2004 NY Int. 130
The issue presented by this appeal is whether
plaintiff's cause of action for divorce on the ground of
imprisonment pursuant to Domestic Relations Law § 170 3),
On May 12, 1983, plaintiff wife and defendant husband were married. Thereafter, on January 28, 1984, defendant was arrested for the shooting death and robbery of a cab driver. In 1985, he was convicted, upon a jury verdict, of murder in the second degree, robbery in the first degree and criminal possession of a weapon in the second degree, and sentenced to a prison term of 25 years to life. Defendant has been incarcerated since the date of his arrest. Plaintiff, who was convicted for the same crimes as defendant, is also incarcerated.
On April 10, 2000, plaintiff commenced this action for divorce on the ground that defendant has been confined for a period of three or more consecutive years after their marriage ( see Domestic Relations Law § 170 ). Plaintiff moved for summary judgment of divorce pursuant to CPLR 3212 , contending that no triable issues of fact exist. In opposition, defendant asserted a number of defenses including the five-year statute of limitations ( see Domestic Relations Law § 210). Arguing that the five-year limitations period begins to run from the end of his third continuous year of incarceration, defendant urged that the action is time-barred as it was commenced long after his eighth successive year in prison. In fact, defendant had been incarcerated for over 16 years at the time the action was commenced. Plaintiff responded that accrual of this cause of action for divorce is properly measured from any time after three years of continuous incarceration up until the date on which defendant is released from prison and, therefore, her action is timely.
Supreme Court dismissed plaintiff's action on summary
judgment. A divided Appellate Division affirmed, the majority
concluding that "[t]he imprisonment ground for divorce arose once
the defendant had been incarcerated for three years, a date which
is more than five years before the commencement of this action"
(307 2 908, 908 [2nd Dept 2003]). Two dissenting Justices
held that "the imprisonment ground is a continuing ground which
In 1966, the Legislature enacted the Divorce Reform Law amending the former laws of this state which, since 1787, recognized adultery as the only ground for divorce ( see L 1966, Ch. 254; see generally Gleason v Gleason, , 26 NY2d 28 1970]). The grounds were expanded to six, including divorce predicated on confinement in prison ( see Domestic Relations Law § 170). Domestic Relations Law § 170 provides that:
"An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on . . . the following ground:
"(3) The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant."
The general purpose underlying the new statute was to "recognize
grounds for divorce . . . as manifestations of dead marriages,
marriages that should be terminated for the mutual protection and
well being of the parties and, in most instances, of their
children" (1966 Report of the Joint Legislative Committee on
Matrimonial and Family Laws to the Legislature of the State of
New York, at 85; see also Gleason, 26 NY2d at 35 [recognizing the
The statute further creates a statute of limitations for these new causes of action. Pursuant to Domestic Relations Law § 210, "[n]o action for divorce or separation may be maintained on a ground which arose more than five years before the date of the commencement of that action for divorce or separation." Statutory exemptions to section 210 exist only for divorce actions based on abandonment, adultery or a separation decree, judgment or agreement ( see Domestic Relations Law § 210 [a]). While the statute makes the grounds and the period clear, it gives no indication as to when the limitations period begins to run against the plaintiff in a section 170 (3) action for divorce.
Defendant here essentially contends that, because
section 170 (3) does not permit an action for divorce until the
defendant has been confined for three years, the divorce action
on this ground arises for statute of limitations purposes only on
the date marking that third year. We reject this narrow
construction as inconsistent with the statutory scheme
(McKinney's Cons Law of NY, Book 1, Statutes § 96]; see also
The purpose of the requirement that the defendant be incarcerated for three years prior to the commencement of an action for divorce is to give the convicted party an opportunity to obtain release from prison and to prevent the "natural but sometimes too rash inclination to dissolve a marriage" upon a spouse's conviction (1968 Report of the Joint Legislative Committee on Matrimonial and Family Laws to the Legislature of the State of New York, at 89). Nothing in the legislative history suggests, however, that Domestic Relations Law § 170 3) was intended to start the statute of limitations running against the plaintiff spouse as early as possible so as to create the potential for a spouse, who may have missed the five-year window -- indeed, may have had young children and chose not to seek divorce earlier -- to unwillingly remain in a dead marriage.
Defendant's proposed construction of Domestic Relations Law § 170 (3) would have us foster these very perils by
establishing a rule that the statute of limitations may run
against a plaintiff to bar a divorce action while the defendant
remains incarcerated. Such a result would contravene the
Plaintiff further contends that the words "or more" in Domestic Relations Law § 170 (3) suggest that divorce actions based on imprisonment are actions involving recurring injuries to the parties which implicate the continuous wrong doctrine. We agree. This Court has applied the doctrine in certain cases such as nuisance or continuing trespass where the harm sustained by the complaining party is not exclusively traced to the day when the original objectionable act was committed ( see generally Jensen v General Electric Co., , 82 NY2d 77, 85 ; see also 509 Sixth Ave. Corp. v New York City Tr. Auth., , 15 NY2d 48 ; Sorrentino v Mierzwa, 30 AD2d 549  rev'd on other grounds , 25 NY2d 59 ). The rule is based on the principle that continuous injuries create separate causes of action barred only by the running of the statute of limitations against each successive trespass ( see Jensen, 82 NY2d at 85 [citations omitted]; see also 509 Sixth Ave., 15 NY2d at 52). The repeated offenses are treated as separate rights of action and the limitations period begins to run as to each upon its commission.
While this Court has never applied the continuous wrong
doctrine in the context of a divorce action, the Appellate
Division departments have consistently found the doctrine
Under a continuous wrong or violation rule, where a defendant spouse is incarcerated for a consecutive period exceeding three years, each day of continued confinement beyond three years inflicts new injury on the plaintiff spouse. Thus, although this ground for divorce arises originally at the conclusion of the third consecutive year of a defendant's incarceration, it continues to arise anew each day thereafter until the defendant is released from prison. An action based on this continuous wrong is barred only by the expiration of the five-year limitations period measured from the date upon which the defendant is released from prison.
Adopting a contrary rule -- that an action for divorce
based on imprisonment arises only once -- would further none of
the policy considerations at the heart of our statutes of
limitation jurisprudence. "Statutes of Limitation were 'designed
to promote justice by preventing surprises through the revival of
claims that have been allowed to slumber until evidence has been
In divorce actions predicated on confinement in prison these overriding policy concerns are not implicated; the only necessary proof is that the defendant has actually been incarcerated for three or more years -- easily shown by Department of Corrections records. There is no evidence to be lost or surprise to be had. On the other hand, there is a strong interest in giving the plaintiff the continued right to maintain a cause of action for divorce where "the marriage [has been] killed by separation" (1968 Report of the Legislative Committee on Matrimonial and Family Laws to the Legislature of the State of New York, at 27).
The balance is thus best struck by defining the accrual
date of plaintiff's cause of action from any time after the
conclusion of a defendant's three years of continuous
Accordingly, the order of the Appellate Division should be reversed, without costs, and the matter remitted to Supreme Court for further proceedings in accordance with this Opinion.