Opinion
October 31, 1967
J. William Kepner for plaintiff.
In this action plaintiff seeks a judgment of divorce against the defendant pursuant to subdivision (2) of section 170 Dom. Rel. of the Domestic Relations Law, abandonment for two or more years. The defendant is in default, and a certificate of "no necessity for any conciliation conference" was issued by the Conciliation Commissioner on September 30, 1967. The plaintiff's proof has been heard by the court.
The question here involved is whether the plaintiff is required to wait an additional two years of abandonment beyond September 1, 1967, the effective date of the statute often referred to as "New York's new divorce law," to commence her action or to seek the relief that she asks in this action where there has been an abandonment for more than two years, and the abandonment is continuing on. More precisely, the question for determination by the court is whether subdivision (2) of section 170 Dom. Rel. of the Domestic Relations Law may be given retrospective effect, or must it be applied prospectively.
Though the statute provides no express answer to this fundamental question this court concludes that the plaintiff should not be required to wait another two years before seeking relief pursuant to this statute, and that the statute, subdivision (2) of section 170 Dom. Rel. of the Domestic Relations Law, should be construed as being retroactive. (See McKinney's Cons. Laws of N.Y., Book 1, Statutes, § 51 and cases cited.)
Judgment should be granted to plaintiff; the proposed findings of fact submitted by plaintiff are adopted by the court, and the order of the Family Court pertaining to the custody, support and maintenance of the infant children of the parties hereto should be continued, and any future matters pertaining thereto are referred to the Family Court of the State of New York to hear and determine.