A Nassau Supreme Court Justice rejected a man's petition for divorce on the grounds of abandonment. The husband claimed that his wife refused to have sex with him for almost 12 years. Meanwhile, the wife's testimony undermined and counteracted her husband's. She refuted her spouse's claims, stating that she was actually going to resume sexual relations with him despite his current residence with another woman, whom he had dated during their marriage. The wife brings further conflicting evidence to the table as she describes their usual infrequency of sexual relations due to the husband's bad liver. Because the wife's statements were equally as credible as her husband's, the judge had no choice but to dismiss the action on the basis of "the [wife's] conflicting testimony and the husband's failure to establish fault."
This case reveals the problem with requiring grounds for divorce. In this case, the husband attempted to prove abandonment. He was unsuccessful because it is difficult to find evidence for and to prove beyond a doubt that the wife refused him sex. The sexual relationship between a husband and a wife is a private matter, in which a witness would be almost impossible to find. In the end, it is "one spouse's words against another's."
This sparks interest in light of the recent passing of the no-fault divorce bill in New York. This revolutionary bill permits divorce after a marriage has been deemed "irretrievably broken down for at least six months or more." This bill eliminates the need to identify a fault, such as abandonment. In accordance with this new bill, the aforementioned case would have been simply settled by stating that the relationship was beyond repair; the marriage would have been dissolved without putting either spouse at fault.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
Before this court is a grounds trial which was conducted on April 21, 2010. The verifiecomplaint consist of one cause of action, Constructive Abandonment.
Plaintiff, J.S., and defendant, D.S., were married in a civil ceremony on November 21, 1989. This action was commenced on November 9, 2009. Plaintiff has been a resident of the State of New York for a continuous period of two years immediately prior to the commencement of this action. At the time of the marriage, both parties were over the age of 18. No judgments of divorce, separation or annulment have been granted to either party in this state or any other jurisdiction. There is one emancipated child of this marriage, whose date of birth is May 8, 1979, who resides in Atlanta, GA and no other children are expected. The marriage between the parties was not solemnized by a person specified in Domestic Relations Law §11(1). There is no other action or proceeding for a divorce or other dissolution of the said marriage of the parties pending in this or any other jurisdiction.
The verified complaint alleges that the parties have not sexually cohabited with each other as husband and wife for a period commencing on September 1, 1998 and continuing through the present time and during the said period of time the defendant has not so sexually cohabited or engaged in sexual relations with the plaintiff as husband and wife despite the plaintiff's willingness and despite his repeated requests to do so. That the defendant's refusal to so sexually cohabit with the plaintiff and engage in sexual relations with the plaintiff was not caused or provoked by any conduct on the part of the plaintiff and said conduct of the defendant was without the plaintiff's consent. Upon information and belief, the defendant has not suffered from any mental or physical disability that would prevent or inhibit the defendant from so sexually cohabiting and engaging in sexual relations with the plaintiff. By reason of the foregoing, the said conduct on the part of the defendant constitutes a constructive abandonment of the plaintiff.
Plaintiff testified that his current address is X, NY and that the defendant resides at the marital residence located at X, NY, that the parties resided at that residence for 13 years from 1988 until 2001. Plaintiff testified that all information in the verified complaint was true to the best of his knowledge and that the allegations were still true as of the date of this grounds trial. Plaintiff testified that he is presently married to defendant and that their date of marriage was on November 21, 1989 and the marriage was performed in Queens Court, he has one child with defendant, her date of birth is May 8, 1979 and she is 31 years of age and self supporting. Defendant still resides at X, NY.
Plaintiff testified that he and the defendant enjoyed a satisfactory sexual relationship from 1988 through 1998. Plaintiff also testified that they stopped having sexual relations on or about September 1, 1998 when the relationship deteriorated. Plaintiff testified that he would initiate sexual relations on occasion after taking defendant out to dinner, drinking or being out with friends. Plaintiff stated that defendant infrequently initiated sexual relations. Plaintiff testified that there was never a time that he refused defendant sexual relations. Plaintiff testified that defendant refused him sexual relations for no valid reason. Plaintiff testified that even after defendant refused to have sexual relations, that he tried to have conversations with defendant regarding same. Plaintiff and defendant belong to Jehovah Witness and plaintiff sort the advise of the Elders as to how to handle the deterioration of his marriage.
Plaintiff removed himself from the marital residence on or about June or July 2001. Plaintiff testified that the defendant's mental and physical health appeared normal and that there was no cause not to have sexual relations. Plaintiff testified that he made several attempts on various occasion to have sexual relations with defendant. He would take her to dinner, bring her flowers, take her out for drinks with friends, go away to the Pocono's with friends from their Jehovah Witness fellowship, but defendant still refused to have sexual relations with plaintiff.
Upon cross examination of the plaintiff, he first stated that he stopped having sexual relations with the defendant in 2000 then changed it to 1998, however, he left in June or July of 2001. Plaintiff was questioned as to his 2008 Federal Income Tax return wherein he has his current girlfriend listed as a dependant/sister. Defendant's counsel questioned plaintiff as to his health and defendant's health and stated that in his prior testimony, he stated that they were both in good health. Defendant's counsel did point out that defendant, does in fact, have hepatitis B which is a communicable disease and could be spread through sexual relations, to which plaintiff agreed. Plaintiff was questioned as to who X is and he stated that she is his girlfriend of the past 9 or 10 years and that he currently resides with her. When asked why plaintiff's 2008 Federal Tax Return lists Ms. X as an exemption and as the plaintiff's sister, plaintiff stated that it must be a mistake.
Defendant testified on direct examination that she was present during plaintiff's testimony and based upon her knowledge, the plaintiff's testimony was not true. Defendant testified that she never denied plaintiff sexual relations and that on several occasion when she initiated sexual relations, plaintiff refused. Defendant testified that they had an active sexual relationship up until when the plaintiff left the marital residence which was in June 2001. Defendant further testified that on one occasion, after sexual relations, plaintiff fell asleep and defendant looked at his cell phone which was unlocked and she called the phone number for X. Defendant and Ms. X had a long conversation and when plaintiff awoke, defendant presented plaintiff with his telephone. When plaintiff realized that the defendant and Ms. X had conversed, it was at that time that plaintiff left the marital residence.
Defendant acknowledged that the sexual relationship was infrequent, however, she stated that plaintiff was not that physical of a person and that she was okay with the
infrequent sex as plaintiff's liver is not in good shape as a result of the hepatitis B.
Defendant stated that she never refused to have sexual relations with defendant and that she was always willing to resume her sexual relationship with the defendant and does not want to pursue a divorce.
After plaintiff admitted to his relationship with Ms. X, defendant went to her doctor
and was told that she had a vaginal infection. As plaintiff and defendant had a doctor in
common, the doctor advised defendant that she should receive an injection because of her husband's hepatitis B. Defendant refused the injection due to plaintiff removing himself from the marital residence. Defendant states that she did not request plaintiff leave. Defendant stated that she has been lied to before and that her heart is not in this divorce. She forgives her husband and has always been willing to have and resume sexual relations with defendant.
Constructive Abandonment
"It is well settled that to establish a cause of action for a divorce on the ground of constructive abandonment, the spouse who claims to have been constructively abandoned must prove that the abandoning spouse unjustifiably refused to fulfill the basis obligations arising from the marriage contract and that the abandonment continued for at least one year" (Lyons v. Lyons, 187 A.D.2d 415, 416, 589 N.Y.S.2d 557 (2nd Dept. 1992); see also, George M. v. Mary Ann M., 171 A.D.2d 651, 651-652, 567 N.Y.S.2d 132 (2d Dept. 1991); Caprise v. Caprise, 143 A.D.2d 968, 970, 533 N.Y.S.2d 622 (2nd Dept. 1988). In order to rise to the level of constructive abandonment, the refusal must be "unjustified, willful, and continued, despite repeated requests from the other spouse for resumption of cohabitation'" (Caprise v. Caprise, supra, at 970, 533 N.Y.S.2d 622 quoting Scheinkman, Practice Commentaries, McKinney Cons. Laws of N.Y. Book 14, Domestic Relations Law C170:7, at 608 [emphasis in original]). Where there is no proof that one spouse repeatedly requested a resumption of sexual relations, evidence that the other spouse refused a single request to engage in sexual relations is insufficient to sustain a cause of action for divorce on the grounds of constructive abandonment (see, Caprise v. Caprise, supra,
Silver v. Silver, 253 A.D.2d 756, 677 N.Y.S.2d 593 (2nd Dept. 1998). Evidence that a party refused sexual relations for the required period and that the refusal was willful, continued, and unjustified would be sufficient (see Gulati v. Gulati, 50 A.D.3d 1095, 857 N.Y.S.2d 643 (2nd Dept. 2008); Ostriker v. Ostriker, 203, A.D.2d 343, 344-45, 609 N.U.S.2d 922, (2nd Dept. 1994); Gunn v. Gunn, 143 A.D.2d 393, 532 N.Y.s.2d 556 (2nd Dept. 1998); Benarroch v. Benarroch, 55 A.D.2d 943, 391 N.Y.S.2d 138 (2nd Dept. 1977).
The party seeking the divorce has the burden of demonstrating marital misconduct. See, Salomon v. Salomon, 102 Misc.2d 427, 423 N.Y.S.2d 605 (Sup. Ct. Suffolk Co. 1979) (generally); and Wolfson v. Wolfson, 39 A.D.2d 724, 331 N.Y.S.2d 844 (2nd Dept.).app.
dism., 31 N.Y.S.2d 671, 336 N.Y.S.2d 907, 288 N.E.2d 808 (1972) (with regard to abandonment). Entitlement to a divorce for construction abandonment must be based upon a showing in part, that the refusal to engage in marital relations is unjustified, willful and continuous. Diemer v. Diemer, 8 N.Y.2d 206, 203 N.Y.S.2d 829, 168 N.E.2d 654 (1960). See, also, Chase v. Chase, 208 A.D.2d 883, 618 N.Y.S.2d 94 (2nd Dept. 1994); and Lyons v. Lyons, 187 A.D.2d 415, 416, 589 N.Y.S.2d 557 (2nd Dept. 1992).
To determine whether a witness is telling the truth is sometimes a difficult issue for the Court to decide. In the instant action, both the plaintiff and the defendant seemed credible. Their demeanor and testimony seemed truthful, but since they both testified to a different set of facts regarding the same events only one can be telling the truth.
In a similar case, (Sullivan v. Sullivan, 180 Misc.2d 433, 440, 689 N.Y.S.2d 378, 383 (Sup. Ct. Suffolk Co. 1999)), the Judge eloquently described this type of testimony as follows: "Only two witnesses testified on the trial of this matter: the parties. On the one hand, plaintiff testified that he requested and was rebuffed. On the other, defendant testified to an active sexual relationship until ... [the defendant moved out.] On balance, these competing versions of the relationship of the parties, in and of itself, is a wash. Put another way, plaintiff has not established a fair preponderance of the credible evidence that there was a constructive abandonment here. Where there is an even balance of evidence, the Court is required to find for defendant. See, Rinaldi & Sons, Inc.
v. Wells Fargo Alarm Service, Inc., 39 N.Y.2d 191, 383 N.Y.S.2d 256, 347 N.E.2d 618 (1976)."
As a result of the foregoing and adopting the controlling case law cited above, this Court finds that the plaintiff simply has not met his burden of proof to establish grounds for a divorce pursuant to DRL §170(2).
The only two (2) witnesses that testified were the parties herein. The plaintiff testified he requested to have sexual relations with the defendant and was refused. The defendant testified she enjoyed having sexual relations with the plaintiff and did not refuse and was still willing to have sexual relations.
For the foregoing reasons, the action is dismissed.
This constitutes the decision and Order of the Court.
Dated: May 24, 2010
Mineola, New York