This matter was tried before me on April 9, 2007, at which time the grounds for divorce were bifurcated from the issues of equitable distribution.

The proof that is required to prove a cause of action based upon constructive abandonment (Domestic Relations Law § 170[2]), as alleged in this case, is neither novel nor unique. The statutory requisites, as well as case law interpreting that statute, are clear, if not rote.

Domestic Relations Law § 170 presently provides that an action for divorce may be maintained on any of the following grounds:

1. Cruel and inhuman treatment so that the conduct of the defendant so

endangers the physical or mental well-being of the plaintiff so as to

render it unsafe or improper for the plaintiff to cohabit with the

defendant;

2. The abandonment of the plaintiff by the defendant for a period of

one or more years;

3. The confinement of the defendant in prison for a period of 3 or more

consecutive years after their marriage;

4. The commission of an act of adultery;

5. The parties have lived apart pursuant to a decree or Judgment of

Separation for one or more years after the granting of such decree or

judgment and satisfactory proof has been submitted by the plaintiff

that plaintiff has substantially performed all terms and conditions of [*2]

such decree or judgment.

6. The husband and wife have lived separate and apart pursuant to a

written agreement of separation, subscribed by the parties thereto and

acknowledged or proved in the form required to entitle a deed to be

recorded, for a period of one or more years after the execution of such

agreement and satisfactory proof has been submitted by the plaintiff

that he or she has substantially performed all the terms and conditions

of such agreement.

As this statute is unambiguous on its face, "the court should construe the language so as to give effect to the plain meaning of the words used." Matter of Raritan Dev. Corp. v. Silva, 91 NY2d 98, 107, quoting Patrolmen's Benevolent Assn. v. City of New York, 41 NY2d 205; Doctors Council v. New York City Employees Retirement Sys., 71 NY2d 669.

In this case involving allegations of constructive abandonment, as a matter of law, all four of our Appellate Divisions have steadfastly held that the refusal or failure to engage in marital relations must be unjustified, willful and continued, despite repeated requests from the other spouse for resumption of cohabitation. Caprise v. Caprise, 143 AD2d 968. Not only must the absence of relations be for more than one year, but there must be repeated requests for conjugal relations, which requests were unjustifiably, willfully and continuously refused. Lyons v. Lyons, 187 AD2d 415. Clearly, trial courts are without authority to vacate or modify orders of the Appellate Division, and are bound by that authority as part of a bedrock adherence to the precept of stare decisis. See, Maracina v. Schirrmeister, 152 AD2d 502, 502-503; DeMille v. DeMille, 32 AD3d 411.

A cursory determination of the grounds issue here would only deflect a recurring dilemma to the public at large. In an all-too-frequent occurrence, matrimonial courts are faced with innumerable instances where efficacious resolution of economic issues and custody determinations are backseated and delayed by fault (grounds) trials. The party without resources to afford such litigation, or, the party who chooses not to aggressively allege the faults of his/her spouse, is often at a tactical disadvantage - - simply because an opposing party seeks to impose financial leverage or exacting personal animus, due to the current statutory scheme to establish grounds for divorce in New York State.

The Court of Appeals maxims of a "level playing field" and "litigation parity" (see, O'Shea v. O'Shea, 93 NY2d 190; DeCabrera v. Cabrera-Rosete, 70 NY2d 879) are doctrines that are conceptually important, but which are significantly impeded by the current antiquated statutory scheme of fault based divorce in New York State - - the significant cost and delay, resulting from such trials, in many cases, are precluding access to our courts or making the process wholly more acrimonious by fostering and encouraging the embellishment of a spouse's wrongdoing as to grounds, often with immeasurable effects upon a divorcing household.

[*3]This case vividly illustrates the direct impact that New York's fault-based divorce statute has on the manner and speed in which matrimonial matters proceed. Here, while litigating the issue of grounds, these parties were relegated to motion practice, amendment of pleadings, contemplation of withdrawal of the action and seeking a divorce in another jurisdiction, filing jury demand, conferences, and ultimately, trial of the matter. These proceedings relating to fault have endured since January, 2005.

The uncontroverted facts reflect that these parties have been living apart since June 22, 2005. Notwithstanding the controverted issue of the circumstances surrounding the departure of the plaintiff from the marital home, and even acknowledging that there is no written separation agreement between the parties, Mr. Molinari would be entitled to be granted a judgment of divorce, on these limited facts alone, in 49 states - - with New York being the only exception.

To address this seeming statutory dilemma, the New York State Matrimonial Commission, chaired by Hon. Sondra Miller, in a significant part of a report to the Chief Judge, made the following observation:

"Substantial evidence, derived from the public hearings held by the Commission and the professional experience of the Commission members, leads us to conclude that fault allegations and fault trials add significantly to the cost, delay and trauma of matrimonial litigation and are, in many cases, used by litigants to achieve a tactical advantage." See, Miller Commission Report to the Chief Judge of the State of New York, April 2006, p. 18.

A legislative initiative, Assembly Bill A03027 ^[FN1], sponsored by Assemblywoman Helene Weinstein, proposes enactment of the "Divorce Reform Act of 2007," with a stated legislative purpose of adding irreconcilable differences as a ground for divorce. Currently, New York State is the only jurisdiction in all 50 states that requires the finding of default or living apart pursuant to a separation agreement, as the basis for a divorce. Consider divorce statutes in every other jurisdiction:

Bill A03027 does not eliminate the fault grounds, but instead adds "irreconcilable differences as a ground and thereby gives an individual an option to obtain a divorce without alleging fault." A party would have to allege "irreconcilable differences" such that there is no reasonable prospect of reconciliation (See Assembly Bill A03027, and legislative history 2006; A10440-A-Assembly Judiciary Committee).

The divergence of a minority view, within the footnote of the Matrimonial Commission's report, as well as the views of individuals, domestic violence groups and other advocacy organizations, have also "made it clear that no-fault divorce litigation must be accompanied by reforms" in other areas. See, Bill Text, A03027. The history of the legislative discussion goes back years, but all of the divergent views agree that there is "clearly a consensus that our divorce laws need reform." See Bill Text, A03027, supra. The financial and human costs to contest grounds are prohibitive, access to the court is impeded, and the type of case tried here continues as an everyday dilemma for courts, litigants, and the public at large.

The systemic and pervasive nature of the problems created by the archaic fault based statute in New York has been corroborated and detailed from every perspective. The current effect on daily trials in busy matrimonial parts has been vividly detailed by a former Chairperson of the Family Law Section of the New York State Bar as follows:

"A source of disappointment, however, is the failure to pass a true no fault divorce bill. Much time and effort has been expended by the state bar to change the law. Some Supreme Court judges have become so frustrated they have labeled the efforts to pass no fault legislation a quintessential exercise in futility.' Other judges have expanded the definition of constructive abandonment to permit divorces in cases where other grounds for divorce may be marginal, at best." See, Family Law Tests New Ground, Vincent Stempel, Esq., N.Y.L.J., Jan. 23, 2006, p. 14, col. 4.

The dichotomy between the legislative and judicial functions as it relates to grounds for divorce, is very real and succinctly stated by Queens Supreme Court Justice Jeffrey Leibowitz in X.J. v. F.J., N.Y.L.J., Oct. 21, 2005, p. 23, col. 3:

"The need to establish fault often becomes, as in this case, an impossible burden to overcome for parties seeking to disassociate themselves from a marriage that is neither physically or psycholo- gically beneficial to them. This Court has previously called upon[*6] the Legislature to re-examine the relevance of fault in matrimonial actions. This Court has been joined by numerous bar associations and other organizations in asking the Legislature to determine whether or not fault remains relevant in the context of divorce litigation. See this Court's decision, S.C. v. A.C., 4 Misc 3d 1014(A), Sup. Ct., Queens Cty. 2004, and the efforts listed therein for consideration of this issue by the Legislature."

He further adds:

"This Court does not believe that a judge should step into a legislative void and craft new or alternative grounds for divorce. That function properly remains the prerogative of the Legislative branch of our government."

This is clearly an area for legislative determination (see, Bill Text A03027, supra), and not judicial fiat. This proposed bill, in comprehensively addressing the concerns of individuals and interested groups, contains "first of a kind proposals that would set guidelines to maintenance and ensure that both parties are represented by counsel in a no-fault divorce" (see, Vestal, "New York Wants A Better No-Fault Divorce Law," Stateline Org., March 21, 2006.

"From time immemorial, the State has exercised the fullest control over the marriage relation," going so far as to observe that there are, in effect, three parties to every marriage, "the man, the woman and the State" (Fearon v. Treanor, 272 NY 268, 272, appeal dismissed, 301 U.S. 667). "Absent a constitutional violation, we may not disturb duly enacted statutes to, in effect, substitute another policy preference for that of the legislature." Hernandez v. Robles, 7 NY3d 338.

The impermissible intrusion by the judiciary upon the legislative domain must be avoided. By the same token, New York is the only state that requires the finding of fault or the living apart pursuant to written agreement of separation. Footnote 23 to the Matrimonial Commission Report to Chief Judge Judith Kaye indicates:

"A recent survey of divorce statutes for the fifty state, Puerto Rico, the U.S. Virgin Islands and the District of Columbia indicates that 35 jurisdictions recognize some form of Irreconcilable Differences or Irretrievable Breakdown of the marriage as a basis of ending the marital relationship, 6 jurisdictions recognize Incompatibility as a basis of ending marriages and 11 jurisdictions permit living separate and apart without legal proceedings or the finding of fault as a basis for divorce. Only New York requires the finding of fault or the living apart pursuant to a legal document as the basis for a divorce." (emphasis added)[*7]

CONSTITUTIONALITY

In Chief Judge Kaye's dissent in Hernandez v. Robles, 7 NY3d 338, she succinctly provides:

"It is uniquely the function of the Judicial Branch to safeguard individual liberties guaranteed by the New York State Constitution, and to order redress for their violation. The Court's duty to protect constitutional rights is an imperative of the separation of powers, not its enemy."

In my view, judicial preference for legislative action rather than constitutional determination is equally applicable to New York's fault-based statute. But, considering that 49 other states have addressed the "fault dilemma," we need only consider that "as the institution of marriage has been redefined within modern American society, the law has adjusted accordingly." See Justice Saxe dissent, Hernandez v. Robles, 26 AD3d 98.

"A Statute should not ordinarily be set aside as unconstitutional by a court of original jurisdiction unless such a conclusion is inescapable. Courts of first instance should not exercise transcendent power of declaring an act of the legislature unconstitutional except in rare cases involving life and liberty, and where the liberty of the act is apparent on its face. McKinney's Consolidated Laws of New York Annotated, Book 1, Statutes, §150, page 312 (West Publishing Company , 1971)." But, §150 further states that "Where the consequences may be severe and the damage irreparable, a lower court should not hesitate to determine the constitutionality of a statute."

Those who challenge the statute as unconstitutional must demonstrate actual or threatened injury to a protected right . . . and that they have been aggrieved by the unconstitutional feature of the statute." In the Matter of Daniel C., 99 AD2d 35, aff'd. 63 NY2d 927 (1984). An exception that would apply to the "injury-in-fact" requirement for standing to raise or pursue constitutional issues, is the void-statute exception. Under this exception the statute may be attacked by someone otherwise affected by it but not aggrieved by its unconstitutional feature. See, In Matter of Daniel C., supra, at p. 43.

The Court finds that the void-statute exception is not applicable in this case, and therefore there must be an "injury-in-fact" or aggrieved party before this Court can properly determine if the subject statute is or is not constitutional. Moreover, such consideration at this juncture is procedurally defective, if not premature, as no notice as to the constitutionality of the statute was given to the Attorney General. See, C.P.L.R. §1012(b). But clearly, as succinctly suggested by Justice Saxe's dissent in Hernandez v. Robles, 26 AD3d 98, the New York State Constitution's due process clause independently protects the "Fundamental right to marriage and family life" (see, Cooper v. Morin, 49 NY2d 69). The constitutional issues are, at this point, premature, but nonetheless are weighty.[*8]

CONCLUSION

The exigency that attaches to the issue pending before this Court and the impending legislation (See Bill A03027), should not cause preemption of legislative authority by judicial fiat. Further considering that the Court's determination of this grounds issue may very well be guided by impending statutory change, I will hold my decision in abeyance for a reasonable time and retain jurisdiction, giving the legislature the opportunity to consider, debate and act upon pending legislation, with all due speed. See, Bill A03027, supra. Given the finances in this matter, and to avoid prejudice by the stay that I am imposing on the grounds issue here, financial discovery shall continue to be completed while the parties await impending legislative determination, or further order of this court. In my view, this is not an abdication of judicial duty, but is the fulfillment of a constitutional responsibility. See, Hernandez v. Robles, 26 AD3d 98, citing Baker v. State, 170 Vt. 194.

Given the plethora of legislative dialogue already had over the past several years and "virtually every interested group agreeing that reform is necessary in New York" (see, Bill A03027), and especially considering that the legislative bodies of 49 other states have addressed this issue, and, given the exigency of a determination here, legislative attention is especially significant here. The Report of the Matrimonial Commission to the Chief Judge, and the proposed legislation by Assemblywoman Weinstein, provide a blueprint, ripe for legislative consideration to the current divorce grounds statute. Amidst the current culture of important reform in New York State, together with our legislative and executive branches' extraordinary potential to provide progressive and sweeping change when necessary and appropriate, there is a unique opportunity to comprehensively address this dilemma.

Accordingly, it is

ORDERED, that determination of the grounds issue in this matter will be stayed until legislative determination of Bill A03027, or further order of this Court; and it is further

ORDERED, that all discovery proceedings in this matter shall proceed in accordance with the preliminary conference order; and it is further

ORDERED, that a copy of this decision and order shall be served by the Clerk, Part IAS 20, by certified mail, upon

Hon. Elliot Spitzer, Governor, State of New York

Hon. Andrew Cuomo, Attorney General of the State of New York;

Hon. Helene Weinstein, Chair, New York State Assembly Judiciary Committee;

Hon. John DeFrancesco, Chair, New York State Senate Judiciary Committee;

Hon. Sheldon Silver, Speaker, New York State Assembly;

Hon. Joseph Bruno, Speaker, New York State Senate;

This constitutes the decision and order of this Court.[*9]

Dated: Mineola, New York

April 16, 2007

E N T E R:

___________________________

HON. ROBERT A. ROSS

J.S.C.

Footnotes

Footnote 1: This was referred to the Judiciary Committee on Jan. 22, 2007.

Footnote 2: New York is the only state that requires separation to be pursuant to written agreement betweenthe parties.