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June 1, 1976

Martin KAHN, Individually and on behalf of all other persons similarly situated, Plaintiffs,
Hon. Beatrice SHAINSWIT, acting Justice of the Supreme Court of the State of New York, et al., Defendants

The opinion of the court was delivered by: PIERCE

PIERCE, District Judge.

 Plaintiff Martin Kahn, a defendant in a divorce action pending before Acting Justice Shainswit in the Supreme Court of the State of New York, asks this Court to enter a preliminary injunction restraining defendants from the enforcement of N.Y.Dom.Rel.Law § 239 and to enter an order convening a three-judge court to consider the constitutionality of that statute. The issue was raised by order to show cause signed May 18, 1976 and does not involve any factual disputes. Cognizant that the first question was whether the doctrine of comity bars this application altogether, the Court directed the parties to submit on the law involved. The background of the controversy is as follows.

 In March, 1974, Barbara Kahn, wife of the plaintiff, commenced an action for divorce on grounds of cruel and inhuman treatment in the Supreme Court of the State of New York. Plaintiff Martin Kahn interposed a counterclaim for divorce on grounds of adultery. By order of the State Supreme Court entered in March, 1975, the wife was granted alimony and counsel fees pendente lite. That order was affirmed by the Appellate Division. Upon plaintiff's failure to make the payments, the State Supreme Court granted the wife's application to have plaintiff cited for contempt, overruling plaintiff's argument that he was financially unable to pay the alimony. Plaintiff appealed the contempt order, claiming that it was error for the trial judge to hold him in contempt without a hearing on the issue of wilfulness. The order of contempt was affirmed by the Appellate Division.

 The divorce action was thereafter set down for a jury trial before Acting Justice Shainswit, a defendant herein. On April 28, 1976, the wife moved, pursuant to Dom.Rel.Law § 239, to sever and stay the prosecution of the husband's adultery counterclaim in light of his contempt. By this point, plaintiff had absented himself from the jurisdiction and the trial judge had adjourned the matter several days in the hope that plaintiff would return and purge himself of the contempt. Finding no other effective sanction against plaintiff for his continued defiance of the court's orders, Justice Shainswit accordingly foreclosed plaintiff from the opportunity to present his counterclaim; see Kahn v. Kahn. No. 31470/74 (Sup.Ct.N.Y.Cnty. May 10, 1976).

 At trial, the jury found for the wife on her claim of cruel and inhuman treatment. Counsel for plaintiff herein recorded objections to the constitutionality of § 239 and, while not requesting the state court to rule on that claim, stated that he was reserving the option to press the argument in federal court, citing England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S. Ct. 461, 11 L. Ed. 2d 440 (1964).

 Justice Shainswit thereafter took evidence on the question of finances and alimony and rendered her decision thereon by opinion dated May 10, 1976. The judge directed the submission of appropriate orders staying and severing the counterclaim and granting the judgment of divorce. While proposed orders have been submitted to that court, Justice Shainswit has stated that she will not enter the orders pending the outcome of this application.

 Plaintiff commenced this action pursuant to 28 U.S.C. § 1343(3), § 2201, § 2281 and 42 U.S.C. § 1983, seeking an injunction against alleged deprivation of civil rights by state officials and the convening of a three-judge court to consider the constitutionality of Dom.Rel.Law § 239. The challenged statute provides as follows:

"Whenever in an action for divorce or separation wherein the husband is plaintiff or wherein the wife is plaintiff but the husband interposes a counterclaim, the court or the judge thereof may refuse to grant an order to stay proceedings, where the only default is the failure of the husband to pay alimony or counsel fees due to his inability to make such payments. In no event shall a husband who has been imprisoned for contempt of court for failure to pay alimony or counsel fees . . . be stayed from proceeding with the prosecution or defense of an action where the only default is the failure of the husband to pay alimony or counsel fees." (N.Y.Dom.Rel.Law § 239 (McKinney 1964))

 Thus, if the state court refuses to exercise its discretion in favor of the defaulting husband, the court may prevent him from taking any affirmative action in the lawsuit. A determination under § 239 will not be set aside by the appellate courts absent a showing of abuse of discretion; see Sherwood v. Sherwood, 5 A.D.2d 137, 170 N.Y.S.2d 122 (1st Dept. 1958); Novack v. Novack, 226 N.Y.S.2d 323 (Sup.Ct.1962). The statute does not allow the court to foreclose the defaulting husband from defending on the merits; such a provision was long ago declared violative of due process; see Hovey v. Elliott, 167 U.S. 409, 17 S. Ct. 841, 42 L. Ed. 215 (1897).

 In this action, plaintiff claims that he faces irreparable harm if enforcement of § 239 is not enjoined. Plaintiff asserts that if the judgment of divorce is entered, he will be required to pay alimony whereas if he had succeeded on his adultery counterclaim, no alimony could have been awarded. Further, plaintiff asserts that the doctrine of res judicata will operate to prevent him from ever litigating the adultery issue.

 The Court does not agree that plaintiff faces any such harm. Plaintiff has not alleged that he is foreclosed from an appeal of Justice Shainswit's expected ruling, and it appears that the usual channels of appellate review are available pursuant to N.Y.C.P.L.R. §§ 5601(b) and 5701(a). Even if plaintiff does not wish to present his constitutional argument to the state courts, he can argue that the order staying his counterclaim was an abuse of discretion, thus raising the possibility that this matter could be resolved without any court reaching the constitutional question. If plaintiff loses any such non-constitutional appeal in state court, he may then take the constitutional argument to federal court, since it appears he has reserved that issue on the trial court record; see England, supra, 375 U.S. at 421, 84 S. Ct. 461. In the alternative, plaintiff can present his constitutional claims to the State Supreme Court, which appears to still have jurisdiction over the divorce action and he can press those arguments on any appeal. Once presented with the issue, the Justices of the state courts are duty-bound to consider the question. Thus, the issue on this motion is solely whether, under these circumstances, the plaintiff's claim is properly before this Court.

 The circumstances of this case bring to bear the considerations of federal-state comity announced in Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), and more recently expanded into the area of pending state civil proceedings; see Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S. Ct. 1200, 43 L. Ed. 2d 482 (1975); Mendez v. Heller, 530 F.2d 457 (2d Cir. 1976); Anonymous v. Association of the Bar of the City of New York, 515 F.2d 427 (2d Cir.), cert. denied, 423 U.S. 863, 96 S. Ct. 122, 46 L. Ed. 2d 92, 44 U.S.L.W. 3204 (1975); Gras v. Stevens, 415 F. Supp. 1148 (S.D.N.Y. 1976) (three-judge court, per Friendly, C.J.). While no one of these recent decisions alone operates to dispose of the issues herein, the cumulative weight of their precedent compels this Court to conclude that the doctrine of comity forecloses plaintiff's claim here.

 The doctrine of Younger v. Harris, developed in the context of applications for injunctions against pending state criminal proceedings, teaches that the federal system must remain

"cognizant that a pending state proceeding, in all but unusual cases, would provide the federal plaintiff with the necessary vehicle for vindicating his constitutional rights, and, in that circumstance, the restraining of an ongoing prosecution would entail an unseemly failure to give effect to the principal that state courts have the solemn responsibility, equally with the federal courts, 'to guard, enforce, and protect every right granted or secured by the Constitution of the ...

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