OPINION OF THE COURT
These appeals, argued together, present common questions as to the retroactivity of the newly enacted part B of section 236 of the Domestic Relations Law (L 1980, ch 281) to matrimonial actions and proceedings commenced prior to its effective date, July 19, 1980. In our opinion, the retroactive application' of this new statutory scheme to marriages contracted and property acquired prior to July 19,1980 does not offend constitutional requirements of due process and equal protection of the laws. However, as a matter of statutory construction, the new provisions are inapplicable to matrimonial actions and proceedings, as defined in part B of section 236, which were commenced prior to July 19, 1980. We also conclude that, with respect to matrimonial actions commenced prior to July 19, 1980, an application for leave to discontinue without prejudice (see CPLR 3217, subd [b]), may not be granted where the purpose of such application is to enable the moving party to circumvent the intent of the Legislature by commencing a new action on or after that date.
I. THE STATUTE INVOLVED
At issue here is the applicability of part B of section 236 of the Domestic Relations Law, which has been termed “the most sweeping reform of the divorce laws in this State since, ¡the Divorce Reform Act of 1966” (see Governor’s Memorandum, McKinney’s Session Laws of NY, 1980, p 1863).
Further, the amended section 236 includes “special controlling provisions”, which provide, in pertinent part: “Except as otherwise expressly provided in this section, the provisions of part A shall be controlling with respect to any action or proceeding commenced prior to the date on which the provisions of this section as amended become effective and the provisions of part B shall be controlling with respect to any action or proceeding commenced on or after such effective date.”
The effective date of the amendments was July 19, 1980 (L 1980, ch 281, §47).
II. FACTS
In each of the cases before us, an action for divorce was commenced prior to July 19, 1980, and thereafter one of the parties took steps to bring the action within the ambit of part B of section 236 of the Domestic Relations Law.
In the case of Steven Valladares against Anne Bernadette Valladares, plaintiff commenced an action for divorce on or about April 2, 1980. In the complaint, the plaintiff husband accused the defendant wife of cruel and inhuman treatment. On or about April 15, 1980, defendant served a verified answer, in which she alleged adultery as an affirmative defense. In September, 1980 plaintiff amended his complaint in order to assert a cause of action for adulteries allegedly committed by defendant in June, 1980. Thereafter, defendant moved to amend her answer to assert a demand for divorce on the ground of the adultery alleged
In the case of Virginia S. White against William H. White, plaintiff commenced an action for divorce in November, 1979. In her complaint she alleged causes of action for cruel and inhuman treatment and constructive abandonment. Defendant served a verified answer in December, 1979. Pretrial discovery with respect to financial matters was completed and the action was noticed for trial. On the eve of trial, plaintiff dismissed her attorney. Thereafter, in a motion returnable September 12, 1980, defendant moved to amend his answer to assert counterclaims for divorce. Plaintiff cross-moved, pursuant to CPLR 3217 (subd [b]), for leave to discontinue the action “so that I may commence a new action whereby I can seek to avail myself of the provisions of the recent amendments to the Domestic Relations Law, effective as of July 19, 1980, relating to the equitable division of marital property.” In the order appealed from, entered September 26, 1980, Special Term granted plaintiff’s cross motion to discontinue the action, and denied defendant’s motion to amend his answer “with leave to defendant to assert the same in the new action which shall be promptly instituted by plaintiff.”
In the case of Jeanette Tucker against Spencer Tucker, plaintiff commenced an action for divorce on or about December 12, 1978, by service of a summons. Thereafter, on January 16, 1979, plaintiff served a verified complaint in which she alleged cruel and inhuman treatment and sought, intew alia, a divorce and a judgment impressing a constructive trust upon the assets obtained by defendant during the course of the marriage. On or about February 12, 1979 defendant served a verified answer, denying the essential allegations of the complaint. Although the case was noticed for trial in April, 1980, trial was adjourned in
III. RETROACTIVITY
Defendant Anne Bernadette Valladares contends that section 236 (part B, subds 2, 5) of the Domestic Relations Law authorize the application of part B to all actions pending on July 19, 1980, if all or part of the relief granted is one of the forms of relief specified in subdivision 5 (see Deschamps v Deschamps,
Further, since subdivision 5 is not “expressly” applicable to all actions pending on July 19, 1980, including actions commenced prior to July 19, 1980, defendant’s contention flies in the face of the “special controlling provisions” of section 236 of the Domestic Relations Law, which provide: “Except as otherwise expressly provided in this section, the provisions of part A shall be controlling with respect to any action or proceeding commenced prior to the date on which the provisions of this section as amended become effective and the provisions of part B shall be controlling with respect to any action or proceeding commenced on or after such effective date.” (See Mercier v Mercier,
IV. CONSTITUTIONALITY
lYith respect to actions commenced on or after July 19, 1980, defendant Spencer Tucker contends that the retroactive application of part B of section 236 of the Domestic Relations Law to persons married prior to July 19, 1980 and property acquired prior to July 19, 1980, violates due process and impairs the contractual rights of third parties.
The retrospective application of new legislation may offend the due process clause if, upon balancing the considerations on both sides, it appears that retrospective application would be unreasonable (see Chase Securities Corp. v Donaldson,
In a nisi prius decision, Deschamps v Deschamps (
Moreover, it is questionable whether “vested” rights are in fact impaired by the concept of retroactivity in this instance. Upon dissolution of the marriage, the common law has traditionally required that the court fix- support obligations and order one spouse to relinquish property to the other, whether it be in the form of alimony or in some other form.
Traditionally, New York courts' authorized to award alimony and/or child support to an aggrieved spouse (see Domestic Relations Law, § 236, part A), may, a fortiori, enforce such authority by directing the sequestering of the property of the other spouse and, should circumstances so warrant, order the sale of such property (see Domestic Relations Law, §§ 233, 243).
Essentially, the provisions of part B of section 236 of the Domestic Relations Law do not create new obligations of support (cf. Matter of Kane v Need,
Based upon these considerations, we conclude that the retroactive application of part B of section 236 of the Domestic Relations Law to persons married before its effective date and property acquired before its effective date does not violate due process.
Nor does the new law violate constitutional prohibitions against the impairment of contractual rights. It is well-settled that marriage is not a contract within the meaning of the provisions of the Federal Constitution which prohibit impairment of contractual obligations (see Maynard v Hill,
We also reject Mr. Tucker’s argument that part B of section 236 deprives married persons of equal protection of the laws because it divides all people married beforé July 19,1980 into two classes: those who commenced actions for dissolution of the marriage before July 19, 1980, and those
In support of his claim that part B of section 236 of the Domestic Relations Law offends the equal protection clause insofar as it applies to persons married before July 19, 1980, Mr. Tucker cites Zervalis v Zervalis (NYLJ, Jan. 7, 1981, p 14, cols 5, 6, supra), which noted that the new provisions did create an anomaly: “[T]he new law was enacted as a remedial statute to cure defects in the existing law but, nevertheless, took effect on a date arbitrarily set. Hence, there have been created two classes of citizens in New York, each seeking a decree of divorce but with different rights and benefits, depending upon whether or not the action was commenced before or after July 19, 1980. How the date July 19, 1980 has any reference as a reasonable ground related to the objective of the legislation cannot be found in a reading of the statute by this court.” Ironically, Zervalis v Zervalis (supra) advocates expanding the application of part B of section 236, on equal protection grounds, to all actions pending on July 19, 1980.
Contrary to the dicta in Zervalis v Zervalis (supra), we conclude that basing the applicability of part B upon whether the matrimonial action was instituted on or after July 19, 1980 does have a rational basis. Concededly, the new law recognizes that marriage is an economic partnership (see Governor’s Memorandum, McKinney’s Session Laws of NY, 1980, p 1863). However, in its definition of “marital property”, the Legislature has adopted the view that the economic partnership terminates upon “the execution-of a separation agreement or the commencement of a matrimonial action” (see Domestic Relations Law, § 236, part B, subd 1, par c). Although reasonable minds may differjas to when the marital relationship is deemed terminated (compare Brandenburg v Brandenburg, 83 NJ 198, with Wife J. v Husband J.,
Although the significance placed upon the commencement date of a matrimonal action has a rational basis, it is manifestly evident that the statutory scheme is susceptible to procedural manipulation. In the cases before this court the parties have attempted, by various procedural means, to manipulate the date of commencement of the action for divorce. We turn now to a discussion of the procedural propriety of their efforts.
V. THE DATE ON WHICH AN ACTION IS DEEMED COMMENCED
The amendments to section 236 of the Domestic Relations Law shed no light on how to determine the date on which a matrimonial action is deemed commenced. However, on this question, section 211 of the Domestic Relations Law provides, in pertinent part: “A matrimonial action shall be commenced by the service of a summons * * * or a summons and verified complaint.” Similarly, CPLR 304 provides: “An action is commenced and jurisdiction acquired by service of a summons.”
The date on which the action is commenced does not necessarily coincide with the dates on which the claims asserted in that action are interposed (see CPLR 203). In the usual case, the claim or claims in the complaint are interposed when the summons is served upon the defendant (see CPLR 203, subd [b], par 1). Moreover, a claim asserted in an amended pleading is generally “deemed to have been interposed at the time the claims in the original pleading were interposed” (see CPLR 203, subd [e]). However, this general rule does not apply if “the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to
Mrs. Valladares notes that in September, 1980 her husband interposed a claim for divorce on the ground of adultery, and thereafter she sought and was granted leave to assert a counterclaim for divorce on the ground of adultery. She contends that these claims were not interposed before July 19,1980 and, therefore, any relief granted with respect to those claims should be governed by part B of section 236. However, the amendments to section 236 do not refer to the dates on which the claims were interposed. The statutory language is plain: the date of the commencement of the action must be deemed controlling.
For most purposes* a defendant who interposes a counterclaim has the same rights as a plaintiff in an independent action (see CPLR 3019, subd [d]; Brennan v Mead,
Mr§. Valladares may only come within the ambit of Part B of section 236 if she commences a separate action on her claim. Special Term properly held that if she inter
In the case where there, are two matrimonial actions pending, one commenced before July 19, 1980 and the other commenced on or after July 19, 1980, the actions may be consolidated for trial purposes (see CPLR 602, subd [a]). If only one party prevails, the date on which that party’s action was commenced will be deemed controlling. However, where both parties assert meritorious claims in separate actions, the court is faced with two controlling dates, and two conflicting statutory schemes (see Cooper v Cooper,
VI. THE PROPRIETY OF DISCONTINUANCE WITHOUT PREJUDICE
Mrs. White and Mrs. Tucker find themselves in a diametrically different position from Mrs. Valladares. As plaintiffs they each commenced an action for divorce before July 19, 1980 and, thereafter, each was granted leave to discontinue her action without prejudice for the purpose of commencing a new action which would be controlled by part B of section 236 of the Domestic Relations Law.
Since issue had been joined in each case, the plaintiff wife therein could not exercise the statutory right to discontinue an action without prejudice and without leave of the court (see CPLR 3217, subd [a], par 1; cf. Kamhi v Kamhi,
An application for leave to discontinue an action without prejudice “is addressed to the legal, not the arbitrary, discretion of the court” (see Winans v Winans,
Plaintiff should be permitted to discontinue an action without prejudice in order to rectify a tactical error (see Schimansky v Nelson, supra) or to simplify the form of the action to avoid juror confusion (see Bateholts v Russell, supra). However, generally, leave to discontinue an action without prejudice should not be granted to enable plaintiff to circumvent the effect of a court order in defendant’s favor, since prejudice would inure to defendant (see Schneider v Schneider,
In matrimonial actions, the courts have broader discretion to grant or deny leave to discontinue without prejudice, because the interests of society and third parties (e.g., children) may be at stake (see Winans v Winans, supra). However, in the cases before us, each plaintiff (Mrs. White and Mrs. Tucker) sought leave to discontinue her action for the purpose of circumventing the “special controlling provisions” of section 236 of the Domestic Relations Law, as amended (see Schneider v Schneider, supra; Schultz v Kobus, supra). (
Moreover, the remedies prescribed in part B of section 236 are substantially different from the provisions of part A. Therefore, plaintiffs’ discontinuance of their actions was, in these instances, inherently prejudicial (see Mercier v Mercier,
As plaintiffs, Mrs. White and Mrs. Tucker chose to commence actions for divorce prior to July 19, 1980, presumably with the understanding that former section 236 of the Domestic Relations Law, now part A of section 236 of the Domestic Relations Law, would govern their rights. Therefore, the application of part A is not contrary to the interests of justice.
For these reasons, we conclude that Mrs. White and Mrs. Tucker should not have been granted leave to discontinue their actions, commenced before July 19, 1980, without prejudice. Thus, in White and Tucker, the orders appealed from should be reversed, and the motion of each plaintiff denied.
The result would be different if the moving party had interposed a counterclaim on or after July 19, 1980 in an action commenced before July 19, 1980, and thereafter sought leave to discontinue the counterclaim in order to commence a separate action governed by part B of section 236 of the Domestic Relations Law. If the claim could have been brought in the form of an action governed by part B of section 236 at the time it was first interposed, discontinuance v/ould only serve to correct a tactical error of form and not of substance (see Ruderman v Brunn,
Further, defendants should be granted leave, pursuant to CPLR 3025 (subd [b]) to amend their answers!, if so advised, to assert their counterclaims for divorce. CPLR 3025 (subd [b]) provides, in pertinent part, that “[l]eave
Gibbons, O’Connor and Thompson, JJ., concur.
Action No. 1:
Order of the Supreme Court, Nassau County, dated December 10, 1980, affirmed insofar as appealed from, with $50 costs and disbursements.
Action No. 2:
Order of the Supreme Court, Westchester County, entered September 26, 1980, reversed, on the law, with $50 costs and disbursements, defendant’s motion for leave to amend his answer is granted, upon condition that he stipulates that plaintiff’s rights will not be affected if she is found guilty of misconduct, and upon any other conditions which Special Term deems just (see CPLR 3025, subd [b]), and plaintiff’s cross motion for leave to discontinue the action without prejudice is denied.
Action No. 3:
Order of the Supreme Court, Queens County, entered October 29, 1980, reversed, on the law, with $50 costs and disbursements, plaintiff’s motion for leave to discontinue the action without prejudice is denied, and defendant’s cross motion to amend his answer is granted, upon condition that he stipulates that plaintiff’s rights will not be affected if she is found guilty of misconduct, and upon any other conditions which Special Term deems just (see CPLR 3025, subd [b]).
Notes
Pursuant to section 71 of the Executive Law, the Attorney-General was notified of this constitutional challenge, but chose not to participate in this lawsuit.