This is an action for an absolute divorce brought pursuant to subdivision (5) of section 170 of the Domestic Relations Law, based upon the ground of living apart for a period of two years under a decree of separation entered on November 27, 1959. This case squarely presents for the first time to this court the issue of whether subdivision (5) of section 170, passed in 1966 to take effect on September 1, 1967, and as amended in 1968, is to be applied retroactively.
The plaintiff herein was the innocent party in the prior action. Except for the defendant's opposition to the demand for alimony and counsel fees, he has not resisted this action. Notwithstanding this, unless this court is to be relegated to the function of dispensing divorces by consent, the court must initially determine that the grounds for divorce exist under the statute.
The determination of whether the grounds for divorce exist here actually involves two questions, to wit: (1) Did the Legislature in enacting subdivision (5) of section 170 intend it to have retroactivity; and (2) if it did, can it constitutionally be applied retroactively? The point as to the constitutionality of retroactive application is reached only in the event that the Legislature's intent is interpreted as being in favor of retroactivity.
All of the Trial and Special Term decisions in the First and Second Departments which have dealt with this subdivision from varying legal postures, with the exception of Abelson v. Abelson (59 Misc. 2d 172), have decided in favor of retroactive application of this subdivision. The majority of these decisions, all of which are reviewed in Gleason v. Gleason (59 Misc. 2d 96), have held that it may be constitutionally applied retroactively without regard to which party in the prior separation action institutes the divorce action (LeClaire v. LeClaire, 58 Misc. 2d 41; Frischman v. Frischman, 58 Misc. 2d 208; Adelman v. Adelman, 58 Misc. 2d 803; and Levin v. Levin, N. Y. L. J., Feb. 5, 1969, p. 18, col. 5). Gleason v. Gleason (supra) followed this majority. The remaining decisions have similarly sustained the constitutionality of its retroactive application, but have limited relief to the innocent (Church v. Church, 58 Misc. 2d 753 and Goldenberg v. Goldenberg, N. Y. L. J., Dec. 4, 1968, p. 17, col. 3).
To these two categories the recent decision in Shapiro v. Shapiro (59 Misc. 2d 412, 419) has added a third category by a "two-facet" conclusion which holds that "subdivision (5) may be retroactively applied to 'old' decrees in cases brought by innocent spouses, but must be applied prospectively only in actions instituted by a guilty spouse".
On the basis of any one of these decisions except Abelson the plaintiff herein would be entitled to a judgment of divorce. However, for reasons which I shall discuss hereafter, I cannot agree with these decisions to the extent that they conclude, either by an express holding or by implication, that the Legislature which enacted this subdivision intended it to be applied retroactively. I therefore cannot adopt their conclusion as controlling on the issue presented here.
In my opinion the view expressed in Abelson v. Abelson (supra) admittedly by way of dictum, that the Legislature did not intend retroactive application of subdivision (5), is more in harmony with classical and traditional views of judicial construction. I am mindful of the recent decision of the Appellate Division, Second Department in Kaplan v. Kaplan (31 A.D.2d 247). Subdivision (5), although discussed in the decision, was not before the court for interpretation. Furthermore, the footnote suggests that the decision is not controlling or determinative of the issue presented here.
As was stated in Shapiro v. Shapiro (supra, p. 414): "It is a cardinal rule of statutory construction that the legislative intent is the great and controlling factor, and that such intention is to be determined primarily from the language of the statute under consideration". Any judicial effort to interpret or construe the legislative intent relating to subdivision (5) must begin with an acknowledgment that the language used is silent on this issue, and that "no clear indication of the legislative intent appears in the words selected by the revisors" at the 1966 legislative session (Gershenson, Milton G., The Divorce Reform Law: A Brief for Retroactivity, N. Y. L. J., July 24-26, 1967). The "considerable uncertainty" as to the retroactive effect of subdivision (5) was noted in The Divorce Reform Law, an analysis by Prof. Henry H. Foster, Jr. and Dr. Doris Jonas Freed (The Lawyers Co-operative Publishing Co., Rochester, N. Y., 1968).
This same analysis suggests that the legislative history of the Divorce Reform Law and the statements which were made at the time of its enactment support the position against retroactivity. As Foster and Freed point out, "the matter is obscured due to the failure to maintain an official record of Senate debates." (p. 17).
On April 27, 1966, Senator John H. Hughes, Chairman of the Judiciary Committee and one of the sponsors of the so-called "leader's bill" and the compromise bill finally enacted, in response to questions was emphatic in making it clear that the new law could not be applied to old agreements or separation decrees, i.e., those entered into or rendered before September 1, 1966. Senator Hughes also reported that he had "legal advice" that it would be unconstitutional to provide for a retroactive application of the new "living apart" ground. On the basis of the above-cited decisions the legal advice received by the Senator may be questionable. However questionable the "legal advice", there is no question or ambiguity as to this expression against retroactivity by an influential member of the Legislature which enacted the statute.
In the absence of clear language of intention, a legislative intention as to retroactivity becomes a matter of implying it or judicially creating it.
The case for retroactivity of subdivision (5) rests heavily, if not entirely, on two foundations, to wit, (1) the judicial characterization of the statute as remedial as opposed to substantive, and (2) the memorandum of the Joint Legislative Committee on Matrimonial and Family Laws, prepared and published in connection with the 1968 amendments to the statute.
It is fundamental in construing legislative intent that the courts are bound by the canons of statutory construction. As Professor Gershenson has so succinctly stated, "the almost axiomatic rule of construction of ambiguous or silent statutes" is that they "are to be applied prospectively in the absence of a clear intention of the legislature to the contrary. But there is another equally fundamental rule of construction: That remedial statutes * * * are to be liberally construed, and 'constitute an exception ...