Rubin v. Rubin

35 A.D.2d 460, 317 N.Y.S.2d 571, 1971 N.Y. App. Div. LEXIS 4924

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 14, 1971
• Status: Published

Opinions

Henry, J.

Plaintiff appeals from a Special Term judgment dismissing his complaint in an action for divorce brought pursuant to subdivision 5 of section 170 of the Domestic Relations Law wherein he alleges that a decree of separation was rendered in Supreme Court on January 27,1958 in favor of defendant herein, that the parties have since lived apart and that he has performed all the terms and conditions thereof. In a decision rendered prior to Gleason v. Gleason (26 N Y 2d 28) Special Term dismissed the complaint, holding that subdivision (5) of section 170 was not to be applied retroactively and that plaintiff had failed to show that he had substantially performed the terms of the separation decree requiring payment of alimony.

The retroactivity of subdivision (5) of section 170 of the Domestic Relations Law having been settled by Gleason v. Gleason (supra), there remains here only the issue of whether appellant substantially complied with the terms of the separation decree. This issue should be resolved in the light of the stated purposes of the no fault provisions of the law. ‘ ‘ Implicit in the statutory scheme is the legislative recognition that it is socially and morally undesirable to compel couples to a dead marriage to retain an illusory and deceptive status ” (Gleason v. Gleason, 26 N Y 2d 28, 35). Although appellant was delinquent in making the required alimony payments for several years, he complied therewith for a period of eight years prior to commencement of this action. It is apparent that his marriage is dead. The parties have lived apart for 12 years and there is no possibility of reconciliation. The wife testified: ‘ ‘ He made me sick * * * [he] aggravated me.” It would be contrary to the purposes of the law to deny a divorce to appellant because of his failure to make timely alimony payments eight years ago, especially where such failures have been cured or, at least, substantially cured. (Cf. Van Vort v. Van Vort, 62 Misc 2d 981.)

The judgment insofar as it dismisses the complaint should be reversed and judgment entered in favor of plaintiff dissolving the previously existing marriage between the parties, upon the ground that the parties have lived apart for a period of over two years after the granting of a judgment of separation, plaintiff having substantially performed all the terms and conditions thereof. In all other respects the judgment should be affirmed. Any application for counsel fees on this appeal should be made to Special Term. (Domestic Relations Law § 237, subd. [b]; § 240; Goshin v. Goshin, 30 A D 2d 555.)