In a proceeding brought under the Uniform Support of Dependents Law (Domestic Relations Law, art. 3-A) the petitioner, the wife of the respondent, seeks support from her husband in the amount of $60 per week. In her petition she alleges that the respondent has refused and neglected to support her since March, 1961, and from her sworn testimony attached to her petition it appears that she is now the recipient of public assistance to the extent of $137.50 per month.
The respondent concedes that the petitioner is his lawful wife, but denies responsibility for her support by reason of the wife's abandonment and he also asserts the defenses of laches and the six-year Statute of Limitations (CPLR 213, subd. 1).
It appears that the parties were married on August 4, 1943 and that they lived together as husband and wife until some time in late 1959 or early 1960. Then, according to the respondent, when he returned home one evening "I just found most of her belongings gone and she was gone, and she didn't return." There was no explanation as to why she left. About 10 or 12 months later the wife contacted her husband and asked him to "vacate the apartment because she wanted to take possession of the apartment; she felt that it belonged to her". In the interval the respondent claims not to have known his wife's whereabouts, although he heard she was in Florida. Some time in early 1961 the respondent, at the petitioner's request, vacated the apartment and surrendered possession to his wife. He claims to have had only "accidental" contact with her thereafter until about 1968 when the petitioner requested support and instituted legal proceedings for the purpose.
The wife's abandonment of her husband, even if established, is insufficient as a matter of law to relieve the husband of his responsibility for her support if she is a public charge or liable to become a public charge. A husband may be required to provide for the support of his wife who is without means and who is a public charge or liable to become a public charge even though she has abandoned him without cause or has been guilty of adulterous conduct (People v. Schenkel, 258 N. Y. 224; People v. McCarthy, 257 N. Y. 567, affg. 139 Misc. 746; Matter of Aronowitz v. Aronowitz, 159 Misc. 103; Jones v. Jones, 161 Misc. 660, 664; "Jones" v. "Jones ", 189 Misc. 186; "Lebolt" v. "Lebolt ", 200 Misc. 704). The converse is also true (Hodson v. Picker, 159 Misc. 356; Hodson v. Holmes, 162 Misc. 226; " Kinsey " v. " Kinsey ", 200 Misc. 760).
Section 101 (subd. 1) of the Social Services Law provides that the "spouse * * * * of a recipient of public assistance or care or of a person liable to become in need thereof shall, if of sufficient ability, be responsible for the support of such person".
Section 415 of the Family Court Act in virtually identical language provides that "The spouse * * * * of a recipient of public assistance or care of a person liable to become in need thereof * * * *, if of sufficient ability, is responsible for the support of such person".
Neither statute contains any exculpatory language to relieve a legally responsible person from the duty of indemnifying the public against the burden of a spouse whose conduct has forfeited all moral claim against the other. Because of the absence of exculpatory words of exemption the provisions of section 101 (subd. 1) of the Social Services Law have been held to be mandatory and the duty imposed thereby absolute. Consequently, the Social Services Law has been construed as conferring no discretionary power upon the court to excuse a legally responsible spouse from the obligation imposed by the statute upon the ground of the other spouse's misconduct or personal unworthiness (Matter of Cybulski, 8 Misc. 2d 119; Trussell v. Kostiw, 35 Misc. 2d 60 [abandonment]).
A similar construction and for the same reason, i.e., the absence from the statute of any exculpatory matters, was given to section 415 of the Family Court Act by the Family Court of Monroe County in Matter of Woods v. Simpson (59 Misc. 2d 1044) wherein it was held that where a wife was a public charge, a defense that she was guilty of adultery was insufficient as a matter of law.*fn1
I cannot agree with the decision of the Family Court of Nassau County in Hotetz v. Hotetz (60 Misc. 2d 271) where the court, in its discretion, found that a husband was not responsible for the support of his wife who had abandoned him without justification so that she could live with her mother in California and who had refused to return to her marital home, even though it appeared that she was then a public charge.
As for the contention that the husband should be held liable for the support of his wife on a "public charge basis" the court in Hotetz (60 Misc. 2d at pp. 274-275) dismissed the argument with the observation "that the respondent should not be penalized because the petitioner Carmen Hotetz has been accepted for welfare benefits in a foreign State after willfully abandoning respondent, without justification, and neglecting to perform her marital duties, when he maintains a home in New York State to which she refuses to return. By making an award of separate maintenance to the wife under the circumstances, the County of Los Angeles has supported the separation of the parties, thus subverting the superior concern of public policy in encouraging the unity of the family."
In reaching this decision the court apparently relied heavily upon the phrase, "In its discretion",*fn2 appearing at the beginning of the second sentence of section 415 of the Family Court Act for authority to relieve the husband of the responsibility for the support of a wife who had abandoned him, even though she was a public charge. The logical extension of the exercise of such a broad discretion is to claim for the court under the guise of an exercise of discretion the right to nullify the responsibility imposed upon the spouse of a recipient of public assistance by the first sentence of section 415.
I have to disagree with the construction placed upon the phrase "In its discretion" by the court in the Hotetz case for I do not believe that "In its discretion" the court has the power to nullify the responsibility imposed upon the spouse of a recipient of public assistance merely because the offending spouse's marital misconduct is so gross as to shock the sensibilities of the court. Such a construction would leave the respondent's responsibility for the support of a spouse who is a public charge dependent upon the individual Judge's motions of how gross the spouse's misconduct or immorality has to be before it outweighs the public's claim for indemnification. Such criteria can only lead to uncertainty in the decisions and make the result in each individual case dependent on the Judge's social, moral, and economic views rather than the law. Considerations of public policy as declared by the law should, I believe, take precedence over private notions of morality.
The phrase, "In its discretion" can be given full scope and still leave a large measure of latitude to the Judge in fixing the measure of the respondent's responsibility by confining it to a determination of whether or not respondent is "of sufficient ability" and what is "a fair and reasonable sum for the support of such relative" and in addition the apportionment of "the costs of such support among such persons as may be just and appropriate in view of the needs of the petitioner and the other circumstances of the case and their respective means" (Family Ct. Act, § 415). There is simply no justification for importing into the statute exculpatory language which is not there (Matter of Cybulski; Trussell ...