Wenderlich v. Wenderlich

34 A.D.2d 726, 311 N.Y.S.2d 797, 1970 N.Y. App. Div. LEXIS 5148

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 9, 1970
• Status: Published

Opinion

Judgment unanimously reversed on the law and facts, without costs, and a new trial granted. Memorandum: In this action for divorce on the ground of cruel and inhuman treatment, the court charged that subdivision (1) of section 170 of the Domestic Relations Law was prospective only, and any acts occurring before September 1, 1967, the effective date of the section, could not be considered as grounds for divorce. This instruction was erroneous. The section referred to should be given retroactive application since it is of a remedial nature, giving an additional remedy for an existing wrong. (Shielcrawt v. Moffett, 294 N. Y. 180, 189.) Further, the language of the statute indicates a retroactive effect. (Cf. Gleason v. Gleason, 26 N Y 2d 28.) While there was proof of acts of cruelty occurring before September 1, 1967 the jury was precluded by the Judge’s charge from considering these as a basis for its verdict. There was proof however that defendant struck the plaintiff the morning of September 1, 1967, but this was insufficient to establish the cause of action. In other words, an isolated act of violence, such as the above, does not constitute cruel and inhuman treatment sufficient to warrant a judgment of divorce. (Melville v. Melville, 29 A D 2d 970; Schapiro v. Schapiro, 27 A D 2d 667.) (Appeal from judgment of Steuben Trial Term in action for divorce.) Present — Goldman, P. J., Marsh, Gabrielli, Moule and Bastow, JJ.