Important New Decisions - August 16, 2012

Third Department Holds Divorce on Irretrievable Breakdown Grounds Is Not Another Action Pending for the Same Relief Where Other Action Is Based upon Cruel and Inhuman Treatment and Abandonment.

In Rinzler v Rinzler, --- N.Y.S.2d ----, 2012 WL 2849241 (N.Y.A.D. 3 Dept.), plaintiff commenced an action for divorce on the grounds of cruel and inhuman treatment and abandonment in 2009. Defendant answered and counterclaimed for spousal support arrears. In September 2010, after enactment of Domestic Relations Law § 170(7), plaintiff unsuccessfully sought defendant's consent to discontinue the action, presumably so that he could commence a new action based on the recently added no-fault ground. In March 2011, plaintiff commenced an action for divorce pursuant to Domestic Relations Law §170(7). Supreme Court granted Defendants motion to dismiss the action on the basis that there was "another action pending between the same parties for the same cause of action" (CPLR 3211[a][4] ).The Appellate Division reversed. It did not agree that the complaint in the second action alleged the same cause of action as the complaint in the first action. It observed that in determining whether two causes of action are the same, it considers "(1) [whether] both suits arise out of the same actionable wrong or series of wrongs[ ] and (2) as a practical matter, [whether] there [is] any good reason for two actions rather than one being brought in seeking the remedy". (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:15, at 29). Plaintiff's first complaint sought a divorce on the grounds of cruel and inhuman treatment and abandonment. To obtain a divorce on the ground of cruel and inhuman treatment, plaintiff was required to show that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.( Domestic Relations Law § 170[1] ). The other ground asserted by plaintiff in the first action required proof of the abandonment of the plaintiff by the defendant for a period of one or more years (Domestic Relations Law § 170[2] ). On the other hand, the complaint in the second action sought a no-fault divorce. Such relief requires a sworn declaration that the marriage was irretrievably broken for a period of at least six months (Domestic Relations Law § 170[7] ). In its view these causes of action were not the same. Turning to the second prong of the inquiry, as a practical matter, there was a good reason to allow plaintiff to maintain this action. As the Legislature noted, the intent of no-fault divorce was "to lessen the disputes that often arise between the parties and to mitigate the potential harm to them ... caused by the current process" Similarly, the Governor stated, in signing the legislation, that its intent was to "reduce litigation costs and ease the burden on the parties in what is inevitably a difficult and costly process.". Thus, allowing plaintiff to proceed on the cause of action for a no-fault divorce, which was not available to him at the time he commenced the first action, would not "unreasonably burden ... defendant with a series of suits emanating from a single wrong merely by basing each suit on a different theory of recovery". It rejected the defendant's contention that having previously commenced an action prior to the effective date of Domestic Relations Law § 170(7), plaintiff may not avail himself of the benefit of the no-fault provision by commencing a new action because it would contravene the Legislature's intent regarding the statute's effective date. Unlike the equitable distribution statute, which substantially expanded the economic rights of a spouse in a divorce the change created by Domestic Relations Law 170(7) simply provides another ground for obtaining a divorce . Thus, allowing plaintiff to maintain the new action for a no-fault divorce would not circumvent the Legislature's intent.