Elevating substance over form, Supreme Court Monroe County Acting Justice Richard A. Dollinger allowed a husband to amend his complaint in a 2009 divorce action to add a no-fault claim under D.R.L. §170(7), effective October 12, 2012.

Justice Dollinger in his April 16, 2012 decision in G.C. v. G.C. (pdf), noted New York’s public policy is to freely grant permission to amend complaints. The wife objected, noting that the Legislature expressly limited no-fault claims to actions commenced after its effective date.

D.R.L. §170(7) permits a divorce to be granted upon the sworn declaration of a party that the marriage has been “irretrievably broken down for a period of six months.” Justice Dollinger stated that the Legislature’s limitation of such a no-fault ground to actions commenced after the October 12, 2010 effective date of the statute, was satisfied by requiring that no such claim could be raised by amended complaint until six months after the effective date.

When the husband moves to amend his complaint to add a cause of action under Section 170(7), he does not violate the language of the statute or the intention of the Legislature, Instead, he seeks to. invoke what the Legislature extended to him: a cause of action that has ripened because more than six months have passed since the date of the amendment and during that time, the husband swears that his marriage has been irretrievably broken.

Justice Dollinger relied on Court of Appeals Judge Bernard Meyer’s dissenting opinion in Valladares v. Valladares, 55 N.Y.2d 388 (1982). The 5-2 majority opinion in Valladares would not allow a wife, in an action for divorce commenced in April, 1980, to take advantage of a June, 1980 major amendment to the Domestic Relations Law which introduced Equitable Distribution to New York.  The Court of Appeals recognized that the Legislature had very carefully provided that Equitable Distribution would only apply to actions commenced after its effective date:

The Legislature was meticulous in making explicit provision within its enactment of the 1980 amendment to the statute as to the applicability of the two substantive parts of amended section 236. The language employed is unequivocal . . .  [P]roperty rights in actions commenced prior to that date are to be resolved in accordance with the law as set out in part A; only actions commenced subsequent to that date are subject to the equitable distribution provisions contained in part B. . . . Accordingly, denial of her motion to amend in that respect was mandated as a matter of law. 55 N.Y.2D at 391-92.

Although, the Legislature provided that same care when it provided an effective date for New York’s no-fault law, Justice Dollinger, held:

This Court will not exalt form over substance and force the husband to file another complaint and then seek to consolidate them. The extra filing fees and motion practice are unnecessary.

One does wonder whether the amendment actually requires a spouse to wait the six months after the statute’s effective date while the parties’ are, as here, separated and involved in contested divorce litigation in order to satisfy an unstated requirement that the six months, themselves, can only begin after the date that no-fault claims are allowed to be commenced. If one is allowed to file a no-fault claim on October 12, 2010, one would think the six months can begin before the effective. Such is inconsistent with all of the cases granting no-fault divorces in actions commenced before April 12, 2011.

Moreover, such a requirement would appear to be inconsistent with the rationale behind the Court of Appeals decision in Gleason v. Gleason, 26 N.Y.2d 28 (1960), and other cases, which applied the 1966-enacted ground for divorce of living apart for two years pursuant to separation agreement or decree to periods before the statutes enactment [note: there are issues of statutory language also involved].

Justice Dollinger also distinguished the majority’s opinion in Valladares, by recognizing that the 1980 Equitable Distribution Law actually changed the parties’ property rights. In G.C., Justice Dollinger noted, property rights would not be affected:

The new statute does not create greater rights for a spouse in a divorce, as the equitable distribution statute did in Valladares v. Valladares. The no-fault change provides a speedy method for establishing the grounds and does not obviate the wife’s right to insist on a trial regarding any and all financial issues related to the couple. The new change gives neither party any greater property rights. . . . For these reasons, the language of CPLR 3025(b), the lack of any prejudice to the wife’s property rights and the judicial command to “freely grant” such applications weigh heavily in favor of granting this motion.

Although Justice Dollinger mentioned and found no conflict with the decisions of Queens County Justice Markey in Granger v. Granger, and of Nassau County Justice Palmieri in Heinz v. Heinz, those decisions do not appear supportive. As Justice Markey noted:

The pro se plaintiff, pursuant to Domestic Relations Law section 170, must, in his verified complaint [in this 2006 divorce action], adhere to the grounds stated in his summons of cruel and inhuman treatment . . . and constructive abandonment . . . .

Of course, the pro se plaintiff, if so advised, is entirely free to discontinue the present action and to commence a new action, utilizing the recently enacted “no fault divorce,” found in Domestic Relations Law section 170[7].

In Heinz, the wife had commenced an action for divorce on October 1, 2010, before the effective date of Domestic Relations Law section 170[7], alleging cruel and inhuman treatment. The husband, after the effective date, then brought his own new action for “no fault” divorce. Justice Palmieri agreed with the husband that he was not constrained to bring a counterclaim under the first action and that he was free to start a new action (assuming a counterclaim interposed in the action commenced by the wide before the effective date could not use the no-fault grounds).

Justice Dollinger noted that in G.C., no party was being prejudiced, no substantive rights were being affected. However, as the wife’s lawyer, Teresa Paré pointed out to Justice Dollinger, allowing the amendment of the complaint would allow the husband to do “an end-run around the temporary maintenance provisions that apply to actions filed after October 12, 2010.” If a no-fault claim is going to be allowed, should not the wife be allowed to assert a temporary maintenance claim applying the formula which arose under the same 2010 amendments to the Domestic Relations Law?

Moreover, Justice Dollinger did not discuss the cut-off date. He did not deem the date on which the husband asked to amend his complaint, or any other date, as the new cut-off date for determining marital property. The date of commencement (the date the summons was filed) is of legal significance as it marks the end of the marital economic partnership. The acquisition of marital property ends as of that date.

Might it not prejudice the wife if the no-fault claim is allowed to be interposed, but the cut-off date is not changed? Should the wife be precluded from a share in the property that was acquired between the date the husband commenced this action and the date of his interposition of the no-fault case.

Justice Dollinger’s intent should be applauded. However, in this case, it would appear much simpler, and consistent with statutory language, to have required the husband to file a new action.