| N.Y. Sup. Ct. | Sep 3, 1980
OPINION OF THE COURT
Trial was scheduled in this matter for August 29, 1980. Plaintiff has brought on a motion to strike the case from the calendar, or in the alternative, to stay the proceedings until the defendant can be examined before trial, and further, for an order permitting the amendment of the complaint, which motion was returnable on the trial date. Plaintiff seeks to amend the complaint so as to allege a right to equitable distribution of the marital property or to permit a distributable award, all of which is based upon the newly enacted amendments to section 236 of the Domestic Relations Law.
It should be noted that the action was commenced by the service of the summons on October 11, 1979, and that the amendments to section 236 of the Domestic Relations Law became effective on July 19, 1980.
Plaintiff takes the position that section 236 as amended is not applicable only to cases which were commenced after July 19,1980, but that the equitable distribution provisions are likewise applicable to actions commenced prior
The court is not unmindful of prior decisions of Trial Judges which have addressed this issue. In Deschamps v Deschamps (103 Misc. 2d 678" court="N.Y. Sup. Ct." date_filed="1980-07-23" href="https://app.midpage.ai/document/deschamps-v-deschamps-6200619?utm_source=webapp" opinion_id="6200619">103 Misc 2d 678), Mr. Justice McCaffrey ruled that the provisions of section 236 with respect to equitable distribution are applicable to those matters commenced prior to the effective date of the law. On the other hand, Mr. Justice Morrie Slifkin, in Cooper v Cooper (103 Misc. 2d 689" court="N.Y. Sup. Ct." date_filed="1980-07-31" href="https://app.midpage.ai/document/cooper-v-cooper-6200620?utm_source=webapp" opinion_id="6200620">103 Misc 2d 689), rejected Justice McCaffrey’s position, but allowed the action to be discontinued on the basis that there was no prejudice to the defendant. In reality, the two decisions have one effect, the difference being that Justice McCaffrey applies the new law to the pending action, whereas Justice Slifkin allows the current action to be discontinued, thereby permitting a new proceeding to be commenced under the new law.
Section 236 of the Domestic Relations Law is somewhat novel. It seeks to accomplish two things at the same time. Firstly, the Legislature sought “to eliminate unconstitutional sex distinctions in child and spousal support statutes by amending related statutes primarily in the domestic relations law and family court act”, and secondly, it sought “to establish a new concept of support and distribution of property by implementation of the terms ‘maintenance’, ‘distributive award’, and ‘marital property’. The original statute dealing with alimony is incorporated to deal with proceedings commenced prior to the effective date.”
The above is taken directly from the amended legislative memorandum in support of the legislation dated July 1, 1980. In order to accomplish its ends and to develop legislation which would be acceptable to both the Senate and the Assembly, section 236 of the Domestic Relations Law contains a preamble which reads as follows: “Special controlling provisions; prior actions or proceedings; new actions or proceedings. Except as otherwise expressly pro
The preamble is clear and concise, providing that part A of section 236 shall be applicable to actions currently pending, and further providing that part B would control only actions commenced after the effective date of the statute, which was July 19,1980. The confusion stems from a reading of subdivision 2 and subdivision 5 of part B. Subdivision 2, entitled “Matrimonial actions”, reads in part as follows: “Except as provided in subdivision five of this part, the provisions of this part shall be applicable to actions * * * commenced on and after the effective date of this part.” The exception referred to in subdivision 2 is carried forward from the preamble of section 236, which uses the phrase “Except as otherwise expressly provided in this section”. Subdivision 5 of part B is that portion of the statute which deals with the substantive matter of changing the entire concept of the law so as to establish the rights of the parties with respect to separate property and marital property, and further, to make an “equitable distribution” of the marital property. That subdivision has a specific exception in paragraph a, which states: “Except where the parties have provided in an agreement for the disposition of their property pursuant to subdivision three of this part”. That exception is directly referrable to the preamble of the statute previously quoted (“Except as otherwise expressly provided in this section”), and subdivision 2 of part B previously quoted (“Except as provided in subdivision five of this part”). Although the drafting of the statute may have been somewhat inartful, it is clear from reading these portions that the legislative intent was to create a new
Ҥ 236 is divided in PART A and PART B:
“PART A — is the original alimony provision — made g-n, which is to control m any actions commenced prior to the effective date of the bill. A compulsory financial disclosure subdivision is added requiring compulsory disclosure by both parties of their financial states without requiring a showing of special circumstances.
“Modifications are to be under PART A.
“PART B — is to control in all matrimonial actions and proceedings after the effective date. The following concepts are introduced”.
To hold that equitable distribution was meant to apply to actions commenced prior to the effective date of the statute would fly in the face of clear legislative intent and totally annul and destroy the weeks and months of effort on the part of the Senate and Assembly in developing legislation which could be acceptable to both houses of the Legislature. It should be noted that the amended memorandum is dated July 1, 1980, just prior to the time the bill was actually passed by both houses of the Legislature. Furthermore, it is well known that the Assembly and the Senate had differing views as to this proposed legislation, and that there were substantial negotiations in order to reach a conclusion suitable to both houses. One of the points of contention was the question of the effective date of equitable distribution. The fact that the amended memorandum, which was obviously prepared after all of the negotiations had been completed, continues the concept of separating
Justice Slifkin’s decision, which allows a discontinuance so that a new action may be commenced, is based upon his finding of no prejudice, which in his judgment justifies the court granting the application to discontinue. In addition to circumventing the legislative intent, this court cannot agree that a discontinuance of proceedings commenced prior to the effective date of this statute does not prejudice one of the parties. When an action is commenced, the party bringing that action has full knowledge of his or her rights. It is clear that the new legislation provides an expanded right with respect to the allocation of property, and the party having legal title to that property would be severely prejudiced by the discontinuance of the action and the commencement of another action under the new law. Although the courts of this State are liberal in permitting a plaintiff to discontinue an action, such is not the case where, as here, “substantial rights have accrued or his adversary’s rights would be prejudiced thereby”. (Louis R. Shapiro, Inc. v Milspemes Corp., 20 AD2d 857.)
There might be those who disagree in principle with providing different sets of rules for actions commenced at different times, but the province of the court is to interpret legislation rather than attempt to rewrite it so as to conform to a set of principles which many Judges may feel is more equitable. The court can find nothing in the legislative intent to establish a new set of rules for actions
A short-form order is being signed simultaneously herewith denying the plaintiff’s motion.