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Davis v. Davis

November 17, 2009

NOVEL DAVIS, APPELLANT,
v.
SHEPHERD DAVIS, RESPONDENT.



APPEAL by the plaintiff, in an action for a divorce and ancillary relief, from so much of an order of the Supreme Court (Robert A. Ross, J.), dated August 15, 2008, and entered in Nassau County, as granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the second cause of action for a divorce on the ground of constructive abandonment.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

MARK C. DILLON, J.P., HOWARD MILLER, JOHN M. LEVENTHAL and CHERYL E. CHAMBERS, JJ.

(Index No. 203111/07)

OPINION & ORDER DILLON, J.P.The issue on this appeal is whether the "social abandonment" of a spouse may qualify as "abandonment" and provide a ground for the dissolution of marriage under Domestic Relations Law § 170(2). We conclude that it does not.

The plaintiff, Novel Davis, commenced this action for a divorce and ancillary relief against her husband, Shepherd Davis, by the filing of an amended summons with notice dated November 5, 2007, and a verified complaint dated January 21, 2008. The complaint alleged two causes of action, one asserting cruel and inhuman treatment under Domestic Relations Law § 170(1) and a second asserting constructive abandonment under Domestic Relations Law § 170(2). The cause of action for cruel and inhuman treatment is not at issue here.

The second cause of action does not contain the allegations that are customarily seen in causes of action seeking divorce based on constructive abandonment, such as, that the defendant spouse had unjustifiably and continually refused to engage in sexual relations despite repeated demands by the plaintiff spouse. Rather, the complaint alleges that the husband refused to engage in social interaction with the wife by refusing to celebrate with her or acknowledge Valentine's Day, Christmas, Thanksgiving, and the wife's birthday, by refusing to eat meals together, by refusing to attend family functions or accompany the wife to movies, shopping, restaurants, and church services, by leaving her once at a hospital emergency room, by removing the wife's belongings from the marital bedroom, and by otherwise ignoring her. The parties have been married for 41 years and they reside at the same address.

The husband filed a pre-answer motion pursuant to CPLR 3211(a)(7) to dismiss the constructive abandonment cause of action and, alternatively, moved for summary judgment dismissing that cause of action pursuant to CPLR 3212. The husband, while contesting many of the wife's factual allegations of "social abandonment," argued that the complaint fails to state a cause of action for a divorce based on "constructive abandonment." The wife opposed dismissal arguing, inter alia, that social abandonment has been recognized as a ground for divorce in fairly recent trial-level decisions rendered by the Supreme Courts in Nassau, Queens, and Westchester Counties.

In the order appealed from, the Supreme Court granted that branch of the husband's motion which was pursuant to CPLR 3211(a)(7) dismiss the second cause of action for a divorce on the ground of social abandonment and, therefore, did not reach a summary judgment analysis under CPLR 3212. The Supreme Court held that the wife's "social abandonment" allegations "do not support a cognizable legal theory." We affirm.

Domestic Relations Law § 170 sets forth six statutory grounds on which a spouse may seek to divorce another. The abandonment ground for divorce, set forth in Domestic Relations Law § 170(2), provides that an action for a divorce may be maintained based upon "[t]he abandonment of the plaintiff by the defendant for a period of one or more years." Abandonment was recognized as a statutory ground for divorce in the Domestic Relations Law in 1966 (L 1966, ch 835, § 2), but had also been recognized in earlier statutes, CPA 1147 and 1156. The essence of abandonment is the refusal of one spouse to fulfill "basic obligations springing from the marriage contract" (Schine v Schine, 31 NY2d 113, 119; see Mirizio v Mirizio, 242 NY 74, 81).

A viable cause of action under Domestic Relations Law § 170(2) has been recognized in three different factual forms (see Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, CPLR C170:7). The first, not applicable here, involves a defendant spouse's actual physical departure from the marital residence that is unjustified, voluntary, without consent of the plaintiff spouse, and with the intention of the departing spouse not to return (see Kaplan v Kaplan, 46 AD3d 628). The second, also not applicable here, exists when the defendant spouse locks the plaintiff spouse out of the marital residence, absent justification or consent (see Schine v Schine, 31 NY2d 113, 119; Soldinger v Soldinger, 21 AD3d 469, 470; Carpenter v Carpenter, 278 AD2d 695, 696). The third is based on "constructive abandonment," which has been routinely defined as the refusal by a defendant spouse to engage in sexual relations with the plaintiff spouse for one or more years prior to the commencement of the action, when such refusal is unjustified, willful, and continual, and despite repeated requests for the resumption of sexual relations (see Chellappan v Murugan, 62 AD3d 929; Gulati v Gulati, 50 AD3d 1095, 1097; Meccariello v Meccariello, 46 AD3d 640, 641; Hathaway v Hathaway, 16 AD3d 458, 459).

The earliest interpretation by the Court of Appeals that arguably extended the notion of "abandonment" beyond its plain dictionary meaning arose in the 1926 case of Mirizio v Mirizio (242 NY 74). Mirizio involved a wife's refusal to consummate a civil marriage with her husband pending the conduct of a religious ceremony in which the husband refused to partake. The Court of Appeals held in Mirizio that a spouse's refusal to consummate a marriage constitutes a breach of the marriage contract, permitting the dissolution of the marriage itself (id. at 80-81). However, the facts of the case limited its applicability to the refusal to consummate a marriage, and did not necessarily extend to a spouse's refusal to engage in sexual relations after a consummation had occurred.

The law on marital abandonment remained quiet between 1926 and 1960. In the 1960 case of Diemer v Diemer (8 NY2d 206), the New York Court of Appeals engaged in a new and thorough discussion of constructive abandonment, resulting in a somewhat more expansive definition of that cause of action. Diemer involved a refusal by one spouse to continue sexual relations with the other spouse as a result of newly discovered religious concerns. The Court of Appeals noted that marriage "involves something far more fundamental than mere physical propinquity and, as a consequence, abandonment is not limited to mere technical physical separation" (id. at 210 [internal quotation marks omitted]). The criterion for abandonment, the Court continued, is how fundamentally the denial of a marital right strikes at the institution of marriage (id. at 210). The Court of Appeals concluded in Diemer that a refusal of one spouse to engage in sexual relations with the other spouse undermines the central structure of marriage, and qualifies as an abandonment that is constructive, rather than actual, in nature (id. at 210-211). Constructive abandonment, therefore, was cognizable when a plaintiff spouse could prove that the abandoning spouse unjustifiably and continually refused to fulfill this basic obligation arising from their marriage contract for a period of at least one year (see generally Diemer v Diemer, 8 NY2d at 210; Mirizio v Mirizio, 242 NY at 81; Biegeleisen v Biegeleisen, 253 AD2d 474, 475; Pascarella v Pascarella, 210 AD2d 915, 916; Lyons v Lyons, 187 AD2d 415, 416).

The law of marital abandonment returned to a period of quietude for 45 years following 1960. During those years, this Court never recognized constructive abandonment in any factual context other than that relating to the refusal of sexual relations (see e.g. Chellappan v Murugan, 62 AD3d at 929; Mehl v Mehl, 59 AD3d 402, 403; Reid v Reid, 57 AD3d 960; Warman v Warman, 52 AD3d 596, 597; Gulati v Gulati, 50 AD3d at 1097; Meccariello v Meccariello, 46 AD3d at 641; Hathaway v Hathaway, 16 AD3d at 459; Gonzalez v Gonzalez, 262 AD2d 281; Silver v Silver, 253 AD2d 756; Biegeleisen v Biegeleisen, 253 AD2d at 475; Tissot v Tissot, 243 AD2d 462; Lyons v Lyons, 187 AD2d at 416; Caprise v Caprise, 143 AD2d 968, 970). Constructive abandonment appears to have been similarly limited by reported cases from the Appellate Divisions of the First Department (see e.g. Haymes v Haymes, 252 AD2d 439; Wilson v Wilson, 101 AD2d 536; Weisman v Weisman, 93 AD2d 737), the Third Department (see e.g. Conrad v Conrad, 16 AD3d 795; Shortis v Shortis, 274 AD2d 880; Murphy v Murphy, 257 AD2d 798; Mikhail v Mikhail, 252 AD2d 772), and the Fourth Department (see e.g. Smith v Smith, 254 AD2d 788; Edward W.R. v Barbara A.R., 248 AD2d 964; Pascarella v Pascarella, 210 AD2d at 915). Indeed, we have found no appellate-level determination in this State, including by the Court of Appeals, which has applied constructive abandonment to factual allegations independent of the sexual component of marriage. Here, the wife argues nonetheless that her complaint states a cause of action for a divorce on the ground of constructive abandonment based upon the authority of two 2005 decisions--one from the Supreme Court, Nassau County, in C.P. v G.P. (6 Misc 3d 1034[A]), and one from the Supreme Court, Queens County, in Michaelessi v Michaelessi (10 Misc 3d 1067[A]). The amended complaint in C.P. v G.P. alleged a cause of action for constructive abandonment based upon allegations that the defendant husband continually refused to engage in sexual relations, despite demands, and without justification, for the requisite year. An additional cause of action, denominated as one for cruel and inhuman treatment, contained allegations remarkably similar to those at issue here; namely, that the husband refused to celebrate various family events and holidays with his wife, refused to eat meals with her, refused to attend social events with her, and maintained a separate bedroom. The Supreme Court held, in C.P. v G.P., that while the second cause of action did not adequately state grounds for cruel and inhuman ...


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