Consodine, J.c.c. (temporarily assigned).
Plaintiff proves a case on her amended complaint in separation and defendant on his counterclaim in adultery. Defendant separated himself from plaintiff on her admission of an adulterous pregnancy.
This court has the power, where both parties make out a cause of action, to grant a decree to each N.J.S.A. 2A:34-7. Should it exercise that power on these facts? The statute is mute in this regard.
The statute (N.J.S.A. 2A:34-23) does, however, in another regard (alimony) provide that, except where judgment of divorce is granted solely on the ground of separation, the court may consider the proofs of marital fault of either party in determining an amount of alimony or maintenance that is fit, reasonable, and just. The analogy is only helpful. Which ground of those presented here should invoke the exercise of judicial discretion?
Of the grounds established in this case, adultery is the more heinous because it is abhorrent to religious beliefs, abhorrent in our literature (a history of the aeons of time and custom), and abhorrent in its very connotation -- adulteration of the issue. Old Testament (King James Version), Exodus XX, 13 and 17; New Testament, Matthew V , 28; Shakespeare, King Lear , Act III, scene 6, line 18; Hawthorne, The Scarlet Letter. Moreover, it is unbelievable that the Legislature intended to penalize the fault-free
marriage partner and to reward the offending one. Additionally, the ground of adultery had accrued long prior to that of separation.
There will be judgment of divorce to counterclaim on this phase of the case.
Plaintiff also seeks an award so as to effectuate an equitable distribution of the property, both real and personal, which was legally and beneficially acquired by them or by defendant during the marriage. N.J.S.A. 2A:34-23. Defendant argues, technically, that the statute is unconstitutional, and substantively that the pertinent portion having to do with equitable distribution of property acquired during this marriage is unconstitutional.
The former argument is predicated on N.J. Const. (1947), Art. IV, § VII, par. 4 ("* * * every law shall embrace but one object, and that shall be expressed in the title * * *"). Defendant argues that Ch. 212, L. 1971, c. 212, is entitled, "An act concerning actions for divorce and nullity of marriage, alimony, maintenance and custody of children," and that nowhere does the title encompass remedial action in other areas of the law.
Substantively, defendant argues that while courts have the power to make their judgments prospective or retrospective in nature, citing Darrow v. Hanover Tp. , 58 N.J. 410, 413 (1971); Fox v. Snow , 6 N.J. 12 (1950), the Legislature has no such power but, to the contrary, statutes must be deemed operative in futuro only, citing Penn. Greyhound Lines v. Rosenthal , 14 N.J. 372, 381 (1954); and further that statutes relating to substantive rights are construed to operate only prospectively, citing Neel v. Ball , 6 N.J. 546, 551 (1941); Nichols v. Board of Education of Jersey City , 9 N.J. 241, 248 (1952); Crucible Steel, etc. v. Polack Tyre & Rubber Co. , 92 N.J.L. 221, 231 (E. & A. 1918); La Parre v. Y.M.C.A. , 30 N.J. 225, 229 (1959), and that the provision of the statute in contest (N.J.S.A. 2A:34-23) is violative of the 14th Amendment of the United States Constitution and of Art. I, par. 1, of our
State Constitution in that it seeks social reform at the unconstitutional ...