# Petition — Childs v. Appellate Division of the Supreme Court of New York, Second Judicial Department > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1154%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 444 U.S. 1010 ## Text fF RF SLED TE 4 UCT 25 979 —ihieteee—neee IR CLERK In THE mn Supreme Court of the United States October Term, 1979 vo. 89-676 es 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 it 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 i 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, 2 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 3 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 5 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.” 6 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.” 7 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. . .” 8 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- 9 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 10 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- 11 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 12 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 13 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. 14 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 15 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- 16 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. 17 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). 18 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. 19 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), 20 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. a 21 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, 22 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). 23 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 o4 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.” 25 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- 26 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 27 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. 28 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 th 29 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].) 30 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. I 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 31 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 32 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 33 “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. II 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- 34 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 35 % 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 36 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 i 37 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.” 38 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- 39 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 = = 40 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 41 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. 42 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. 43 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 44 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.” V. 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 45 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 46 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]). 47 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. 48 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 49 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 i 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). 50 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 dl 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- 52 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 53 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1154%3A1. Public record. Not legal advice.