Petition — Childs v. Appellate Division of the Supreme Court of New York, Second Judicial Department

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4 UCT 25 979

—ihieteee—neee IR CLERK

In THE mn

Supreme Court of the United States

October Term, 1979

vo. 89-676

Miscellaneous

THEODORE Q. CHILDS,

Petitioner,

against

APPELLATE DIVISION OF THE SUPREME COURT

OF THE STATE OF NEW YORK, SECOND JU-

DICIAL DEPARTMENT, MILTON MOLLEN, Pre-

siding Justice, and FRANK D. O'CONNOR, LEON D.

LAZER, FRANK A. GULOTTA and GUY J. MAN-

GANO, Justices of the Appellate Division of the Su-

preme Court of the State of New York, Second Ju-

dicial Department,

Respondents.

Motion for Leave to File Petition for a Writ of

Mandamus and Petition for a Writ of Mandamus.

THEODORE Q. CHILDS

Counsel for Petitioner (Pro Se)

150 Broadway

New York, N. Y. 10038

Of Counsel

Vincent J. DuNN

150 Broadway

New York, N. Y. 100388

ALBERT CHARLES GOUDVIS

1197 Pleasantville Road

Briarcliff Manor, N. Y. 01510

Table of Contents.

Page

Motion for Leave to File Petition for Writ of Man-

Ne oc acemmesentusensacsctnees 1

Petition for a Writ of Mandamus ...............................- 3

Nee ee aecenscecnencccnerncsecerns 4

Nee nc ssescenvncseepecnnanscencss 4

ES 5

Constitutional Provisions Involved ....................------------ 9)

Ne ea nesnannisccnsesecaces 7

Nee nnn re ccasecncneucsasencnenesns 8

ee ee ee eee ........................... 11

GES 25

APPENDIX:

Opinion and Order of the Supreme Court of the

United States in Childs v. Childs, No. 77-1653,

Neen ne ne sesancssvnsccecccnsecees 27

Decision and Order of the Appellate Division of the

Supreme Court of the State of New York, Sec-

ond Judicial Department, dated July 11, 1979,

A. D. 2d Sore mm. 2. ©. 2d $38 ....... 29

Order and Memorandum Decision of the Court of Ap-

peals, State of New York, dated October 9,

Nee cnc cnccencccncncee 48

il.

Page

Decision of The Court of Civil Appeals, State of Ala-

bama in Orr v. Orr, Civ. 1006, dated May 30,

1979, on remand from the Supreme Court of

Re Ie PE ec cceincdieetananees 49

CASES.

Adkins v. Children’s Hospital, 261 U. 8S. 525 (1923) 20

Ascione v. City of New York, 84 Mise. 2d 414, 377

N. Y. S. 2d 599 (1975), modified, Blyn v.

Bartlett, 50 A. D. 2d 442, 379 N. Y. S. 2d 616,

affirmed, 39 N. Y. 2d 349, 384 N. Y. S. 2d 99 18

Bright Homes, Inc., v. Wright, 8 N. Y. 2d 157, 203

} ee a Gg) eee hee Soe meee 19, 21, 22

Bueolo v. Adkins, 424 U. S. 641, 96 S. Ct. 1086 (1976) 24

Caban v. Mohammed, No. 77-6431, 440 U. S. , 99

eh ee, ge eA; : Rane nee 2

Childs v. Childs, No. 77-1653, March 19, 1979, 440

U. S. , oo S Ct. ae... 4. 5, 8, 10, 11, 12, 13,

16, 21, 23, 25

Childs v. Childs, A. D. 2, 419 N. Y. S. 2d 533 (July

IR, RA Meh ae eae OR 5, 8, 10, 13, 15, 19, 26

Clason Management Corp. v. Temporary State Hous-

ing Rent Commission, 29 Mise. 2d 258, 217

Bd We cs “I sp itcstesen decile edict acsainie 19

Deen v. Hickman, 359 U. S. 57, 79 S. Ct. 1 (1958) ...... 24

Erkenbach v. Erkenbach, 96 N. Y. 456 (1883) ............ 17

Ex parte State of Texas, 315 U. S. 8, 62 S. Ct. 418

h _, SgpneaNs een te fax nares veo earn mm MOU TCE CSO 24

iii.

Page

In re Adoption of Malpica-Orsini, 36 N. Y. 2d 568,

37 N. Y. S. 2d 511 (1975), appeal dismissed,

Orsini v. Blasi, 423 U. S. 1042, 96 S. Ct. 765

PEMD = ctsaias tte eliseionpstigpsctanicsaneiae thee hecneibicadtcamincnmectnetancictts 22

Kates v. Lefkowitz, 28 Mise. 2d 210, 216 N. Y. S. 2d

SO IED ~ censor haditnehcniar eel Oita co 19

Kessel v. D'Amato, 97 Mise. 2d 675, 412 N. Y. S. 2d

TI I been eS ee 19

Kuhn v. Curran, 184 Mise. 788, 56 N. Y. S. 2d 737

LAR ERIRE LO TION AID Fie RM CEI Tete ENT CoRR 19

Leffler v. Leffler, 50 A. D. 2d 93, 376 N. Y. S. 2d 176

(1975), affirmed, 40 N. Y. 2d 1036, 391 N. Y. S.

SN OU CREE Go oot ea oe 17

Martin v. Hunter’s Lessee, 1 Wheat. (14 U. 8.) 304,

Be Bi ee I vata cca tai ctnieadaanetindes 23, 24

Matter of Palmer v. Spaulding, 299 N. Y. 368, 87 N.

BscMN MU ND site etcones kiaienniadcaiasence dees 22

Mertz v. Mertz, 271 N. Y. 466, 3 N. E. 2d 597 (1936) 22

NAACP v. State of Alabama ez rel. Flowers, 377

U. 5. 200, OE B: Ct. 19S (1968) «...:.................. 23

Northrup v. Northruy, 43 N. Y. 2d 566, 402 N. Y. S.

ee I iste aaa 17

Orr v. Orr, No. 77-1119, 440 U. S. , OB. ct.

oe |. | Rene eee 8, 11, 12, 15, 16, 17, 21

Orr v. Orr, Alabama Court of Civil Appeals, May 30,

a Ratt re Re ae 16, 17

Orsini v. Blasi, 423 U. S. 1042 (1976), 96 S. Ct. 765 22

iV.

Page

People v. Bielecki, 56 Mise. 2d 730, 291 N. Y. 8.

Beh TET CEDGDD oesincesstensneenniaeenae 18

People v. Billi, 90 Mise. 2d 568, 395 N. Y. S. 2d 353

CREE) ancnnhicncsccemnieenenioianaaeae 22

People v. Caswell-Massey Co., 7 A. D. 2d 727, 180

N. ¥. & 28 Gi GP 2... eee 22

People v. Friedman, 302 N. Y. 75, 96 N. E. 2d 184

CTD recriesreinsisnecoorenceenabeipalaniaiidiaeneneigee eames 18

People v. Kupprat, 6 N. Y. 2d 88, 188 N. Y. S. 2d

483 (159) oli eee 18

People v. Morton, 156 N. Y. 136, 50 N. E. 791 (1898) .. 18

People v. Scher, 76 Mise. 2d 71, 349 N. Y. S. 2d

S02 (1913) ......... eee 19

People v. Stuyvesant Insurance Co., 98 Mise. 2d 210,

413 N. Y. 8. 2 S88 (1979) 22

People v. System Properties, Inc., 2 N. Y. 2d 330,

160 N. Y. &. 2a Se (29 19, 22

Rathbun v. United States, 355 U. S. 109, 78 S. Ct.

BG] (CERBT) ecco 20

Tormey v. LaGuardia, 278 N. Y. 450, 17 N. E. 2d 126

(1938), motion denied, 279 N. Y. 780, 18 N. E.

20 O08 ee 22

Touche Ross & Co. v. Reddington, June 18, 1979, No.

78-309 U. S. , 9 3. Ce 2879 ............ 16

Trade Accessories v. Bellet, 184 Mise. 962, 55 N. Y.

S. 2d 361 (1945), appeal dismissed, 295 N. Y.

763, 66 NN. BE. 38.99 Une 18

U. S. v. Carolene Products Co., 304 U. S. 144, 58

S. Ct. 778 (3908) co ee 18

STATUTES.

Page

Section 237, subdivision (b), of the New York Do-

mestic Relations Law ............ 7, 8, 9, 10, 11, 12, 13, 14,

15, 17, 19, 22, 26

Title 28, U.S.C.A., Section 1651 (a) .....00..00........ 3, 4, 7

CONSTITUTIONS.

Constitution of the United States, Fourteenth

ean 5, 10, 12

Constitution of the United States, Article I, Sec-

ER ERECTA MS ESR Se ea TE 6, 17, 18

Constitution of the United States, Article ITI, Sec-

Biante STE Se dR Se Rae en 6, 18

Constitution of the United States, Article VI, Clause

(SEER SARS Sie CT 25

Constitution of the State of New York, Article ITI,

as 6, 17, 18

Constitution of the State of New York, Article VI,

Section 5, subdivision (a)

Constitution of the State of New York, Article VI,

Section 7, subdivision (a) ..................c.cccccccsessee 7, 18

MISCELLANEOUS.

Gilbert & Sullivan, The Mikado, Act IT (1885) .......... 21

Webster’s Third International Dictionary of the

English Language, Unabridged (1976) .............. 20

IN THE

Supreme Court of the United States

October Term, 1979.

No. ;

Miscellaneous

THEODORE Q. CHILDs,

Petitioner,

against

APPELLATE DivisioN OF THE SupREME CourT OF THE STATE

OF New York, Seconp JvupIcian DEPARTMENT, MILTON

MotteNn, Presiding Justice, and Franx D. O’Connor,

Leon D. Lazer, Frank A. Guiotta and Guy J. Man-

GANO, Justices of the Appellate Division of the Supreme

Court of the State of New York, Second Judicial De-

partment,

Respondents.

——>—

Motion for Leave to File Petition for a Writ of

Mandamus.

The Petitioner respectfully moves this Court for leave

to file the Petition for a Writ of Mandamus, hereto an-

nexed, and further moves that an Order and Rule be

entered and issued directing the Appellate Division of

the Supreme Court of the State of New York, Second

Judicial Department, Milton Mollen, Presiding Justice,

and Frank D. O’Connor, Leon D. Lazer, Frank A. Gulotta

and Guy J. Mangano, Justices of the Appellate Division

of the Supreme Court of the State of New York, Second

Judicial Department, to show cause why a Writ of Man-

damus should not be issued against them in accordance

with the prayer of said Petition, and why the Petitioner

should not have such other and further relief in the

premises as may be just and meet. |

Respectfully submitted,

THEODORE Q. CHILDS,

Counsel for Petitioner (Pro Se),

150 Broadway,

New York, New York 10038.

atid

IN THE

SUPREME COURT OF THE UNITED STATES,

October Term, 1979.

No. P

Miscellaneous

THEODORE Q. CHILDs,

Petitioner,

against

APPELLATE DivisioN oF THE SuPREME CouRT OF THE STATE

oF New York, Seconp Jupictan DEPARTMENT, Mitton

Motien, Presiding Justice, and Frank D. O’Connor,

Leon D. Lazer, Frank A. Gutorta and Guy J. May-

GANO, Justices of the Appellate Division of the Supreme

Court of the State of New York, Second Judicial De-

partment,

Respondents.

—_— ~~

Petition for a Writ of Mandamus.

Petitioner prays that a Writ of Mandamus issue under

Section 1651(a) of the Judicial Code (28 U.S.C.A., Sec.

tion 1651[a]) to the Appellate Division of the Supreme

Court of the State of New York, Second Judicial De-

partment, Milton Mollen, Presiding Justice, and Frank

D. O’Connor, Leon D. Lazer, Frank A. Gulotta and Guy

J. Mangano, Justices of the Appellate Division of the

Supreme Court of the State of New York, Second Judi-

cial Department, directing the said Appellate Division

of the Supreme Court of the State of New York and

the said justices thereof to comply with the mandate of

this Court issued on April 17, 1979 in Childs v. Childs,

No. 77-1653, March 19, 1979, 440 U. S. » 99 S. Ct.

1488, appended infra at p. 27, and directing the said

Appellate Division of the Supreme Court of the State

of New York, Second Judicial Department, and the afore-

said justices thereof, to vacate its Decision and Order

dated July 11, 1979 and to enter an order in conformity

with the aforesaid mandate of this Court, thereby pre-

venting an evasion and annulment of the judgment and

opinion of this Court.

Opinions Involved.

Opinion and Order of the Supreme Court of the United

States in Childs v. Childs, No. 77-1653, March 19, 1979,

440 U. S. , 99'S. Ct. 1488, appended infra at p. 27.

The Decision and Order of the Appellate Division of

the Supreme Court of the State of New York, Second

Judicial Department dated July 11, 1979 A. D. 2d

» 419 N. Y. S. 2d 533, appended infra at p. 29.

Order and Memorandum Opinion of the Court of Ap-

peals of the State of New York dated October 9, 1979,

N.Y. , appended infra at p. 48.

Jurisdiction.

The jurisdiction of this Court is invoked under 28

U.S.C.A. Section 1651(a) on the ground that the Decision

and Order of the Appellate Division of the Supreme

Court of the State of New York, Second Judicial Depart-

ment, dated July 11, 1979, and of the aforesaid justices

thereof, violated the mandate of the Supreme Court of

the United States issued on April 17, 1979 in Childs v.

Childs, No. 77-1653, which remanded the ease “for further

consideration in light of Orr v. Orr, 440 U. S.

(1979) ;” and evaded and annulled the said judgment and

opinion of this Court.

Question Presented.

Whether the Appellate Division of the Supreme Court

of the State of New York, Second Judicial Department,

and Milton Mollen, Presiding Justice, and Frank D.

O’Connor, Leon D. Lazer, Frank A. Gulotta and Guy J.

Mangano, Justices thereof, violated the mandate of the

Supreme Court of the United States issued on April 17,

1979 in Childs v. Childs, No. 77-1653, by its Decision and

Order dated July 11, 1979 determining Section 237, sub-

division (b), of the New York Domestic Relations Law

to be constitutional under the Equal Protection Clause of

the Constitution of the United States by engaging in

judicial legislation by substituting “spouse” for “wife”

and “spouse” for “husband” in the aforementioned stat-

ute and, thereafter, remitting the matter to the trial

court in the State of New York for hearing de novo.

Constitutional Provisions Involved.

The Fourteenth Amendment to the Constitution of the

United States which provides:

Section 1. “* * * [NJor shall any State deprive

any person of life, liberty, or property, without

due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.”

Article I. Section 1 of the Constitution of the United

States which provides:

“All legislative Powers herein granted shall be

vested in a Congress of the United Siates, * * *.”

Article III, Section 1 of the Constitution of the United

States which provides:

“The judicial Power of the United States shall

be vested in one Supreme Court, and in such in-

ferior Courts as the Congress may from time to

time ordain and establish.”

Article III, Section 1 of the Constitution of the State

of New York which provides:

“The legislative power of this State shall be

vested in the Senate and Assembly.”

Article VI, Section 5, subdivision (a), of the Consti-

tution of the State of New York which provides:

“Upon an appeal from a judgment or an order,

any appellate court to which the appeal is taken

which is authorized to review such judgment or

order may reverse or affirm, wholly or in part, or

may modify the judgment or order appealed from,

and each interlocutory judgment or intermediate or

other order which it is authorized to review, and

as to any or all of the parties. It shall thereupon

render judgment of affirmance, judgment of re-

versal and final judgment upon the right of any or

all of the parties, or judgment of modification

thereon according to law, except where it may be

necessary or proper to grant a new trial or hear-

ing, when it may grant a new trial or hearing.”

Article VI, Section 7, subdivision (a) of the Constitu-

tion of the State of New York which provides:

_ “The supreme court shall have general original

jurisdiction in law and equity and the appellate

Jurisdiction herein provided. * * *”

Statutes Involved.

Section 237, subdivision (b), of the New York Domestic

Relations Law, which reads as follows:

“Upon any application to annul or modify an

order or judgment for alimony or for custody,

visitation, or maintenance of a child, made as in

section two hundred thirty-six or section two hun-

dred forty provided, or upon any application by

writ of habeas corpus or by petition and order to

show cause concerning custody, visitation or main-

tenance of a child, the court may direct the husband

or father to pay such sum or sums of money for

the prosecution or the defense of the application

or proceeding by the wife or mother as, in the

court’s discretion, justice requires, having regard

to the circumstances of the case and of the respec-

tive parties. With respect to any such application

or proceeding, such direction may only be made in

the order or judgment by which the particular ap-

plication or proceeding is finally determined.”

Title 28, U.S.C.A., Section 1651 provides, in part:

“(a) The Supreme Court... may issue all writs

necessary or appropriate in aid of their respective

jurisdictions and agreeable to the usages and prin-

ciples of law. . .”

Statement of the Case.

On March 19, 1979, this Court, in Childs v. Childs, No.

77-1653, supra, entered the following order:

“The petition for a writ of certiorari is granted.

The judgment is vacated and the case is remanded

to the Appellate Division, Supreme Court of New

York, Second Judicial Department for further con-

sideration in light of Orr v. Orr, 440 U.S.

(1979). Mr. Justice Stewart dissents.”

This Court in Orr v. Orr, No. 77-1119, March 5, 1979,

440 U.S. , 99 S. Ct. 1102, in construing the Alabama

statutory scheme which imposed alimony obligations on

husbands but not on wives determined that statutory

scheme to be unconstitutional under the Equal Protec-

tion Clause of the Constitution of the United States. See-

tion 237, subdivision (b), of the New York Domestic Re-

lations Law has an identical statutory scheme in that it

imposes obligations to pay counsel fees on husbands or

fathers, and not on wives or mothers, and in the light of

this Court’s decision in Orr v. Orr, the New York statu-

tory scheme was likewise unconstitutional under the

Equal Protection Clause of the Constitution of the United

States.

On remand by this Court to the Appellate Division of

the Supreme Court of New York, Second Judicial De-

partment, “for further consideration in light of Orr v.

Orr,” the said Appellate Division in its Decision and

Order dated July 11, 1979, appended infra at p. 29, ig-

nored both the determination and the Mandate of this

Court. The State Appellate Court initially concluded

that New York’s statutory scheme under Section 237, sub-

division (b), of the Domestic Relations Law was uncon-

stitutional as presently drafted, but then blithely pro-

ceeded through a process designated as reading the stat-

ute expansively to construe said Section 237, subdivision

(b), to be constitutional by substituting the word “spouse”

for “wife” since the said Appellate Court deemed the

statute under this construction process “to authorize coun-

sel fees to either spouse on a gender-neutral, needs-

basis only.” As a result of its final determination that

Section 237, subdivision (b), of the New York Domestic

Relations Law was constitutional, the said Appellate Di-

vision remitted the entire matter to the New York trial

court for a hearing de novo. In so construing, the said

Appellate Court ignored the most basie rule of construc-

tion; it ignored the Doctrine of Separation of Powers

and engaged in pure and simple judicial legislation which

is clearly impermissible.

The said Appellate Division incorporated in its Deci-

sion and Order dated July 11, 1979, appended infra at

p- 29, not only the question of the unconstitutionality

of Section 237, subdivision (b), of the New York Domestic

Relations Law which was remanded by this Court, but

also an appeal from an order in an enforcement pro-

ceeding under Section 244 of the New York Domestic

Relations Law which was, and is not, before this Court.

The enforcement proceeding under Section 244 of the

New York Domestic Relations Law was instituted and

continued after the filing of the Petition for a Writ of

Certiorari to this Court by your Petitioner on May 19,

1978, since there was no stay issued by this Court or any

other Court in effect. Upon the granting of the enforce-

ment order, the Petitioner filed an appropriate appeal to

the Appellate Division of the Supreme Court of the State

of New York, Second Judicial Department, and filed and

obtained a stay by filing the requisite bond. The said

enforcement order was based on the judgment of the

Appellate Division of the Supreme Court of the State

of New York, Seeond Judicial Department, dated De-

cember 27, 1977 which was vacated by this Court in

Childs v. Childs, No. 77-1653, supra. Accordingly, since

the underlying order on which the enforcement order was

based was vacated, the said Appellate Division should

have likewise vacated the enforcement order and dismissed

the appeal; however, the said Appellate Division chose to

combine both the remand from this Court and the appeal in

the enforcement proceeding in order to provide it with the

opportunity to read the “statute expansively, or in tandem

with other statutes” so as to sustain its improper de-

termination of constitutionality of Section 237, subdivision

(b), of the New York Domestic Relations Law. Childs v.

Childs, A. D. 2d » 419 N. Y. S. 2d 533, ap-

pended infra at p. 29.

The questions éonsidered by the Appellate Division,

Second Department in the Decision and Order dated

July 11, 1979 concerning the application and constitution-

ality of Section 238 and 244 of the New York Domestic

Relations Law were not before this Court in Childs v.

Childs, No. 77-1653, supra, and are not before this Court

in this Petition for a Writ of Mandamus since they are

entirely irrelevant to this matter.

On August 16, 1979, the Petitioner herein filed timely

a Cross Notice of Appeal appealing as of right to the

Court of Appeals of the State of New York from the

aforesaid order of the Appellate Division of the Supreme

Court of the State of New York, Second Judicial Depart-

ment, dated July 11, 1979, appended infra at p. 29,

relying upon the construction of the Equal Protection

Clause of Section 1 of the Fourteenth Amendment to the

Constitution of the United States as applied to the said

Appellate Court’s determination that Section 237, sub-

division (b), of the New York Domestic Relations Law

was constitutional, in contravention of the mandate of

this Court.

By Order of the Court of Appeals of the State of New

York dated October 9, 1976, appended infra at p. 48,

the cross-appeal of the Petitioner herein was dismissed

by the Court sua sponte “upon the ground that the order

appealed from does not finally determine the action within

the meaning of the Constitution.”

The said Appellate Division disregarded the mandate

of this Court by failing to determine Section 237, sub-

division (b), of the New York Domestic Relations Law

to be unconstitutional and by remitting the matter to the

trial court for a hearing de novo; thereby putting the

Petitioner herein on a judicial merry-go-round of further

trial proceedings wherein the fundamental constitutional

issue cannot be pursued and determined in the courts of

the State of New York.

The New York State courts cannot reverse and remit

causes for further state court proceedings irrespective

of the Mandate of the Supreme Court of the United

States.

Reasons for Granting Writ. a

In Childs v. Childs, No. 77-1653, appended infra at p.

27, this Court vacated the judgment below and_ re-

manded the case to “the Appellate Division, Supreme

Court of New York, Second Judicial Department, for

further consideration in light of Orr v. Orr, 440 U. S.

(1979). This Court, in Orr v. Orr, supra, held

that the Alabama statutory scheme which imposed an

obligation on husbands but not on wives to pay alimony

was Violative of the Equal Protection Clause of the Four-

teenth Amendment to the Constitution of the United

States. The relevant Alabama statute which was deter-

mined to be unconstitutional in Orr v. Orr, supra, pro-

vided only that alimony could be paid to the wife out of

the husband’s estate. There was no authority in the

statute for awarding alimony against the wife in favor

of the husband.

In holding the Alabama statute unconstitutional under

the Equal Protection Clause of the Fourteenth Amend-

ment to the Constitution of the United States, where only

wives could receive alimony payments from husbands,

this Court states in Orr v. Orr, 440 U. S. , 99 S.

Ct. 1102:

“Thus, even statutes purportedly designed to

compensate for and ameliorate the effects of past

discrimination must be carefully tailored. Where,

as here, the State’s compensatory and amelio-

rative purposes are as well served by a gender-

neutral classification as one that gender-classifies

and therefore carries with it the baggage of sexual

stereotypes, the State cannot be permitted to clas-

sify on the basis of sex. And this is doubly so

where the choice made by the State appears to re-

dound—if only indireectly—to the benefit of those

without need for special solicitude.” Pages 1113-14.

On remand by this Court of Childs v. Childs, No. 77-

1653, appended infra at p. 27, the Appellate Division

of the Supreme Court of the State of New York, Second

Judicial Department, and the justices thereof, refused to

follow the mandate of this Court issued on April 17, 1979

which compelled consideration of the ease in light of the

determination of this Court in Orr v. Orr. Said Appel-

late Division initially determined, in light of Orr v. Orr,

Section 237, subdivision (b), of the New York Domestie

Relations Law to be irrevocably unconstitutional. Childs

v. Childs, July 11, 1979 A. D. 2d . 419 N. Y.

S. 2d 533, appended infra at p. 29. The said Appellate

Division then proceeded to construe Section 237, subdivi-

sion (b), of the New York Domestic Relations Law to be

constitutional by an “expansive reading” of the statute,

since the said Appellate Court then deemed the statute

“to authorize counsel fees on the gender-neutral, needs-

basis only.” The said Appellate Court held that Section

237, subdivision (b), of the New York Domestic Relations

Law can be constitutionally read by substituting the word

“spouse” for “wife.” In so construing Section 237, sub-

division (b), of the New York Domestie Relations Law

as being constitutional, the said Appellate Court stated:

“Such a construction is consistent with the tra-

ditional rule that where a statute has been found

to violate the equal protection clause, courts will

traditionally read into it the improperly excluded

class (see, e. g., Califano v. Westcott, U.S.

(47 U.S.L.W. 4817, 4821) (aid to dependent

children benefits); Califano v. Goldfarb, 430 U. 8.

199 (Social Security Act survivorship benefits) ;

Weinberger v. Wiesenfeld, 420 U. S. 636, supra

(same); Irontiero v. Richardson, 411 U. S. 677,

supra (armed forees fringe benefits); Levy v.

Louisiana, 391 U. S. 68 (wrongful death actions) ;

Matter of Passante v. Walden Printing Co., 53

A. PD. 2d 8, 13 (worker’s compensation survivor-

ship benefits).” 419 N. Y. S. 2d at 531, appended

infra, at p. 29.

In setting forth the so-called “traditional rule” with cita-

tions, the Court below is clearly trying to justify its pro-

hibited judicial legislation and is ignoring the mandate

of this Court. None of the cited cases stand for the

principle that a court may usurp the funetions of the

legislature or that this Court usurped the functions of

the legislature.

Likewise, the Appellate Court below cites Section 238

of the New York Domestie Relations Law, as presently

worded, which “presently allows the trial court to require

either party to pay the expenses of the other, including

counsel fees,” and then states that by reading this stat-

ute, “in tandem” with Section 237, subdivision (b), See-

tion 237, subdivision (b), ean be “constitutionally read

as substituting the word ‘spouse’ for ‘wife.’ " In fact such

substitution does not suffice to make Section 237, sub-

division (b), of the New York Domestic Relations Law

gender-neutral, even if permissible, for no similar substi-

tution is proposed for the other pertinent words; “hus-

band,” “father” and “mother.” It is respectfully sug-

gested that this Court note that the status and role of

the Petitioner herein in the custody proceedings in the

Supreme Court of the State of New York, Westchester

County, and all subsequent appeals in this matter, was

and is as a father, which is the applicable and operative

term in Section 237, subdivision (b), of the New York

Domestic Relations Law. No attempt was made by the

said New York Appellate Court to say “father” meant

“mother,” or the converse. This is a prime example of

the absurdity of the judicial legislation attempted by the

said New York Appellate Court.

Section 238 of the New York Domestie Relations Law to

which the Court refers was amended effective July 28,

1978, so as to be gender-free. Prior to that date, awards

under Section 238 of the New York Domestie Relations

law could only be made to the wife and against the hus-

hand. Thus, the amended Section 238 cannot be utilized to

infer legislative intent as referred to by the said Appellate

Division, but must be held to indicate that the New York

State Legislature did not want to amend the New York

Domestic Relations Law, Section 237, subdivision (b), for it

explicitly amended only Section 238. Tf the New York

| a

State Legislature wanted to amend Section 237, subdivision

(b), it would have done so and the Appellate Court can-

not “deem” the statute to mean what the legislature

obviously did not enact.

In attempting to justify the prohibited judicial legisla-

tion in Childs v. Childs, A. D. 2d , 419 N. Y. S. 2d

533, appended, infra, at page 29, the said Appellate Di-

vision of the Supreme Court of the State of New York,

Second Judicial Department, appears to rely upon the fol-

lowing words of Mr. Justice Brennan in Orr v. Orr, 440 U.

S. , 99 S. Ct. 1102:

“In every equal protection attack upon a statute

challenged as underinclusive, the State may satisfy

the Constitution’s commands either by extending the

benefits to the previously disfavored class or by

denying benefits to both parties (e.g. by repealing

the statute as a whole). In this case, if held un-

constitutional, the Alabama divorce statutes could

be validated by, inter alia, amendments which either

(1) permit awards to husbands as well as wives, or

(2) deny alimony to both parties.” Page 1108.

Clearly the State action to which Mr. J ustice Brennan re-

fers is the action of the State Legislature in enacting or

repealing laws. This is established by his indicating in

Orr v. Orr, supra, that one of the alternatives whereby the

State may satisfy the Constitution’s demands is “by deny-

ing benefits to both parties ( e.g. by repealing the statute

as a whole).”

Some commentators have suggested in the post Orr

period that a State may meet such challenges to the con-

stitutionality of gender-based statutes by judicial construc-

tion; however, there is no basis for any presumption that

the learned Justice Brennan, in indicating that State ac-

tion may satisfy the Constitution’s commands. meant any-

thing other than the appropriate legislative action pre-

scribed by the Constitution of the United States and the

Constitution of the State of New York. Mr. Justice Wil.

liam Rehnquist, writing for the majority in Touche Ross

& Co. v. Reddington, June 18, 1979, No. 78-309, U.S.

, 99 S. Ct. 2479, stated precisely the limitations on

judicial power, declaring:

“SIPC and the Trustee contend that the result

we reach sanctions injustice. But even if that were

the case, the argument is made in the wrong forum,

for we are not at liberty to legislate. If there is to

be a federal damage remedy under these circum-

stances, Congress must provide it. ‘{I]t is not for

us to fill any hiatus Congress has left in this area.’

Wheeldin v. Wheeler, 373 U. S. 647, 652, 83 S. Ct.

a 10 L. Ed. 2d 605 (1963). * * *” Pages

490-1.

It is significant that the said New York Appellate Court

in refusing to follow the mandate which this Court issued

on April 17, 1979 in Childs v. Childs, No. 77-1653, appended,

infra, at page 27, followed the course taken by the

Alabama Court of Civil Appeals on remand from this

Court in Orr v. Orr, No. 77-1119, 440 U. S. » 99S. Ct.

1102. The Alabama Court of Civil Appeals, on remand

from this Court, in Orr v. Orr, dated May 30, 1979, un-

reported, appended, infra, at page 49, sustained the con-

stitutionality of the Alabama alimony statutes by “neu-

trally extending alimony rights to needy husbands as

well as wives.” In so doing the Alabama Court of Civil

Appeals baldly stated:

“As a matter of predominant legislative purpose

then, we are not prepared to eliminate the current

statutory benefits available to needy females inas-

much as we are of the opinion that the legislature

would not do so.” Jd. appended, infra, page 49.

And almost apologetically the Alabama Court of Civil

Appeals explained its act of judicial legislation, as fol-

lows:

“We would be remiss in not commenting that we

take the above action reluctantly. It has been the

policy of this Court not to encroach on the legis-

lature’s function. We adhere to that policy. How-

ever, in view of the magnitude of the problem cre-

ated by the action of the United States Supreme

Court, we are compelled to apply the principle of

law which we do in this instance. Unless we take

appropriate measures, Alabama will be without an

alimony statute. The legislature has not had ample

opportunity to respond to this void: it therefore be-

comes our duty to fill that void by the application of

appropriate legal principles.” Jd. appended, infra,

at page 49.

Both the New York court and the Alabama court have

ignored the respective mandates issued by this Court.

Both courts have violated the Doctrine of Separation of

Powers by engaging in prohibited judicial legislation which

clearly is impermissible.

Section 237, subdivision (b), of the New York Domestic

Relations Law as presently enacted falls within the pro-

seription of Orr v. Orr, No. 77-1119, 440 U. S. , 99S. Ct.

1102, and is irrevocably unconstitutional under the Con-

stitution of the United States and the Constitution of the

State of New York. Any change in this statutory scheme

contained in the New York Domestic Relations Law must

come from the Legislature of the State of New York.

Article ITI, Section 1 of the Constitution of the State of

New York; Article I, Section 1 of the Constitution of the

United States. Leffler v. Leffier, 50 A. D. 2d 93, 95, 376

N. Y. S. 2d 176 (1975), affirmed 40 N. Y. 2d 1036, 391 N. Y.

S. 2d 855 (1976); Northrup v. Northrup, 43 N. Y. 2d 566,

972, 402 N. Y. 2d 997, 999 (1978) ; Erkenbach v. Erkenbach,

96 N. Y. 456, 465 (1883).

The Courts of the State of New York may adjudicate,

they cannot legislate. Article III, Section 1 and Article

VI, Sections 5(a) and 7(a) of the Constitution of the State

of New York; Article I, Section 1 and Article IT, Section

1 of the Constitution of the United States; U. S. v. Caro-

lene Products Co., 304 U.S. 144, 151-4, 58 S. Ct. 778, 783-4

(1938); People v. Bielecki, 56 Mise. 2d 730, 733, 291 N.

Y. S. 2d 217, 219 (1968); People v. Friedman, 302 N. Y.

75, 79, 96 N. E. 2d 184, 185-6 (1950); People v. Kupprat,

6 N. Y. 2d 88, 90, 188 N. Y. S. 24 483, 485 (1959).

The State legislature has all the law making powers in-

herent in its sovereignty, except as curtailed by State or

Federal Constitutions expressly or by necessary implica-

tions, and where the language used in a statute is without

any ambiguity, indefiniteness or obscurity, the statute must

be enforeed by the courts exactly as it is written: Trade

Accessories v. Bellet, 184 Mise. 962, 965-6, 55 N. Y. S.

2d 361, 364-5 (1945), appeal dismissed 295 N. Y. 763, 66

N. E. 2d 127. For the Court below to engage in judicial

legislation by reading “wife” to mean “spouse,” and “hus-

band” to mean “spouse,” is violative of the Doctrine of

Separation of Powers, under which the legislature makes

the laws and the Courts construe the laws and adjudge as

to the rights of persons thereunder. People v. Morton,

156 N. Y. 136, 144, 50 N. E. 791 (1898). Each of the

three branches of government is “separate, independent and

co-equal” possessing inherent powers to protect its powers.

Tt is a fundamental principle of constitutional law that one

branch of government may not encroach on the jurisdic-

tion of another, nor impede another in carrying out its

duties and responsibilities. Ascione v. City of New York,

84 Misc. 2d 414, 419, 377 N. Y. S. 2a 599 (1975) modified,

Blyn v. Bartlett, 379 N. Y. 8. 2d 616, 50 A. D. 2d 442,

affirmed, 384 N. Y. S. 2d 99, 39 N. Y. 2d 349.

A Court may not make, but may only interpret the policy

of the State, which is either expressed in or implied from

its constitution, legislative enactments and common law,

and does not under any circumstances formulate publie

policy; it may not fill a vaeuum which may exist in the

law by a legislative determination in the guise of a ju-

dicial ruling. Kates v. Lefkowitz, 28 Misc. 2d 210, 211 &

217, 216 N. Y. S. 2d 1014, 1016 & 1021 (1961): Kuhn v.

Curran, 184 Mise. 788, 56 N. Y. S. 2d 737 (1945). All

Courts are bound by the applicable provisions of the

Federal and State Constitutions. People v. Scher, 76

Mise. 2d 71, 79, 349 N. Y. S. 2d 902, 911 (1973).

The Appellate Division in its Decision and Order dated

July 11, 1979 has endeavored to justify its “construction”

of Section 237, subdivision (b), of the New York Domestic

Relations Law as being constitutional by indicating that

without such a reading of the statute, inequitable circum-

stances would occur which were “totally unforeseen by the

legislature”; Childs v. Childs, A. D. 2d , 419 N. Y.

S. 2d 533, appended, infra, at page 29.

Clearly, a Court may not substitute itself for the legisla-

ture merely because the legislature has failed to act.

Clasen Management Corp. v. Temporary State Housing

Rent Commission, 29 Mise. 2d 258, 260, 217 N. Y. S. 2d

287, 290 (1961). The Court may not legislate under the

guise of interpretation of a statute: Bright Homes, Inc.,

v. Wright, 8 N. Y. 2d 157, 162, 203 N. Y. S. 2d 67, 70

(1960). Mere expediency cannot transfer the legislative

powers to the Court, even though a vacuum may exist

in the statutory scheme. People v. System Properties,

Inc., 2 N. Y. 2d 330, 345, 160 N. Y. S. 2d 859, 868 (1957) ;

Kessel v. D’Amato, 97 Mise. 2d 675, 412 N. Y. 8. 2d 303,

310 (1979),

The Court below construed the word “wife” in Section

237(b) of the New York Domestic Relations Law to mean

“spouse.” Webster’s Third International Dictionary of

the English Language, Unabridged (1976), gives the fol-

lowing definitions:

Husband: A married man.

Wife: A married woman.

Spouse: A man or woman joined in wedlock: married

person.

Father: A man who has begotten a child: a male

parent.

Mother: A woman who has given birth to a child: a

female parent.

There is no ambiguity in these words. They are explicit

and set forth precisely an intended sexual differentiation.

To say that “husband” can mean “spouse” or “wife” can

mean “spouse” in every statutory context is illogical and

illiterate. The syllogism is absurd, for a “husband” can-

not be a “married man or married woman”; nor can a

“wife” be a “marrried man or married woman.” It refutes

common sense. In construing statutes the commonly ac-

cepted meaning of the word or words must be used. Rath-

bun v. United States, 355 U. S. 109, 78 S. Ct. 161 (1957).

The learned Justice Oliver Wendell Holmes states the dif-

ference clearly in his dissent in Adkins v. Children’s Hos-

pital, 261 U. S. 525 (1923) saying:

“Tt will need more than the 19th Amendment to

convinee me that there are no differences between

men and women....” Page 570.

The attempted transmutation of “husband” into “spouse”

meaning either husband or wife, by the New York Ap-

pellate Court, is a glaring example of judicial fiat. “It’s

like this: When your Majesty says, ‘Let a thing be done’—

practically, it is done—because your Majesty’s will is law.”

Gilbert and Sullivan, The Mikado, Act IT (1885).

In Orr v. Orr, No. 77-1119, supra, this Court, if it deter-

mined that it possessed the power and authority, could

have construed “husband” to mean “husband or wife,” or

“spouse,” and “wife” to mean “wife or husband,” or

“spouse,” but it did not. For this Court well knew that

it possessed no power to engage in legislative acts. How-

ever, the New York Appellate Court ignored both the man-

date issued by this Court in Childs v. Childs, No. 77-1653,

appended, infra, at page 27, and the express limitation on

its powers to legislate contained in the Constitution of the

United States and the Constitution of the State of New

York.

There is no ambiguity in the meaning of Section 237,

subdivision (b), of the New York Domestie Relations

Law. The New York Appellate Court merely ignored

the basic rules of construction. It ignored the elemen-

‘tary rule of “Inclusio unius est exclusio alterius.” Tf the

statute states “wife,” it certainly exeludes “husband,” and

if it states “husband,” it likewise excludes “wife.” If it

includes “father,” it exeludes “mother,” and conversely.

It refused to recognize that no ambiguity exists in the

meaning of the words “husband” or “father,” or “wife”

or “mother.”

Where statutory law was fixed, the Court cannot dis-

regard that law as written and cannot construe or ap-

praise legislative judgment or enactment where the lan-

guage of the statute is not ambiguous. Bright Homes,

Inc. v. Wright, supra; Mertz v. Mertz, 271 N. Y. 466, 471,

3 N. E. 2d 597 (1936); People v. Caswell-Massey Com-

pany, 7 A. D. 2d 727, 180 N. Y. S. 2d 611 (1959). The

New York Courts cannot review the acts of the legis-

lature and substitute their judgment for that of the legis-

lature. People v. System Properties, Inc., supra; People

v. Billi, 90 Mise. 2d 568, 570-573, 395 N. Y. 8S. 2d 353,

355-357 (1977). The Courts cannot, through construc-

tion, enact an intent which the legislature failed to ex-

press by reading into a statute words which were not

there. People v. Stuyvesant Insurance Co., 98 Mise. 2d

210, 413 N. Y. S. 2d 843, 848 (1979); Matter of Palmer

v. Spaulding, 299 N. Y. 368, 372, 87 N. E. 2d 301, 302

(1949). Words of ordinary import should be given their

plain, ordinary and usual meaning. Bright Homes, Inc.

v. Wright, supra; Matter of Palmer v. Spaulding, supra.

The Court below by its construction of Section 237,

subdivision (b), of the New York Domestie Relations

Law endeavored to construe the plain and unambiguous

meaning of that statute. The Court, in so doing, usurped

the functions of the State legislature and, under the guise

of construction, endeavored to rewrite the statute to make

it something entirely different from what its wording

plainly indicated. Such action by the Court is clearly

prohibited judicial legislation. Matter of Palmer vr.

Spaulding, supra; Tormey v. Laguardia, 278 N. Y. 450,

17 N. E. 2d 126 (1938), motion denied, 279 N. Y. 780,

18 N. FE. 2d 864. Under the Doctrine of Separation of

Powers, courts may not legislate or expand statutory

terms to extend legislation. In re Adoption of Malpica-

Orsini, 36 N. Y. 2d 568. 37 N. Y. S. 2d 511 (1975), appeal

dismissed: Orsini v. Blasi, 96 S. Ct. 765, 423 U. S. 1042

(1976).

In Caban v. Mohammed, No. 77-6431, 440 U. S. '

99 S. Ct. 1760 (April 24, 1979), this Court held Section

111, subdivision 1(¢), of the New York Domestic Relations

Law to be unconstitutional, in that the Equal Protection

Clause of the Fourteenth Amendment was violated by the

sex-based distinction between unmarried mothers and un-

married fathers contained therein. The challenged pro-

vision of the New York Domestic Relations Law permit-

ted an unwed mother, but not an unwed father, to block

adoption of their illegitimate child. This Court did not

endeavor to construe “mother,” as used in the challenged

section, to mean “mother or father,” but read the stat-

ute as written and found it to constitute gender-based

discrimination.

This Court could have issued a similar decree in

Childs v. Childs, No. 77-1653, supra, but chose to follow

the practice of remanding the matter for further pro-

ceedings and consideration by the New York Appellate

Court. This Court may, if it so wishes, on this Petition

for Writ of Mandamus, formulate its ewn decree, since

the New York Appellate Court has refused to conform

to this Court’s mandate. Martin v. Hunter’s Lessee, 1

Wheat. (14 U. S.) 304, 4 L. Ed. 97 (1816); NAACP v.

State of Alabama ex rel. Flowers, 377 U. S. 288, 84S. Ct.

1302 (1964).

Without doubt, this Court has the jurisdiction and the

power to give effect to its own judgment and compel full

and correct compliance by a state court with its mandate

where the state court has declined or refused to carry

out that mandate. The Constitution and laws of the

United States are as much a part of the law of every

state as its own local laws and Constitution. The judges

of a state must pronounce the law applicable to the case

in judgment, which must be decided not merely according

to the laws or Constitution of the state, but according

to the law and Constitution of the United States which

is the supreme law of the land. Martin v. Hunter's Les-

see, Supra,

This Court has permitted a Petition for a Wnit of

Mandamus to be filed against a state court and issued a

rule to show cause why mandamus should not issue. Ew

parte State of Texas, 315 U. S. 8, 62 S. Ct. 418 (1942).

In two eases this Court has granted Petitioner’s motion

for leave to file a Petition for a Writ of Mandamus to

require the state court to conform its decision to the man-

date of this Court, but did not issue the writ on the as-

sumption that the state court would conform to the deci-

sion made in the mandamus proceeding. Bucolo v. Ad-

kins, 424 U. S. 641, 96 S. Ct. 1086 (1976); Deen v. Hick-

man, 358 U. S. 57, 79 S. Ct. 1 (1958).

If this Court fails to compel state courts to comply

with its mandates by appropriate writs, then the decision

of the Supreme Court of the United States, in cases

originating in state courts, will be enforceable only to the

extent that state courts are willing to enforce them. If

the proceedings of the Appellate Division of the Supreme

Court of the State of New York, Second Judicial Depart-

ment, are not corrected to conform to the judgment,

opinion and mandate of this Court, then judges of state

courts need not be concerned with that part of Article

VI of the Constitution of the United States whieh pro-

vides that “This Constitution and the Laws of the United

States which shall be made in Pursuance thereof .

shall be the supreme Law of the Land; and the Judges in

every State shall be bound thereby, any Thing in the

Constitution or Laws of any State to the Contrary not- —

withstanding.”

Conclusion.

The Appellate Division of the Supreme Court of the

State of New York, Second Judicial Department, and the

aforesaid justices thereof, have violated the mandate of

this Court issued on April 17, 1979 in Childs v. Childs,

No. 77-1653, by engaging in prohibited judicial legislation

on remand by construing Section 237, subdivision (b), of

the New York Domestic Relations Law to be constitu-

tional and remitting the matter to the trial court for a

hearing de novo. The said New York Appellate Court

upon receiving the aforesaid mandate of this Court has

sought to evade it and to render it ineffective, and in

doing so has violated the Doctrine of Separation of

Powers.

WHeErEFoRE, Petitioner prays:

1. That a Writ of Mandamus issue from this Court

directing the Appellate Division of the Supreme Court

of the State of New York, Second Judicial Department,

Milton Mollen, Presiding Justice, and Frank D. O’Con-

nor, Leon D. Lazer, Frank A. Gulotta and Guy J. Man-

gano, Justices of the Appellate Division of the Supreme

Court of the State of New York, Second Judicial De-

partment, to show cause on a day fixed by this Court

why a Mandamus should not be issued by this Court

directing the said Appellate Division of the Supreme

Court of the State of New York, Seeond Judicial De-

partment, and the said Justices thereof, to comply with

the mandate of this Court issued on April 17, 1979 in

Childs v. Childs, No. 77-1653, and directing the said Ap-

pellate Division of the Supreme Court of the State of

New York, Second Judicial Department, and the afore-

said Justices thereof, to vacate its Decision and Order

dated July 11, 1979 and to enter an order in conformity

with the aforesaid mandate of this Court.

2. That Petitioner have such additional relief and

process as may be necessary and appropriate in the prem-

ises.

Respectfully submitted,

THEODORE Q. CHILDS,

Counsel for Petitioner (Pro Se),

150 Broadway,

New York, N. Y. 10038

APPENDIX.

Opinion and Order of the Supreme Court of the United

States in Childs v. Childs, No. 77-1653, March 19,

1979.

No. 77-1653. Theodore Q. Childs, petitioner, v. Lucy

Gant Childs.

March 19, 1979. On petition for writ of certiorari to

the Appellate Division of the Supreme Court of New

York, Second Judicial Department. Petition for writ of

certiorari granted, judgment vacated and case remanded

to the Appellate Division of the Supreme Court of New

York, Seeond Judicial Department, for further considera-

tion in light of Orr v. Orr, 440 U. S. , o9 L. Ed. 2d

306, 99 S. Ct. (1979). Mr. Justice Stewart dis-

sents.

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

Washington, D. C. 20543

Mareh 19, 1979

Theodore Q. Childs

150 Broadway

New York, NY 10038

Re: Theodore Q. Childs

vy. Luey Gant Childs

No. 77-1653

Dear Mr. Childs:

The Court today entered the following order in the

above-entitled case:

“The petition for a writ of certiorari is granted.

The judgment is vacated and the ease is remanded

to the Appellate Division, Supreme Court of New

York, Second Judicial Dept. for further considera-

tion in light of Orr v. Orr, 440 U.S. (1979),

Mr. Justice Stewart dissents.”

Very truly yours,

MICHAEL RODAK, Jr.

Clerk

Decision and Order of the Appellate Division of the

Supreme Court of the State of New York, Second

Judicial Department, dated July 11, 1979, A. D.

2d , 419 N. Y. S. 2d 533.

July 11, 1979

SUPREME COURT,

APPELLATE DivisioN—SeEconp JupDICIAL DEPARTMENT.

O’Connor, J.P., Lazer, Gulotta and Mangano, JJ.

Lucy Gant CHILDs,

Respondent,

against

THEODORE Q. CxHILps,

Appellant.

Apprats from (1) so much of an order of the Supreme

Court at Special Term (James R. Caruso, J.), dated

December 30, 1976 and entered in Westchester County,

as awarded plaintiff a counsel fee of $12,000, plus dis-

bursements, and (2) a further order of the same court

(Anthony J. Ferraro, J.), dated July 11, 1978, which,

inter alia, granted plaintiff’s application for a money judg-

ment for arrears in the payment of counsel fees. (By

order dated March 19, 1979, the Supreme Court of the

United States “vacated” the order of this court which had

modified the order dated December 30, 1976 [60 A. D. 2d

638] and remanded the ease to this court for further

consideration in light of Orr v. Orr, 440 U.S. [99 S. Ct.

1102].)

John J. Von Der Lieth, New York, N. Y., for ap-

pellant and appellant pro se.

Lans Feinberg & Cohen, New York, N. Y. (Deborah

K. Lans and Robert Stephan Cohen of counsel),

for respondent.

Robert Abrams, Attorney-General, New York, N. Y.

(Robert J. Schack and George D. Zuckerman of

counsel), appearing pursuant to Executive Law,

§71.

O’Connor, J. P.:

We are called upon by the Supreme Court of the United

States to review a previous decision of this court in light

of Orr v. Orr (440 U. S. [99 S. Ct. 1102]) (see Childs

v. Childs, 60 A. D. 2d 639, mot. to dismiss app. granted

43 N. Y. 2d 946, revd. 440 U. S. [99 S. Ct. 1488]).

This in turn requires us to test the constitutionality of

section 237 of the Domestic Relations Law under a post-

Orr light. We hold that the statute is constitutional in-

sofar as it authorizes the trial court to award counsel

fees to either party on a_ gender-neutral, needs-only

basis. We further hold that this construction of the

Domestie Relations Law shall be prospective only to pro-

ceedings and applications pending on March 5, 1979, the

date of the Orr decision.

The facts, other than conflicting allegations of financial

worth, are essentially not in dispute. The parties were

married in 1955 and divorced in July, 1974 pursuant to a

judgment of the Supreme Court, Westchester County.

Four children were born during the marriage: three sons,

presently 23, 12 and 10 years old, respectively; and one

daughter, presently 21 years old. By stipulation, the two

older children remained with the defendant father, while

the two younger sons remained in the plaintiff mother’s

custody in the marital home in Searsdale, New York, sub-

ject to the defendant’s visitation rights. The underlying

proceeding which triggered the present controversy was a

contested postdivorce custody proceeding commenced by

the defendant in the Supreme Court, Westchester County.

It appears that in December, 1975, the plaintiff mother,

without any notice to or consent of the defendant father,

vacated the marital residence with the two youngest chil-

dren and moved to Chapel Hill, North Carolina. Since

this had the effect of frustrating the defendant’s visitation

rights, he immediately moved to modify the judgment of

divorce so as to obtain custody of these two children.

There followed a plenary hearing lasting some 20 days at

which numerous witnesses, both lay and medical, testified.

An application was also made by the plaintiff, during the

proceeding, for counsel fees. The defendant husband, how-

ever, did not cross-apply for counsel fees. While the de-

fendant ultimately succeeded in obtaining custody of the

two youngest boys, the trial court (Caruso, J.), in an

order dated December 30, 1976, nevertheless awarded the

plaintiff counsel fees of $12,000 and disbursements of

$1,500.

The defendant thereupon appealed to this court, argu-

ing for the first time that section 237 of the Domestic

Relations Law was unconstitutional as violative of the

equal protection clause (citing, inter alia, Frontiero v.

Richardson, 411 U.S. 677 and Reed v. Reed, 404 U.S. 71).

This court, in a decision dated December 27, 1977 (60 A.

D. 2d 639), refused to reach the constitutional question

upon the ground that “[a]ppellant, having failed to re-

quest a counsel fee, lacks the requisite standing to chal-

lenge the constitutionality of the statute (see 8 N. Y. Jur,

Constitutional Law, §50).” At the same time, however, this

court afforded the defendant some relief by reducing the

award of counsel fees to $5,000, plus disbursements.

Aggrieved, the defendant appealed to the Court of Ap-

peals. On February 22, 1978 that court dismissed the

appeal on the ground, inter alia, that “no substantial con-

stitutional question is directly involved” (43 N. Y. 2d 946,

947). Still aggrieved, the defendant filed a petition for

certiorari to the Supreme Court of the United States.

While the defendant was pursuing his appellate review

channels, the plaintiff was proceeding with enforcement

remedies. Upon the defendant’s failure to pay the re-

duced award, the plaintiff moved in May, 1978, pursuant to

section 244 of the Domestic Relations Law, for the entry

of a judgment for $6,500 representing arrears of counsel

fees plus disbursements. In opposition, the defendant

sought to relitigate the propriety of the award of counsel

fees previously reviewed by this court; specifically, he

stated that the award was unjust because his wife had

assets of $464,000 while he earned only $19,000 per year

and had a net debt of some $50,000. The defendant also

requested a stay of entry of a judgment pending further

appeals. The court (Ferraro, J.), by an order dated July

11, 1978, granted the plaintiff’s application for a judgment

of $6,500 while denying the defendant’s application for

a stay.

Meanwhile, the defendant’s appeal to the Supreme Court

of the United States on the underlying order awarding

counsel fees (i.e., 60 A. D. 2d 639, mot. to dismiss app.

granted 43 N. Y. 2d 946, supra), was slowly winding its way

through channels. On March 5, 1979 the celebrated case

of Orr v. Orr (440 U.S. [99 S. Ct. 1102]) was decided,

striking down an Alabama statutory scheme similar to

New York’s, as violative of the equal protection clause of

the Constitution. On March 19, 1979 the Supreme Court

of the United States granted the Childs petition for writ

of certiorari, vacated the previous order of this court and

“remanded [the case] to the Appellate Division of the Su-

preme Court of New York, Second Judicial Department,

for further consideration in light of Orr v. Orr, 440 U. S.

” (Childs v. Childs, 440 U. S. [99 S. Ct. 1488],

supra). The State Attorney-General has been given per-

mission to intervene (see Executive Law, §71) and, at

this time, both the appeal from the order granting a judg-

ment of $6,500, and the remand from the Supreme Court

of the United States on the constitutionality of section

237 are before this court.

Analysis must commence with a statement of the law

as it presently exists:

“$237. Counsel fees and expenses

“(a) In any action or proceeding brought (1) to

annul a marriage or to declare the nullity of a

void marriage, or (2) for a separation, or (3) for

a divorce, or (4) to declare the validity or nullity

of a judgment of divorce rendered against the wife

who was the defendant in any action outside the

State of New York and did not appear therein

where the wife asserts the nullity of such foreign

judgment, or (5) by a wife to enjoin the prose-

cution in any other jurisdiction of an action for a

divorcee, or (6) upon any application to annul or

modify an order for counsel fees and expenses

made pursuant to this subdivision provided, the

court may direct the husband, or where an action

for annulment is maintained after the death of the

husband may direct the person or persons main-

taining the action, to pay such sum or sums of

money directly to the wife’s attorney to enable the

wife to carry on or defend the action or proceed-

ing as, in the court’s discretion, justice requires,

having regard to the circumstances of the case and

of the respective parties. Such direction must be

made in the final judgment in such action or pro-

ceeding, or by one or more orders from time to

time before final judgment, or by both such order

or orders and the final judgment. Upon appli-

cation of the husband or the wife or the person

or persons maintaining an action for annulment

after the death of the husband, upon such notice

to the other party and given in such manner as

the court shall direct, the court may, in or before

final judgment, annul or modify any such direc-

tion. Subject to the provisions of section two hun-

dred forty-four of the domestic relations law the

authority granted by the preceding sentence shall

extend to unpaid sums or installments accrued prior

to the application as well as to sums or install-

ments to become due thereafter. Any applications

for counsel fees and expenses may be maintained

by the attorney for the wife in his own name in

the same proceeding.

“(b) Upon any application to annul or modify

an order or judgment for alimony or for custody,

visitation, or maintenance of a child, made as in

section two hundred thirty-six or section two hun-

dred forty provided, or upon any application by

writ of habeas corpus or by petition and order to

show cause concerning custody, visitation or main-

tenance of a child, the court may direct the husband

or father to pay such sum or sums of money for

the prosecution or the defense of the application or

proceeding by the wife or mother as, in the court’s

discretion, justice requires, having regard to the

circumstances of the case and of the respective

parties. With respect to any such application or

% a

proceeding, such direction may only be made in the

order or judgment by which the particular appli-

cation or proceeding is finally determined. Any

applications for counsel fees and expenses may be

maintained by the attorney for the wife in coun-

sel’s own name in the same proceeding” (emphasis

supplied).

“$238. Expenses in enforcement proceedings

“In any action or proceeding to compel the pay-

ment of any sum of money required to be paid by a

judgment or order entered in an action for divorce,

separation, annulment or declaration of nullity of a

void marriage, or in any proceeding pursuant to

section two hundred forty-three, two hundred forty-

four, two hundred forty-five, or two hundred forty-

six, the court may in its discretion require either

party to pay the expenses of the other in bringing,

carrying on, or defending such action or proceeding.

In any such action or proceeding, applications for

counsel fees and expenses may be maintained by the

attorney for the respective parties in counsel’s own

name and in counsel's own behalf” (emphasis sup-

plied).

“$244, Enforcement by execution of judgment or

order in action for divorce, separation or

annulment

“Where the husband in an action for divorce, sep-

aration or annulment, or declaration of nullity of a

void marriage, or a person other than the husband

when an action for an annulment is maintained after

the death of the husband, makes default in paying

any sum of money as required by the judgment or

order directing the payment thereof, the court in its

discretion may make an order directing the entry of

judgment for the amount of such arrears, or for such

part thereof as justice requires having a regard to

the circumstances of the respective parties, together

with ten dollars costs and disbursements. The ap-

plication for such order shall be upon such notice

to the husband or other person as the court may di-

rect. Such judgment may be enforced by execution

or in any other manner provided by law for the col-

lection of money judgments. The relief herein pro-

vided for is in addition to any and every other

remedy, including, but not limited to the remedy pro-

vided pursuant to the provisions of section forty-

nine-b of the personal property law, to which the

wife may be entitled under the law; provided that

when a judgment for such arrears or any part thereof

shall have been entered pursuant to this section,

such judgment shall thereafter not be subject to

modification under the discretionary power granted

by this section; and after the entry of such judg-

ment the judgment creditor shall not hereafter be

entitled to collect by any form of remedy any greater

portion of such arrears than that represented by

the judgment so entered” (emphasis supplied).

The focus of our inquiry is, of course, the Supreme

Court’s decision in Orr v. Orr (supra) and its impact on

the foregoing laws. The Alabama statutory scheme con-

strued was quite similar to that of New York’s inasmuch

as, by statute, Alabama likewise permitted alimony to be

granted only to wives, never to hushands (see Orr v. Orr,

supra, p. 1107, n. 1, citing, Ala. Code, tit. 30, §30-2-51,

et seq.). As far as we are concerned, Orr is noteworthy

for its analysis of standing in addition to its examination

of the underlying equal protection considerations. The

threshold issue of standing is relevant here because, in

the December, 1977 order, this court disposed of the con-

stitutional attack on standing grounds, i.e., the “[a]ppel-

lant, having failed to request a counsel fee, lacks the

requisite standing to challenge the constitutionality of the

statute” (60 A. D. 2d 639, supra). In Orr it was urged

that the defendant lacked standing because he “made no

claim that he was entitled to an award of alimony from

Mrs. Orr, but only that he should not be required to pay

alimony if similarly situated wives could not be ordered

to pay. It is therefore possible that his success here will

not ultimately bring him relief from the judgment out-

standing against him” (Orr v. Orr, 99 S. Ct. at pp. 1107-

1108, supra). Mr. Justice Brennan, speaking for a six-

member majority, however, failed to find this argument

persuasive (supra, p. 1108):

“In every equal protection attack upon a statute

challenged as underinclusive, the State may satisfy

the Constitution’s commands either by extending

benefits to the previously disfavored class or by

denying benefits to both parties * * * In this case,

if held unconstitutional, the Alabama _ divorce

statutes could be validated by, inter alia, amend-

ments which either (1) permit awards to husbands

as well as wives, or (2) deny alimony to both

parties * * * [I]f * * * the State takes the second

course and denies alimony to both spouses, it is

Mr. Orr and not the hypothetical plaintiff who

would benefit * * *

“There is no question but that Mr. Orr bears

a burden he would not bear were he female * * *.

The burden alone is sufficient to establish standing.

Our resolution of a statute’s constitutionality often

does ‘not finally resolve the controversy between

th{e] appellant and th[e] appellee,’ Stanton v.

Stanton [421 U. S. 17]. We do not deny standing

simply because the ‘appellant, although prevailing

here on the federal constitutional issue, may or may

not ultimately win [his] lawsuit.’ Zd., at 18.”

Similarly, in the instant case, the fact that the defend-

ant may enot ultimately succeed in obtaining the sought-

after relief when tested against purely objective economic

criteria is legally insignificant from the point of view of

standing. Nor may the defendant’s failure to request a

counsel fee in the original custody proceeding be con-

sidered any ionger a fatal impediment to standing, des-

pite this court’s earlier conclusion to that effect. The

gravity of the issue being beyond doubt in light of Orr,

this court may reconsider the question upon remand

despite the failure to request such an award or even

raise the issue at trial (ef. Matter of Niagara Wheatfield

Administrators Assn. [Niagara Wheatfield Cent. School

Dist.], 44 N. Y. 2d 68, 72). In any event, were we to af-

firm the order upon remand from the Supreme Court

upon the ground that the defendant’s failure to raise any

equal protection infirmity before the trial court consti-

tuted an adequate State ground for such affirmance (see

Orr v. Orr, 99 S. Ct. at p. 1109, supra; ef. Henry v. Mis-

sissippi, 379 U. S. 443. 446), the defendant would still

possess the requisite standing to attack the constitution-

ality of the statutory scheme. This follows because the

defendant affirmatively requested counsel fees during the

subsequent enforcement proceeding in May, 1978. Conse-

quently, at no time has appellate scrutiny of sections 238

and 244 of the Domestie Relations Law been impaired.

Having disposed of the threshold procedural objections,

the Supreme Court turned its attention to the equal pro-

tection problem itself. The court held that the Alabama

statutory scheme of imposing alimony obligations on hus-

bands but not wives violated the equal protection clause

of the Fourteenth Amendment. “‘To withstand serutiny’

under the equal protection clause, ‘ “classifications by

gender must serve important governmental objectives and

must be substantially related to achievement of those ob-

jectives”’” (Orr v. Orr, 99 S. Ct. at p. 1111, eiting Cali-

fano v. Webster, 430 U. S. 313, 316-317). Alimony is,

in principle, a valid governmental objective because it

seeks to assist needy spouses. However, no statutory

scheme may be upheld on the basis of the State’s prefer-

ence for an allocation of family responsibility under

which the wife plays merely a submissive, dependent role.

“[{T ]he ‘old notion’ that ‘generally it is the man’s primary

responsibility to provide a home and its essentials,’ can

no longer justify a statute that discriminates on the basis

of gender. ‘No longer is the female destined solely for

the home and the rearing of the family, and only the male

for the market place and the world of ideas’” (Orr v.

Orr, 99 S. Ct. at p. 1112, citing Stanton v. Stanton, 421

U. S. 7, 10, 14-15; see, also, Craig v. Boren, 429 U. S.

190, 198). Putting it another way, while providing for

alimony is a valid legislative action, gender could no

longer provide an accurate index of need, or an “ ‘ac-

curate proxy’” (Orr v. Orr, 99 S. Ct. at 112, citing Craig

v. Boren, supra, p. 204; see, also, Reed v. Reed, 404 U. 8.

71, 76, supra). Since the parties’ finances were already

required to be considered by the Alabama statutory

scheme before any trial court determination (Orr v. Orr,

supra, p. 1113), it logically followed that any “ ‘gender-

based distinction is gratuitous’” (id., citing Weinberger

v. Wiensenfeld, 420 U. S. 636, 653). Accordingly, the

Supreme Court concluded that any classification based

purely on gender was irrational from an equal protection

point of view, and the underlying statutory scheme un-

constitutional.

IIT.

Having examined the constitutional underpinnings of

Orr, there can be no doubt that sections 237 and 244 of

the Domestic Relations Law, with their present gender

predicates, must likewise fall under the prohibition of

= =

equal protection principles. Section 238 of the Domestic

Relations Law, as recently amended to provide for coun-

sel fees to either spouse, is, however, constitutionally

permissible. It matters not that our inquiry is addressed

to statutes which authorize counsel fees to wives only,

and not alimony obligations. Like the Alabama statute

which was stricken, section 237 of the Domestic Relations

Law is designed to assist needy wives and guarantee their

ability to bring matrimonial actions unimpeded by mone-

tary obstacles; on its face, the statute is specifically con-

ceived “to enable the wife to carry on or defend the ac-

tion or proceeding” (Domestie Relations Law, §237, subd.

fa]; see Emmer v. Emmer, A. D. 2d [2nd

Dept., dee. April 16, 1979], citing Martin v. Martin, 28

A. D. 2d 897; Zang v. Zang, 63 A. D. 2d 561, citing Kann

v. Kann, 38 A. D. 2d 545; LaPorte v. LaPorte, 60 A. D.

2d 966 [Appeal No. 2]; Ross v. Ross, 47 A. D. 2d 866:

Winter v. Winter, 39 A. D. 2d 69, 71-72, affd. 31 N. Y. 2d

983; see, also, 11B Zett-Edmonds-Schwartz, N. Y. Civ.

Prac., §38.06[1], p. 38.65). Without repeating the equal

protection argument verbatim, Orr makes it readily ap-

parent that New York’s statutory scheme of granting

counsel fees purely as a function of gender is irrational

and cannot stand. As the Court of Appeals observed

with respect to the analogous setting of a section of the

Family Court Act which subjected girls to a Person in

Need of Supervision (PTNS) adjudication until the age

of 18, while simultaneously affording immunity to boys

from such liability after the age of 16, “since there is no

justification for the age-sex distinction so much of section

712 (subd. [b]) of the Family Court Act as encompasses

females between the ages of 16 and 18 must be stricken

as unconstitutional” (Matter of Patricia A., 31 N. Y. 2d

83, 89; see, also, Seidenberg v. McSorley’s Old Ale House,

Inc., 308 F. Supp. 1253, 1259-1260). Since New York’s

statutory scheme presently requires the trial court to

take into consideration the respective finances of the

parties before making a determination of counsel fees (see

Domestic Relations Law, §§ 237, 250, ef. Garrel v. Garrel,

o9 A. D. 2d 885), it logically follows that “‘the gender-

based distinction is gratuitous’” (Orr v. Orr, 99 S. Ct. at

p. 1113, supra, citing Weinberger v. Wiesenfeld, 420 U. S.

636, 653, supra); that is to say, the purpose of the legis-

lation will be satisfied based purely on objective economic

criteria and without resort to any impermissible gender

classification. The conclusion that New York’s statutory

scheme is unconstitutional insofar as it is predicated on

gender is not novel. In Thaler v. Thaler (89 Mise. 2d

315, 319-325, revd on other grounds 58 A. D. 2d 890), Mr.

Justice Harnett reasoned that sections 236 and 237 of

the Domestic Relations Law were violative of the equal

protection clause based upon an analysis quite similar to

that of Orr. Other trial courts have reached similar con-

clusions in the wake of Orr’. It is important to note,

however, despite the patent invalidity of sections 237 and

244, that section 238 of the Domestic Relations Law, as

amended in 1978, is perfectly constitutional within the

strictures of Orr. This follows because the statute pres-

ently authorizes the trial court to “require either party to

pay the expenses of the other in bringing, carrying on,

or defending such” an enforcement proceeding, including

specifically counsel fees (emphasis added).

TV.

Although sections 237 and 244 of the Domestie Rela-

tions Law as presently drafted fall within the proserip-

tion of Orr, yet it does not necessarily follow that they

See Laka v. Laka, N.Y.L.J., March 20, 1979, p. 12, col. 2:

Levy v. Levy, N.Y.L.J., April 19, 1979, p. 13, col. 5; Robson v.

Robson, N.Y.L.J., March 27, 1979, p. 6, col. 6; ef. Matter of Roth,

N.Y.L.J., March 27, 1979, p. 12, col. 5.

must be deemed irrevocably unconstitutional and annulled.

We are cognizant of the argument that, counsel fees being

a creature of statute and unknown to the common law,

such an infirmity as discerned here leaves this court

powerless to resurrect the authority to award counsel fees

absent new and constitutional legislative action (see

Lambert v. Lambert, 45 A. D. 2d 715, citing Silbert v.

Sibert, 22 A. D. 2d 893. affd. 16 N. Y. 2d 564 and Blaine

v. Blaine, 20 A. D. 2d 903; ef. Sharrock v. Dell Buick-

Cadillac, 45 N. Y. 2d 152, 166-167).2. But an appellate

court has an obligation to pursue every reasonable path

of reconciliation of the challenged statute consonant with

the Constitution, rather than setting it aside. In this

regard, it is commonly said that every presumption in

favor of the statute will be indulged, every effort made

to construe ambiguous language so as not to conflict with

fundamental law (see, e. g., Marcus Assoc. v. Town of

Huntington, 45 N. Y. 2d 501, 505, eiting Lighthouse

Shores v. Town of Islip, 41 N. Y. 2d 7, 11; Matter of

Carter v. Carter, 58 A. D. 2d 438, 445-446 [opn. by Sha-

piro, J.], citing Hirson v. United States Corp., 263 App.

Div. 646, 650, affd. 289 N. Y. 564: see, also, MeKinney’s

Cons. Laws of N. Y., Book 1, Statutes, $150, subd. e). And

while courts traditionally refrain from construing a chal-

lenged statute in such a way so as to “expand” or add

to the language, as opposed to merely excising from it

(see Matter of Malpica-Orsini, 36 N. Y. 2d 568, d71, app.

dsmd. 423 U. S. 1042), nevertheless, under appropriate

circumstances, a court may read a statute expansively, or

in tandem with other statutes, so as to prevent serious

damage to overriding public policy (see Welsh v. United

States, 398 U. S. 333, 355-356 (Harlan, J., coneurring]).

Without such an expansive reading in the instant case,

*For cases where this argument was made, see Levy v. Levy,

N.Y.L.J., April 19, 1979, p. 13, eol. 5; Robson v. Robson,

N.Y.L.J., March 27, 1979, p. 6, col. 6.

the orderly processes by which indigent spouses seek

legal recourse would come to a halt producing extremely

inequitable circumstances, totally unforeseen by the Leg-

islature. As Mr. Justice Harnett pointed out in Thaler

(89 Mise. 2d 315, 328, supra), with respect to the possible

elimination of alimony: “Total elimination of alimony

would produce a much greater shock to the legislative

design than spreading its availability to all dependent

spouses * * *, It would be a totally inappropriate re-

sponse to the problem at hand.” While suspending the

authorization to grant counsel fees would have an impact

of lesser severity than the suspension of alimony, the

principle is the same. Publie policy encourages the equi-

table resolution of matrimonial disputes (see, e. g., Kay

v. Kay, 37 N. Y. 2d 632, 637). Accordingly, this court

eonstrues sections 237 and 244 of the Domestic Relations

Law as constitutional since we deem them to authorize

counsel fees to either spouse on a gender-neutral, needs-

basis only. Such a construction is consistent with the

traditional rule that where a statute has been found to

violate the equal protection clause, courts will tradition-

ally read into it the improperly excluded class (see, e. &.,

Califano v. Westcott, U. S. [47 U.S.L.W.

4817, 4821] [aid to dependent children benefits]; Califano

v. Goldfarb, 430 U. S. 199 [Social Security Act survivor-

ship benefits|; Weinberger v. Wiesenfeld, 420 U. S. 636,

supra [same]; Frontiero v. Richardson, 411 U. S. 677,

supra [armed forces fringe benefits]; Levy v. Louisiana,

391 U.S. 68 [wrongful death actions]; Matter of Passante

v. Walden Printing Co., 53 A. D. 2d 8, 13 [worker’s com-

pensation survivorship benefits]). Furthermore, there is

precedent for reading other statutes in tandem for the

purpose of resisting constitutional challenges (see Mat-

ter of Carter v. Carter, 58 A. D. 2d 438, 446, supra [Fam-

ily Ct. Act, §§ 413, 414 read in tandem]; see, also, Tess-

ler v. Siegel, 59 A. D. 2d 846 [same]). In the instant

case, section 238 of the Domestie Relations Law presently

allows the trial court to require either party to pay the

expenses of the other, including counsel fees. This stat-

ute, therefore, provides on its face a statutory mecha-

nism by which the trial court may award counsel fees

to the husband in a limited proceeding. Additiona! au-

thority is found in CPLR 8303 (subd. [a], par. 2), which

provides for the granting by the court of a “diseretion-

ary allowance * * * to any party to a difficult or extra-

ordinary case, where a defense has been interposed.” It

has been suggested by the Attorney-General that since

“[nJo precedent has been found for the instant situa-

tion,” applications for counsel fees for husbands are con-

sequently “extraordinary” within the meaning of the stat-

ute. By resort to either of the foregoing statutes, sec-

tions 237 and 244 of the Domestic Relations Law can be

constitutionally read as substituting the word “spouse”

for “wife.”

Finally, we address ourselves to the issue of retro-

activity. We hold that our construction of these statutes

shall have prospective effect only in proceedings pending

on the date of the Orr decision, March ), 1979. All other

awards of counsel fees which had been conclusively ad-

judicated as of that date shall not be affeeted by our

holding today. There exists no constitutional impedi-

ment to applying changes in law only in eases pending

as of the date of such decision (see New York Public

Interest Research Group v. Steingut, 40 N. Y. 2d 250, 260-

261, citing Hurd v. City of Buffalo, 41 A. D. 2d 402, 405,

affd. 34 N. Y. 2d 628; Incorporated Vil. of Northport v.

Guardian Fed. Sav. & Loan Assn., 87 Mise. 2d 344, 348-

350 [Lazer, J.], affd. 54 A. D. 2d 893; ef. Matter of Gowan

v. Tully, 45 N. Y. 2d 32, 34). The Supreme Court of the

United States in Chevron Oil Co. v. Huson (404 U.S. 97,

106-107) observed that there are three factors to consider

in deciding the issue of retroactivity: (1) does the deci-

sion establish a “new principle of law, either by over-

ruling clear past precedent on which litigants may have

relied * * * or by deciding an issue of first impression

whose resolution was not clearly foreshadowed”; (2) does

an examination of the prior history indicate “ ‘whether

retrospective operation will further or retard its opera-

tion’”; and (3) does it appear that the decision “ ‘could

produce substantial inequitable result if applied retro-

actively.” With respect to the Orr decision, it cannot

be doubted that it overruled clear past precedent relied

upon ceaselessly and that retroactive application prior to

March 5, 1979 would produce chaotic, inequitable results

(see, also, Laka v. Laka, N.Y.L.J., March 20, 1979, p. 12,

col. 3).

VI.

Accordingly, the matter must be remitted to the trial

court for a hearing de novo. At such a hearing, both

parties may apply for counsel fees. The trial court will

make a decision de novo as, in the court’s discretion,

justice requires, having regard to the economic needs of

both parties and the circumstances of the case.

Lazer, Gulotta and Mangano, JJ., coneur in the opinion

of Mr. Justice O’Connor.

es Be es

ape eee ee

— eee eS Oe eee A ee

aT a ee Pee

B/me

Frank D. O’Connor, J. P.

Leon D. Lazer

Frank A. Gulotta

Guy J. Mangano, JJ.

AD2d A—June 19, 1979

2749 E/77

926 EF Luey Gant Childs, respondent,

E v. Theodore Q. Childs, appellant.

John J. Von Der Lieth, New York, N. Y., for appellant

and appellant pro se.

Lans Feinberg & Cohen, New York, N. Y. (Deborah E.

ans and Robert Stephan Cohen of counsel), for re-

spondent.

Robert Abrams, Attorney-General, New York, N. Y.

(Robert J. Schack and George D. Zuckerman of counsel),

appearing pursuant to Executive Law, §71.

Appeal by the defendant husband from (1) so much of

an order of the Supreme Court, Westchester County

(CARUSO, J.), dated December 30, 1976, as awarded

plaintiff a counsel fee of $12,000, plus disbursements, and

(2) a further order of the same court (FERRARO,

J.), dated July 11, 1978, which, inter alia, granted plain-

tiff’s application for a money judgment for arrears in the

payment of counsel fees.

By order dated December 27, 1977, this court modified

the order dated December 30, 1976 by reducing the coun-

sel fee and, as so modified, affirmed the said order (60 AD

2d 639). On February 22, 1978, the Court of Appeals dis-

missed the appeal to that court (43 NY2d 946). On

March 19, 1979 the Supreme Court of the United States

“vacated” the order of this court and remitted the case

to this court “for further consideration in light of Orr v.

Orr” (440 US......[99 S Ct 1102]) (440 US........ [99 S Ct

1488]).

Order dated December 30, 1976 reversed insofar as

appealed from, without costs or disbursements.

Order dated July 11, 1978 modified by deleting there-

from the provision which granted plaintiff’s applica-

tion for a judgment representing arrears in counsel fees.

As so modified, said order affirmed, without costs or dis-

bursements.

This case is remitted to the Supreme Court, Westchester

County, for further proceedings in accordance with the

opinion herein.

Opinion by O’Connor, J. P.

Lazer, Gutotra and Manaano, JJ., concur in the opinion

of Mr. Justice O'Connor.

Order and Memorandum Decision of the Court of

Appeals, State of New York, dated October 9, 1979.

STATE OF NEW YORK, COURT OF APPEALS

At a session of the Court, held at Court of

Appeals Hall in the City of Albany on the

ninth day of October A.D. 1979

Present,

Hon. Lawrence H. Cooke, Chief Judge, presiding.

—<——

2 Mo. No. 877 SSD 89

Lucy Gant CHILDs,

A ppellant-Respondent,

VS.

THEODORE Q. CHILDs,

Respondent-A ppellant.

—ecipe-

The appellant-respondent and respondent-appellant hav-

ing filed notices of appeal and cross-appeal in the above

title and due consideration having been thereupon had,

it is

OrDERED, that the appeal and cross-appeal be and the

same hereby are dismissed without costs, by the Court

sua sponte, upon the ground that the order appealed

from does not finally determine the action within the

meaning of the Constitution.

JOSEPH W. BELLACOSA

Clerk of the Court

Decision of The Court of Civil Appeals, State of Ala-

bama in Orr v. Orr, Civ. 1006, dated May 30, 1979,

on remand from the Supreme Court of the United

States.

STATE OF ALABAMA—JUDICIAL DEPARTMENT

THE COURT OF CIVIL APPEALS

OCTOBER TERM 1978-79

—o

Civ. 1006

WituiAam HersBert Orr

Vv.

Liztran M. Orr

On Remand from United States Supreme Court

HotMEs, JODGE

This is a divorce case.

After the parties’ divorce in 1974, the wife petitioned

the Circuit Court of Lee County for a rule msi due to

the husband’s failure to pay alimony. The husband

unsuccessfully defended on the ground that Alabama’s

alimony statutes, §§ 30-2-51, 52, and 53, Code of Ala. 1975,

were unconstitutional. Upon the husband’s appeal to

this court, we sustained the constitutionality of the stat-

utes. Orr v. Orr, Ala.Civ. App., 351 So.2d 904 (1977).

The husband appealed to our supreme court which

initially granted certiorari, but which subsequently, with-

out opinion, quashed the writ as improvidently granted.

Orr v. Orr, Ala., 351 So.2d 906 (1977).

The husband appealed to the Supreme Court of the

United States. That court, on March do, 1979, held that

NN 30-2-51, 52, and 53 were unconstitutional on the ground

that they were violative of the equal protection provisions

of the United States Constitution. Orr v. Orr, No. 71-1119

(U.S. March 5, 1979). The case was remanded to this

court for proceedings consistent with the Supreme Court’s

opinion.

Upon remand, the wife filed in this court a motion

to affirm the judgment rendered in the court below.

The dispositive issue now before us is whether the

wife’s motion to affirm the original judgment of the

trial court should be granted. For the reasons set forth

below, we hold that it should and affirm.

We note at the outset that the Supreme Court of the

United States in its opinion goes to some length to sug-

gest matters of state law which might well preserve the

wife’s right to alimony in this instance. Specifically, the

opinion suggests that this court can respond to reversal

and bind Mr. Orr to continue his alimony payments on

two such grounds: (1) by a neutral extension of alimony

rights to needy husbands as well as wives, Orr, supra, at

3; and/or (2) by determining that, as a contractual mat-

ter, Mr. Orr is bound to continue alimony payments by

virtue of his stipulated agreement to do so. Jd. at 15.

Considering the entire proceeding and the importance

of the issues raised by this matter, we determine that

the motion is properly before this court and that the issues

raised therein are appropriate for our consideration. See

State ex rel Knox v. Dillard, 196 Ala. 539, 72 So. 56

(1916). See also Bryant v. Moss, 295 Ala. 339, 329 So.2d

938 (1976); Sterling Oil of Oklahoma, Inc. v. Pack, 291

Ala. 727, 287 So.2d 847 (1973).

Our alimony statutes were found to be constitutionally

impermissible for the reason that they are underinclusive ;

that is, they improperly exclude statutory benefits from a

class of individuals on the basis of sex. The wife initially

contends that this court can respond to reversal by neu-

trally extending alimony rights to males as well as females.

In support of this contention, she cites Orr, supra, in addi-

tion to other appropriate authority. We agree. .

Where a statute is constitutionally infirm on the basis

of underinclusiveness, a court may satisfy the Constitu-

tion’s commands by either extending benefits to those ex-

cluded from the scope of its coverage or by invalidation

of the statute in its entirety. Orr, supra; Welsh v. U.S.,

398 U.S. 333 (1970). In Welsh, supra, the Supreme Court

stated:

Where a statute is defective because of under-

inclusion there exist two remedial alternatives: a

court may either declare it a nullity and order that

its benefits not extend to the class that the legisla-

ture intended to benefit, or it may extend the cov-

erage of the statute to include those who are ag-

crieved by exclusion. .. . (Citations omitted.) 398

U.S. at 761, Harlan, Jr., concurring.

Courts have on a number of occasions remedied the

deficiencies in underinclusive statutes by extending bene-

fits to those impermissibly excluded. See, e. 2. Califano

v. Goldfarb, 430 U. S. 199 (1977); Weinberger v. W seee-

feld, 420 U. S. 636 (1975); Levy v. Loursiana, 391 U.S.

68 (1965); White v. Crook, 251 F. Supp. 401 (M. D. oo

1966); Beal v. Beal, Me., 388 A. 2d 72 (1978). See also

Eich v. Town of Gulf Shores, 293 Ala. 95, 300 So. 2d

354 (1974).

The choice between invalidation of a statute or expan-

sion of the scope of its applicability requires, of neces-

sity, an ascertainment of the predominant legislative pur-

pose underlying the statute’s enactment. Beal. supra.

That is to say, given the nature and substance of the

statute, its relevant economic, social, and historical im-

plications, can it be concluded that benefits should be termi-

nated to the class of persons whom the legislature in-

tended to benefit. In this instance, we think not.

Alabama’s current alimony statutes have their gene-

sis in $$ 1970, 71, and 72, Code of Ala. 1852, As

we suggested in our original opinion, this statutorv

scheme has served a crucial legislative policy; to provide

alimony upon the demise of a marriage in order to pre-

serve the economic status quo of the parties as it existed

during the marriage. Orr v. Orr, Ala. Civ. App., 351 So.

2d 904 (1977

. It is clear to this court that the statutes, notwithstand-

ing the deficiency which the Supreme Court found to

exist, were at the time of their promulgation substan-

tially related to the appropriate legislative objective of

providing monetary assistance to the financially needy

wife and that this objective continues, as a pragmatic

matter in appropriate circumstances, in its viability to-

day. Furthermore, it oceurs to us that the legislature is

quite cognizant of the fact that the female in appropriate

cases who has virtually contributed her adult life to the

tined for “the market place... .” Put another wav. a

female who has virtually never been employed outside the

home, but has been a mother, wife, and/or homemaker for

a number of years is not in a favored position to obtain

gainful employment.

As a matter of predominant legislative purpose then,

we are not prepared to eliminate the eurrent statutory

benefits available to needy females inasmuch as we are

of the opinion that the legislature would not do so. We

are in agreement with the Supreme Court of Maine, in

Beal, supra, which, in its resolution of the issue of

whether to extend or eliminate the benefits of its original

alimony statute concluded:

[A]s between abolishing alimony and making it

available to husbands in appropriate cases, [the

legislature] would choose the latter. We conclude

that the dominant legislative purpose of the ali-

mony statute, as it stood when this action was

brought, is correctly served by treating it as ex-

tending eligibility to men as well as women.

388 A. 2d at 76.

Because we here respond to reversal by neutrally ex-

tending alimony rights to needy husbands as well as

wives, we hold that the wife’s motion to affirm the judg-

ment rendered below is due to be granted.

We would be remiss in not commenting that we take

the above action reluctantly. It has been the policy of

this court not to encroach on the legislature’s function.

We adhere to that policy. However, in view of the mag-

nitude of the problem created by the action of the United

States Supreme Court, we are compelled to apply the

principle of law which we do in this instance. Unless we

take appropriate measures, Alabama will be without an

alimony statute. The legislature has not had ample op-

portunity to respond to this void; it therefore becomes

our duty to fill that void by the application of appropriate

legal principles.

In view of the above it is unnecessary to reach other

issues raised by the motion to affirm.

The judgment of the trial court is due to be affirmed.

Affirmed.

Wright, P. J., and Bradley, J., concur.

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