Virginia Fomenko v. Joseph Fomenko

[50 A.D.2d 712 Page 712] Memorandum: After a jury trial in this action wherein plaintiff sued for divorce and defendant counterclaimed for divorce, verdicts were rendered in favor of plaintiff for divorce against defendant on the ground of his cruel and inhuman treatment of her and in favor of defendant against plaintiff on the ground of her cruel and inhuman treatment of him. There was sufficient evidence to support both verdicts, since the jury were entitled to reject plaintiff's testimony that her treatment of defendant was induced by his provocation and that he condoned her denial of sexual relations with him. Under section 170 of the Domestic Relations Law the court may grant dual divorce to the parties (John W S v Jeanne FS, 48 A.D.2d 30, 33). The court properly construed section 236 of the Domestic Relations Law as requiring denial of alimony to plaintiff, since her conduct was found, upon sufficient evidence, to constitute grounds for separation or divorce (Math v Math, 39 A.D.2d 583, affd 31 N.Y.2d 693; John W S v Jeanne F S, supra; Gullo v Gullo, 46 A.D.2d 991; Thompson v Thompson, 44 A.D.2d 849). Plaintiff's contention that such a construction of section 236 of the Domestic Relations Law renders it unconstitutional as violative of the equal protection clause is without merit. If the statute bears a rational relationship to a legitimate State objective, it is constitutional (Schlesinger v Ballard, 421 U.S. 906; Kahn v Shevin, 416 U.S. 351, 355; Murphy v Murphy, 232 Ga 352, cert den 421 U.S. 929). The legislative purpose of this statute is to provide a source of income to wives upon the termination of their husbands' obligations to support them. The Legislature, in its wisdom, conditioned this right of support upon the wife being blameless in the dissolution of the marriage. As between husbands and wives, it may well be argued that the statute discriminates, if at all, against husbands, who are wholly denied alimony by the statute regardless of the circumstances. But an analysis of the statute shows that the classification differential is not of husbands as against wives (cf. Reed v [50 A.D.2d 712 Page 713]