Eager, J. P.
There is presented on these appeals the common question of law whether subdivision (5) of section 170 of the Domestic Relations Law should be applied retroactively to authorize a divorce on the basis of a living apart of the parties pursuant to the terms of a judgment of separation rendered prior to the effective date of the Divorce Reform Law.
[403] In Gleason, the parties, married in 1936, entered into an agreement of separation on June 16, 1954, and, thereafter, on June 22, 1954, a judgment of separation was rendered and entered in favor of the wife and against the husband on the ground of abandonment and nonsupport. The judgment approved, ratified and confirmed the separation agreement. The husband brought this present action of divorce in October, 1968, alleging that two years had elapsed since the said judgment of separation was entered; that the parties had lived separate and apart since the rendition of the judgment; and that the husband has in all respects complied with the terms and conditions of the judgment. The wife, as a defendant in this divorce action, moved to dismiss the complaint for insufficiency and on the ground of validity as a matter of law of certain defenses, and the plaintiff husband cross-moved to strike certain defenses in the wife’s answer, including her allegations that subdivision (5) of section 170 was not constitutionally and legally applicable as a basis for the action. Special Term denied the wife’s motion and granted the husband’s cross motion, and the wife appeals.
In Goldstein, the parties were married in 1944 and a judgment of separation was rendered on May 17, 1960 in favor of the wife, decreeing separation on the ground of the husband’s failure and refusal to support the wife and the children of the marriage. In September, 1968, the husband brought this action for divorce, alleging that the plaintiff and defendant had lived apart continuously since the rendition of said judgment of separation and that the plaintiff has substantially performed all of the terms and conditions of said judgment. On the motion of the wife, the defendant in this divorce action, Special Term has rendered an order dismissing the complaint and the plaintiff husband appeals.
Thus, in these two cases, we have inconsistent decisions on the question of whether a decree of separation, rendered prior to the effective date of the Divorce Reform Law, may be converted into a judgment of absolute divorce on the basis of the living apart of the parties pursuant to such decree. In fact, the conflicting reasoning of the Justices at Special Term in these cases is merely representative of the divergent views expressed at nisi prius by the courts throughout the State.
The pertinent statute (Domestic Relations Law, § 170) reads:
‘ ‘ An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds:
[404] “ (5) The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of two years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.”
Although, as literally read, the statute in its general wording could be understood to apply retroactively in the cases of pre-existing judgments of separation, we conclude that such a construction is neither required nor authorized.* ‘ ‘ Even where the words are so general and broad as in their literal sense to comprehend existing cases, they must yet be construed as applicable only to such as may thereafter arise, unless the intention to embrace all is plainly and unequivocally expressed, and if all the language of a law can be satisfied by giving it a prospective operation only, it should not apply retrospectively.” (McKinney’s Cons. Laws of N. Y., Book 1, Statutes, § 51, pp. 67-71.) In accordance with the general rule, this statute should ‘ ‘ not be given a retroactive effect when it is capable of any other construction.” (Walker v. Walker, 155 N. Y. 77, 81.)
The legislative intent controls as to whether the statute is to be given a retroactive application; “ ‘ words ought to be made subservient to the intent, not contrary to it.’ ” (Matter of Young v. Gerosa, 11 A D 2d 67, 74.) “ It is a settled rule of statutory construction that the provisions of a statute will not be applied retrospectively where they are capable of any other construction unless the intent of the Legislature to the contrary clearly appears (New York & Oswego Midland R. R. Co. v. Van Horn, 57 N. Y. 473, 477; Walker v. Walker, 155 N. Y. 77, 81).” (Waddey v. Waddey, 290 N. Y. 251, 254.)
The words not being decisive on the question of legislative intent, we may review and consider legislative history and documents, but, here, the available data, as reviewed in the decisions and law notes, is confusing and indecisive'. (See, e.g., Zientara v. Zientara, 59 Misc 2d 344, revd. 32 A D 2d 822; Yoli v. Yoli, 55 Misc 2d 416; also, the Conversion Ground for Divorce in New York by Henry Foster, Jr. and Doris Freed, N. Y. L. J., April 30, May 1 and May 2, 1969.) Certainly, we may not arrive at a conclusion on the basis of speculation as to the reasons why the 1968 Legislature did not act upon proposed [405] legislation which would have expressly limited the application of subdivision (5) to a judgment or decree of separation existing on or after iSeptember 1,1966. Legislative inaction is but a ‘ ‘ weak reed upon which to lean in determining legislative intent.” (Flanagan v. Mt. Eden Gen. Hosp., 24 N Y 2d 427, 433.) In any event, it is the legislative intent of 1966 rather than the intent of the Legislature in 1968 that should control the determination here. (See Abelson v. Abelson, 59 Misc 2d 172; Zientara v. Zientara, supra; cf. Schacht v. Schacht, 32 AD 2d 201.)
Where there is ambiguity in a particular legislative enactment and in the recorded legislative data appertaining thereto, a reference to the legislative policy in relation to the subject matter of the statute may be helpful in determining legislative intent. Where a statute has long expressed the legislative policy in a particular area, it may be assumed that a substantial amendment of its terms, where representing a change in such policy, was intended to be confined to a wholly prospective operation. In this connection, we know that, as a matter of settled public policy, the State looks with favor upon the continuance of the marriage relation and we know that the legislative policy, long adhered to, was to confine the granting of an absolute divorce to the one ground of adultery. It was considered in the public interest not to permit the severing of the marital ties on the grounds of desertion, cruelty or incompatibility. (See 16 N. Y. Jur., Domestic Relations, § 909.) Thus, the 1966 statute represents a drastic change in legislative policy in the matter of divorce and, therefore, there is every reason for regarding it as coming within the general rule that statutes shall not operate retroactively unless the wording thereof expressly so requires.
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Eager, J. P.
There is presented on these appeals the common question of law whether subdivision (5) of section 170 of the Domestic Relations Law should be applied retroactively to authorize a divorce on the basis of a living apart of the parties pursuant to the terms of a judgment of separation rendered prior to the effective date of the Divorce Reform Law.
[403] In Gleason, the parties, married in 1936, entered into an agreement of separation on June 16, 1954, and, thereafter, on June 22, 1954, a judgment of separation was rendered and entered in favor of the wife and against the husband on the ground of abandonment and nonsupport. The judgment approved, ratified and confirmed the separation agreement. The husband brought this present action of divorce in October, 1968, alleging that two years had elapsed since the said judgment of separation was entered; that the parties had lived separate and apart since the rendition of the judgment; and that the husband has in all respects complied with the terms and conditions of the judgment. The wife, as a defendant in this divorce action, moved to dismiss the complaint for insufficiency and on the ground of validity as a matter of law of certain defenses, and the plaintiff husband cross-moved to strike certain defenses in the wife’s answer, including her allegations that subdivision (5) of section 170 was not constitutionally and legally applicable as a basis for the action. Special Term denied the wife’s motion and granted the husband’s cross motion, and the wife appeals.
In Goldstein, the parties were married in 1944 and a judgment of separation was rendered on May 17, 1960 in favor of the wife, decreeing separation on the ground of the husband’s failure and refusal to support the wife and the children of the marriage. In September, 1968, the husband brought this action for divorce, alleging that the plaintiff and defendant had lived apart continuously since the rendition of said judgment of separation and that the plaintiff has substantially performed all of the terms and conditions of said judgment. On the motion of the wife, the defendant in this divorce action, Special Term has rendered an order dismissing the complaint and the plaintiff husband appeals.
Thus, in these two cases, we have inconsistent decisions on the question of whether a decree of separation, rendered prior to the effective date of the Divorce Reform Law, may be converted into a judgment of absolute divorce on the basis of the living apart of the parties pursuant to such decree. In fact, the conflicting reasoning of the Justices at Special Term in these cases is merely representative of the divergent views expressed at nisi prius by the courts throughout the State.
The pertinent statute (Domestic Relations Law, § 170) reads:
‘ ‘ An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds:
[404] “ (5) The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of two years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.”
Although, as literally read, the statute in its general wording could be understood to apply retroactively in the cases of pre-existing judgments of separation, we conclude that such a construction is neither required nor authorized.* ‘ ‘ Even where the words are so general and broad as in their literal sense to comprehend existing cases, they must yet be construed as applicable only to such as may thereafter arise, unless the intention to embrace all is plainly and unequivocally expressed, and if all the language of a law can be satisfied by giving it a prospective operation only, it should not apply retrospectively.” (McKinney’s Cons. Laws of N. Y., Book 1, Statutes, § 51, pp. 67-71.) In accordance with the general rule, this statute should ‘ ‘ not be given a retroactive effect when it is capable of any other construction.” (Walker v. Walker, 155 N. Y. 77, 81.)
The legislative intent controls as to whether the statute is to be given a retroactive application; “ ‘ words ought to be made subservient to the intent, not contrary to it.’ ” (Matter of Young v. Gerosa, 11 A D 2d 67, 74.) “ It is a settled rule of statutory construction that the provisions of a statute will not be applied retrospectively where they are capable of any other construction unless the intent of the Legislature to the contrary clearly appears (New York & Oswego Midland R. R. Co. v. Van Horn, 57 N. Y. 473, 477; Walker v. Walker, 155 N. Y. 77, 81).” (Waddey v. Waddey, 290 N. Y. 251, 254.)
The words not being decisive on the question of legislative intent, we may review and consider legislative history and documents, but, here, the available data, as reviewed in the decisions and law notes, is confusing and indecisive'. (See, e.g., Zientara v. Zientara, 59 Misc 2d 344, revd. 32 A D 2d 822; Yoli v. Yoli, 55 Misc 2d 416; also, the Conversion Ground for Divorce in New York by Henry Foster, Jr. and Doris Freed, N. Y. L. J., April 30, May 1 and May 2, 1969.) Certainly, we may not arrive at a conclusion on the basis of speculation as to the reasons why the 1968 Legislature did not act upon proposed [405] legislation which would have expressly limited the application of subdivision (5) to a judgment or decree of separation existing on or after iSeptember 1,1966. Legislative inaction is but a ‘ ‘ weak reed upon which to lean in determining legislative intent.” (Flanagan v. Mt. Eden Gen. Hosp., 24 N Y 2d 427, 433.) In any event, it is the legislative intent of 1966 rather than the intent of the Legislature in 1968 that should control the determination here. (See Abelson v. Abelson, 59 Misc 2d 172; Zientara v. Zientara, supra; cf. Schacht v. Schacht, 32 AD 2d 201.)
Where there is ambiguity in a particular legislative enactment and in the recorded legislative data appertaining thereto, a reference to the legislative policy in relation to the subject matter of the statute may be helpful in determining legislative intent. Where a statute has long expressed the legislative policy in a particular area, it may be assumed that a substantial amendment of its terms, where representing a change in such policy, was intended to be confined to a wholly prospective operation. In this connection, we know that, as a matter of settled public policy, the State looks with favor upon the continuance of the marriage relation and we know that the legislative policy, long adhered to, was to confine the granting of an absolute divorce to the one ground of adultery. It was considered in the public interest not to permit the severing of the marital ties on the grounds of desertion, cruelty or incompatibility. (See 16 N. Y. Jur., Domestic Relations, § 909.) Thus, the 1966 statute represents a drastic change in legislative policy in the matter of divorce and, therefore, there is every reason for regarding it as coming within the general rule that statutes shall not operate retroactively unless the wording thereof expressly so requires.
It may be argued that it is contrary to the policy initiated by the new divorce law to arrive at a construction of subdivision (5) that provides no relief to the many spouses who have been living apart pursuant to separation judgments granted prior to the enactment of the new law. It is argued that in many such cases the marriage is clearly “ dead ” and that it is inequitable and discriminatory to deny a spouse to such a marriage the same rights which would follow in a case where there is a living apart pursuant to a judgment of separation rendered following the effective date of the new law. These arguments, however, as a ground for inferring a legislative intent to give subdivision (5) of section 170 a retroactive application appear unconvincing when it is noted that the Legislature has expressly provided that subdivision (6) of the same [406] section shall he limited to apply in the cases of separation agreements entered on or after August 1, 1966. “ If the policy underlying our divorce law is a sound one, it would require that both conversion grounds be treated the same as to retro-activity. Sociologically it is very difficult to defend a policy which gives recognition retroactively to 1 dead marriages ’ reflected by a separation decree but does not give similar recognition to 1 dead marriages ’ which have been formalized by separation agreements prior to August 1, 1966, and which completely ignores the. ‘ dead marriages ’ of parties who have been separated for years without the formality of either a written agreement or a judicial separation decree. The possibility of fraud may explain the exclusion of this latter type of ‘ dead marriages ’ but does not explain the limitation on ‘ dead marriages ’ represented by separation agreements.” (Zientara v. Zientara, 59 Misc 2d 344, 352, supra, revd. 32 A D 2d 822.)
Nor is there firm support for the argument that the statute should apply to pre-existing judgments of separation because it is remedial in its effect. Clearly, the statute is not remedial in the sense justifying an inference that the Legislature intended retroactive operation. (See Abelson v. Abelson, 59 Misc 2d 172, supra.) In creating the remedy of divorce in cases where such remedy did not theretofore exist, it permitted the destruction of rights arising out of a marital contract. ‘‘ Where the effect of the statute ‘ is to create a right of action ’ which did not previously exist, it is presumed that the statute was intended to have only prospective application. (See Jacobus v. Colgate, 217 N. Y. 235, 240-242.) ” (Longines-Wittnauer v. Barnes Reinecke, 15 N Y 2d 443, 453.) “ Statutes are generally to be construed as prospective only, even if remedial, where a new right is established (Lewittes & Sons v. Perlow, 254 App. Div. 94, 95; see, also, Feiber Realty Corp. v. Abel, 265 N. Y. 94.)
The statute in fact “ represents a far-reaching substantive change in the .law ” (Abelson v. Abelson, 59 Misc 2d 172, 180, supra). A judgment of separation, as well understood prior to the enactment of the. Divorce Reform Law, merely effected a modification and suspension in certain respects of the marriage relations, duties and obligations. Notwithstanding such a judgment, the marital contract continued in existence and the obligations incident thereto were binding upon the parties except as modified by the decree. The decree left open the opportunity for .reconciliation of the parties with a presumption of full marital relations and the re-establishment of the family [407] unit. Thus, a judgment of separation was in a sense an exemplification of the policy of this State, namely, that the marital relation, with the possibility of reconciliation of separated spouses, be continued as long as possible. (See 16 N. Y. Jur., Domestic Relations, § 823.)
Furthermore, many rights and obligations incident to the marital ties generally remain following a judgment of separation, including rights and obligations with reference to support and maintenance of a spouse, testamentary rights and restrictions including the right of a nonguilty spouse to elect against the last will and testament of the other, health insurance and pension rights, and rights under social security and immigration laws.
The Legislature is presumed to have known that, at the time of the enactment of the new law, there was in existence a great number of separation judgments which were then outstanding of record throughout the State. “ If it was the purpose and intent to attach so new and radical an effect to the many existing separation judgments, such a determination should come from the Legislature in clear and unmistakable language and not as the result of judicial construction on the basis of legislative silence. (McKinney’s, Statutes, §§ 74 and 153; Crawford, Construction of Statutes [1940], § 168, p. 268.) Furthermore * * * there is an inherent injustice, aside from constitutional considerations in grafting on existing separation judgments the unforeseen legal consequences which retroactive application of subdivision (5) of section 170 would necessarily entail. ‘ But considerable care should be exercised in order that a judgment secured before the enactment of the regulatory statute may not be impaired, destroyed or extended. In fact, no statute should receive a construction which will impair an existing judgment or enlarge or validate it in any way. As a result, in case of doubt, statutes affecting judgments should be regarded as applying to subsequently secured judgments only.’ (Crawford, supra, § 293, pp. 591-592).” (Abelson v. Abelson, 59 Misc 2d 172, 180-181, supra; see, also, 82 C. J. S., Statutes, § 416; Livingston v. Livingston, 173 N. Y. 377; Feiber Realty Corp. v. Abel, supra; Matter of Greene, 55 App. Div., 475, 482, affd. 166 N. Y. 485, 492.)
To apply subdivision (5) in the case of pre-existing judgments of separation amounts to the automatic broadening of the effect of such judgments and tends to destroy rights thereunder. Such retroactive application would confer authority upon the courts to dissolve a marriage without the consent of a nonguilty party who obtained the judgment of separation [408] and without proof of any breach of the marital contract on his part. It is questionable whether the State may constitutionally do this. (See Church v. Church, 58 Misc 2d 753; Shapiro v. Shapiro, 59 Misc 2d 412.)
Here, the Legislature, in enacting a new divorce law, was looking to the future. By the terms of its enactment, the maintenance of an action for divorce was authorized where the spouses have lived apart for a period of two years “ after the granting of ’ ’ the judgment of separation. These words import a future happening—the “granting” of a judgment of separation as an event which, occurring in the future, would serve as a condition precedent to the obtaining of a divorce on a ground of a mere living apart of the parties. The existence of a separation judgment was made an essential element of the “ cause ” or ground for a divorce; absent such a judgment (or a separation agreement), a living apart of spouses does not furnish a basis under the new law for a divorce. In providing for a law effective prospectively, we know that there was no intent on the part of the Legislature to legislate into existence divorces on the basis of prior events. Thus, we should apply the universal rule, that a “ statute declaring the causes for which divorces may be granted is ordinarily to be given a prospective operation only and does not authorize a divorce for a specified cause which occurred before the statute was enacted.” (27A C. J. S., Divorce, § 16; 19 C. J., Divorce, § 62, and many cases cited in the notes.)
If the Legislature intended that the new law should apply in the cases of existing judgments of separation, it could have easily so provided, and its failure to do so is significant. The grounds for a divorce of a husband and wife must be founded on statutory provision and the court may not implement the law by supplying a provision for a particular retroactive application not specified by the Legislature. Furthermore, the application of the law to pre-existing judgments of separation would require implementation to provide standards and guidelines under which a nonguilty spouse may be protected from or compensated for the loss of still existing marital rights (see Foster & Freed, N. Y. L. J., supra; Taplinger v. Taplinger, 55 Misc 2d 103; Bessowitz v. Bessowitz, N. Y. L. J., June 3, 1969, p. 19, col., 1; Di Russo v. Di Russo, 55 Misc 2d 839); and this, particularly, is a legislative function. In this connection, the ‘ ‘ court may not substitute itself for the Legislature merely because the Legislature has failed to act.” (Cf. Matter of Spillane v. Katz, 25 N Y 2d 34, 37.) In any event, here, the purpose of the new legislation may be fulfilled without giving [409] subdivision (5) the contended for retroactive effect and, thus, the law should not be construed to so operate.
In Gleason, the order, entered March 13, 1969, should be reversed, on the law, with costs and disbursements, and defendant’s motion to dismiss complaint granted. In Goldstein, the order, entered March 31, 1969, and the judgment, entered April 11, 1969, should be affirmed, with costs and disbursements.