant may be summarized in numerical order as follows:

(1) That the plaintiff has been living in open adultery with his paramour in all the years since the granting of the separation judgment and down to the time of the commencement of this action;

(2) that the plaintiff procured a void ex parte Mexican decree of divorce in February, 1962, shortly thereafter married his paramour in Connecticut, and since then has lived with her as husband and wife;

(3) that in 1963 this defendant obtained a declaratory judgment from this court adjudging the Mexican decree of divorce to be void;

(4) that the plaintiff has not been timely in paying alimony required to be paid under the judgment of separation;

(5) that by reason of his conduct since the granting of the judgment of separation the plaintiff does not come into court with clean hands; and (6) that subdivision (5) of section 170 (erroneously referred to in the answer as subdivision [6]), of the Domestic Relations Law is unconstitutional if it is applied to the aforesaid separation judgment which was granted prior to the enactment of such statute.

The plaintiff's motion is directed at all the defenses with the exception of the "fourth" (untimely alimony payments). The decretal portions of the separation judgment contain directions (1) granting a separation in favor of the defendant; (2) pertaining to custody of two children who have since become adults; (3) providing for payment of alimony; (4) granting exclusive possession of certain real property to the defendant herein; and (5) granting exclusive possession of other real property to the plaintiff herein. It is contended by the plaintiff that since the separation judgment contained no directions which could be considered involved in the proffered defenses except the one relating to untimely alimony payments, there is no issue to try with respect to such defenses. The court is inclined to agree with this contention of the plaintiff insofar as it relates to defenses numbered "first", "second", and "third".

The defendant argues, however, that the judgment of separation granted in 1961 determined that the plaintiff herein was the "guilty" party and that the defendant herein was the "innocent" and successful party in that matrimonial action. The defendant further argues it was not the intention of the Legislature to permit the "guilty" spouse under a separation judgment granted prior to September 1, 1967 to maintain an action for divorce based on subdivision (5) of section 170 of the Domestic Relations Law. That was the conclusion reached in Church v. Church (58 Misc. 2d 753), where the court held that such a result would offend the public policy of the State of New York. In Goldenberg v. Goldenberg (N. Y. L. J., Dec. 4, 1968, p. 17, col. 3 [Sup. Ct., Kings County, Morrissey, J.]), the court reached substantially the same result.

It is this court's view that the drastic revision of the law of divorce in general and section 170 in particular in 1966, following years of agitation for relaxation of New York's divorce law, represented a deliberate departure from this State's previous policy and that it is the court's duty both to recognize such change and to give it effect, at least within constitutional limits.

In the new section 170, besides adding three new "fault" grounds to the traditional one of adultery as the basis for an action of divorce, the Legislature included two "non-fault" grounds based on living apart for two years either pursuant to a judgment of separation or pursuant to a duly filed separation agreement. Some critics of the inclusion of these "non-fault" grounds have characterized this method of dissolving a marriage as "divorce by consent". A more accurate view would seem to be that the addition of the "non-fault" grounds for divorce was a recognition of certain "dead marriages" whose lifeless state has been substantiated by the fact that the spouses have lived apart for the required statutory period (1966 Report of Joint Legislative Committe on Matrimonial and Family Laws, March 31, 1966; N. Y. Legis. Doc., 1966, No. 8, pp. 89-92; cf., Wadlington, Divorce Without Fault Without Perjury, 52 Va. L. Rev. 32 [1966]). Irrespective of what may be said for or against the rationale underlying such legislative recognition of "dead marriages" this court is unable to find a basis for judicially introducing into ...

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