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Retroactive Application of New Grounds for Divorce Under §170

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Retroactive Application of New Grounds for Divorce Under §170 Buffalo Law Review Volume 17 Number 3 Article 17 4-1-1968 Retroactive Application of New Grounds for Divorce Under §170 Domestic Relations Law Michael L. McCarthy Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview Part of the Family Law Commons Recommended Citation Michael L. McCarthy, Retroactive Application of New Grounds for Divorce Under §170 Domestic Relations Law, 17 Buff. L. Rev. 902 (1968). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol17/iss3/17 This Legislative Note is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. LEGISLATIVE NOTE RETROACTIVE APPLICATION OF NEW GROUNDS FOR DIVORCE UNDER §170 DOMESTIC RELATIONS LAW Wedlock, as old men note, hath likened been Unto a public crowd or common rout, Where those that are without would fain get in And those that are within would fain get out. -Poor Richard's Almanack I. INTRODUCTION The first general divorce law in the State of New York was enacted in 1787, providing for judicial divorce on the grounds of adultery.' For nearly two centuries, adultery remained the sole ground for divorce in New York. Under new section 170 of the Domestic Relations Law, which took effect on September 1, 1967, New York has five grounds for divorce in addition to adultery: 2 cruelty; abandonment; imprisonment; judicial separation for two years; and separation pursuant to a written agreement for two years. Now the New York courts are faced with the task of interpreting the new law. One of the many problems to be dealt with is whether the new grounds may be applied where a cause of action, such as cruelty or abandonment, took place prior to September 1, 1967. The purpose of this note is to explore the influences and alternatives which the courts must take into consideration in construing section 170 of the Domestic Relations Law. II. CONSTITUTIONAL PROHIBITIONS TO RETROACTIVE APPLICATION OF TME NEw GROUNDS There is no doubt that marriage is a civil contract, and yet it is more. It is a status, or institution, in which the state has a fundamental interest.4 The question arises, therefore, as to how the state can control and regulate the marriage and its parties without violating the federal constitutional prohibition against impairment of contract.5 In the case of Hunt v. Hunt,6 it was stated: 1. H. Foster & D. Freed, Law and the Family § 6:2 (1966). 2. N.Y. Dom. Rel. Law § 170 (Supp. 1967). The new grounds for divorce are: cruelty; abandonment for two or more years; imprisonment for more than three years; separation pursuant to a judicial separation for two years; and separation pursuant to written separation agreement for two years. 3. Fearon v. Treanor, 272 N.Y. 268, 2 N.E.2d 815 (1936); Fisher v. Fisher, 250 N.Y. 313, 165 N.E. 460 (1929) ; Morris v. Morris, 31 Misc. 2d 548, 220 N.Y.S.2d (Sup Ct. 1961) ; Lorfice v. Lorfice, 148 N.Y.S.2d 578 (Sup. Ct. 1956); Dorgeloh v. Murtha, 92 Misc. 279, 156 N.Y.S. 181 (Sup. Ct. 1915). 4. Fearon v. Treanor, 272 N.Y. 268, 5 N.E.2d 815 (1936); Risk v. Risk, 169 Misc. 287, 7 N.Y.S.2d 418 (Sup. Ct. 1938); Q'Conner v. Jackson, 74 F. Supp. 370 (W.D.N.Y. 1947). (The power to regulate marriages is one retained by the states.). 5. U.S. Const. art. I, § 10. 6. 131 U.S. Append. clxv, 24 L. Ed. 1109 (1879). 902 LEGISLATIVE NOTE In the Dartmouth College Case, 4 Wheat. 629, 4 L. Ed. 629, it was expressly said by Chief Justice Marshall, in delivering the opinion of the court, that the provision of the Constitution prohibiting States from passing laws impairing the obligation of contracts "had never been understood to embrace other contracts than those which respect property or some object of value, and confer rights which may be asserted in a court of justice." It never has been understood to restrict the general right of the Legislature to legislate upon the subject of divorces. Those Acts enable some tribunal not to impair a marriage contract, but to liberate one of the parties because it has been broken by the other.. .. 7 Thus, initially the Court reasoned that since the marriage contract con- ferred no property rights, nor rights which may be asserted in a court of justice, dissolution of the contract would not be impairment in the constitu- tional sense. However, in Maynard v. Hill s the Court did not attempt to distinguish the type of contract involved in marriage, but substituted a different standard in its place: [M]arriage is an institution of society, creating a status which may be regulated and controlled by public law; that legislation affecting the institution or annulling the relation between the parties is not within the prohibition of the Constitution of the United States against im- pairment of contracts. .... 9 This later and still recognized view, that marriage is a status, controls as to questions of federal constitutionality of divorce legislation.' 0 Under New York law, marriage is a "civil contract"' for purposes of solemnization, and in that sense is purely statutory.' 2 However, New York, like the majority of states, considers marriage a status or institution, 13 and thus legislation concerning marriage is not affected by the New York constitutional prohibition against impairment of contract.1 4 If legislation concerning marriage is not constitutionally prohibited as an impairment of contract, what of retroactive application of divorce legislation? Since a divorce statute is not penal in nature, retroactive application will not 7. 24 L. Ed. at 1110. 8. 125 U.S. 190 (1888). 9. Id. at 214. (Emphasis added.) 10. See H. Foster & D. Freed, supra note 1, at § 1:2; 1 J. Bishop, Marriage, Divorce and Separation § 1480 (1891). See also Milwaukee County v. M.E. White Co., 296 U.S. 269 (1935); Home Bldg. Loan Ass'n v. Blaisdell, 290 U.S. 298 (1934); Baker v. Kilgore, 145 U.S. 487 (1892); Tipping v. Tipping, 82 F.2d 828 (D.C. Cir. 1936); Meister v. Moore, 96 U.S. 76 (1878). 11. N.Y. Dom. Rel. Law § 10 (1964). See also cases cited in supra note 3. 12. Burtis v. Burtis, 1 Hopk. Ch. 557 (N.Y. 1825); Wood v. Wood, 2 Paige 108 (N.Y. 1830). 13. Fearon v. Treanor, 272 N.Y. 268, 5 N.E. 815 (1936); Risk v. Risk, 169 Misc. 287, 7 N.Y.S.2d 418 (Sup. Ct. 1938). 14. Contra, Clark v. Clark, 10 N.H. 380, 34 Am. Dec. 165 (1839); Greenlaw v. Greenlaw, 12 N.H. 200 (1837). Accord, Cavanaugh v. Valentine, 181 Misc. 48, 41 N.Y.S.2d 896 (Sup. Ct. 1934). BUFFALO LAW REVIEW be subject to ex post facto constitutional prohibitions.'" Further, there is no deprivation of life, liberty or property without due process of law, since marriage is purely a domestic relationship where there are no vested property rights involved. 16 III. THE HiSTORY OF ADULTERY AS A GROUND FOR DIvORci IN NEW Youc Adultery had been the sole ground for divorce in New York from 1787 to 1967. Until 1879 the guilty party in a divorce action was forbidden to remarry, but the law was then relaxed so as to permit remarriage if the court modified the decree. 17 Despite changing social conditions, New York was adamant in returning adultery as its sole ground for divorce.' 8 As a result, a strange development took place concerning the termination of the marital relationship. The function served by additional grounds for divorce in other jurisdictions was partially achieved by different modes in New York. For example, New York courts indirectly encouraged migratory divorces by a reluctance to permit collateral attacks upon New Yorkers' migratory divorce decrees.' Also, the ease with which one could obtain an annulment, especially on the ground of fraud,20 made this procedure a much used2 ' "substitute" ground for divorce in New York. In addition, "since over ninety percent of New York divorces are uncontested and are usually heard by referees, there is no ironclad assurance that New York divorces in fact rest upon a real, as distinguished from a simulated or imaginary, adultery." 22 Thus, in the past courts liberally enforced the rules governing annulment and separation to offset the inequities of a single ground divorce rule.23 This further produced an attitude that where the marriage was no longer viable, and conciliation was impossible, most judges have been disposed to grant whatever remedy was available to facilitate the termination of the de jure marital status where such status no longer existed de facto.24 15. Maynard v. Hill, 125 U.S. 190 (1888); Leon v. Torruella, 99 F.2d 851 (1st Cir. 1938); Tipping v. Tipping, 82 F.2d 828 (D.C. Cir. 1936). 16. Maynard v. Hill, 125 U.S. 190 (1888); Arnett v. Reade, 220 U.S. 311 (1911). 17. [18791 N.Y. Sess. Laws ch. 321. 18. See N. Blake, The Road to Reno ch. 6 (1962); P. Jacobson, American Marriage and Divorce 112-18 (1959). 19. See, e.g., Matter of Rhinelander, 290 N.Y. 31, 47 N.E.2d 681 (1943). 20. See Note, Annulments for Fraud-New Yorlk's Answer to Reno? 48 Colum. L. Rev. 900 (1948). See also P.
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