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SUPREME COURT OF NEW YORK, TRIAL TERM, NEW YORK COUNTY 1969.NY.41466 <>; 300 N.Y.S.2d 350; 59 Misc. 2d 770 May 9, 1969 EDWARD HENDEL, PLAINTIFF,v.ARLINE HENDEL, DEFENDANT Saul Mildworm for plaintiff. Rothenberg & Atkins (Michael B. Atkins of counsel), for defendant. Francis J. Bloustein, J. Author: Bloustein

Francis J. Bloustein, J.

Author: Bloustein

 The plaintiff husband instituted this action for a divorce on September 12, 1968, upon the ground that he and the defendant wife have lived separate and apart, pursuant to a decree or judgment of separation, for a period of two years after the granting of such decree or judgment and that he has substantially performed all the terms and conditions of such decree or judgment (Domestic Relations Law, ยง 170. subd. [5]). The parties herein were married in New York City on June 11, 1950, and have two sons, the issue of the marriage, 14 and 11 years of age.

Defendant wife, as plaintiff, in an action in Westchester County, was awarded a judgment of separation on February 10, 1966, which was entered on February 11, 1966. On appeal, such judgment was affirmed (27 A.D.2d 800 [2d Dept.]).

The judgment in the separation action provided, among other things, that the wife (defendant herein) was to receive $125 a week for the support and maintenance of herself and for the support, education and maintenance of the children of the marriage. She was awarded custody of the two children, with the right of visitation by the father. In addition, provisions were made for the wife to have exclusive possession of the premises owned by the parties as tenants by the entirety, the husband being charged with paying the mortgage installments and the real estate taxes for such abode directly to the mortgagee and Receiver of Taxes and for home insurance.

On December 10, 1968, the wife's motion to modify the judgment of separation (increase in alimony and child support), based on a change of circumstances, was denied in the Supreme Court, Westchester County.

The plaintiff husband now seeks to convert the aforesaid separation judgment, in which he was the guilty party, into a divorce decree which will dissolve the marriage contract and terminate all the property and other rights vested in the defendant wife, present and future, stemming from the marriage. If the plaintiff is awarded a decree of divorce, defendant, who has been found by the courts, trial and appellate, to be innocent of fault, since she was awarded the judgment of separation, will have her marriage terminated, not only without her consent but obviously against her wishes and to her detriment, involving the loss to her of valuable property rights.

The defendant in this action instituted the separation action after her abandonment by her husband, plaintiff herein, in order for her to obtain support for herself and for the children of the marriage. It can also be safely assumed that when the defendant wife instituted her action for a separation, she did not contemplate that some two years later, under the revised Domestic Relations Law, her husband would be eligible to institute the present action for divorce, as he has.

The defendant wife in her prayer for relief requested, among other things, that a "possessory lien" be impressed on the premises now owned by the parties as tenants by the entirety. She alleges she is without sufficient means to obtain equivalent housing accommodations elsewhere for herself and the children of the marriage.

In addition, the court is asked to determine the adequacy of the provision for support and maintenance of the wife and children of the parties, as was provided for in the separation decree.

After trial, the court finds that the plaintiff "has substantially performed all the terms and conditions of such decree or judgment (of separation)" as required by subdivision (5) of section 170 of the Domestic Relations Law.

The court is constrained to grant the plaintiff husband a divorce under the circumstances herein presented. The auxilliary problem arises as to the power of the court to protect the innocent spouse from the undesirable results of the divorce as it affects her property rights and to preserve such property rights to her.

Defendant wife, before trial, amended her answer, alleging that subdivision (5) of section 170 is unconstitutional. The court finds no merit in this contention. I do not question the constitutionality of this subdivision, since the State, as sovereign, was empowered to enact the statute in such form as it presently exists. A strong presumption of constitutionality attaches to every statute.

Where a statute is susceptible of two constructions, one of which will make it constitutional and the other unconstitutional, the former must prevail. It is my conclusion that subdivision (5) of section 170 is constitutional even though it applies or may be applied retroactively in favor of a guilty party in a separation action. This question has been discussed at great length and passed upon in Frischman v. Frischman (58 Misc. 2d 208), as well as in the more recently decided cases of Levin v. Levin (N. Y. L. J., Feb. 5, 1969, p. 18, col. 5), and Gleason v. Gleason (59 Misc. 2d 96).

This court shares the views expressed in Frischman v. Frischman (supra, p. 211), wherein the court said, in dealing with the constitutionality of subdivision (5), that it had grave misgivings insofar as the statute makes "this ground available to the 'guilty' spouse against whom a judgment of separation was granted prior to September 1, 1966". The court continued and said (p. 211): "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'". The questions of constitutionality of the revised divorce laws, especially subdivision (5) of section 170 as well as its applicability to separation decrees granted prior to the effective date of the amended statute, have been dealt with completely and adequately in cases in this and neighboring jurisdictions, which are collated in Abelson v. Abelson (59 Misc. 2d 172) and Zientara v. Zientara (59 Misc. 2d 344), as well as in three articles entitled "The Conversion Ground for Divorce in New York" by Foster and Freed, appearing in the New York Law Journal on April 30, May 1 and May 2, 1969.

Since the question of retroactivity was not directly raised on the trial of this action, the court will not deal with the matter because its expressions would amount to dicta. Nor will such discussion contribute toward a constructive determination of the principal issues before the court. I am of the opinion that subdivision (5) of ...

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