Sex Versus Society

Late last year, the Appellate Division, Second Department, was confronted with the question of whether the judicially created concept of “constructive abandonment” could be expanded beyond its historic definition of sexual abandonment to include a persistent unrelenting pattern of social abandonment of a spouse. The court declined to expand the concept and held in Davis v. Davis, 2009 NY Slip Op 08579, 2009 WL 3873026, that social abandonment did not constitute a valid ground for divorce in New York.

The court based its determination on five factors, noting that any of them “supports the conclusion that 'social abandonment' is not a recognized ground for divorce” in New York. In the Davis decision, the court offered a very thorough and detailed review of the history of constructive abandonment, and anticipated many of the questions and concerns that the matrimonial bar would raise in response to its ruling; however, after a careful read of the decision, many questions remain as to why the concept of constructive abandonment should not be expanded at this time.

The Case and the Court's Reasoning

According to the Appellate Division, the complaint in Davis, following a 41-year marriage, alleged 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 the hospital emergency room, by removing the wife's belongings from the marital bedroom, and by otherwise ignoring her.”

'Irreconcilable Differences'

The first factor the Davis court weighed against the expansion of the concept of constructive abandonment is that social abandonment is simply another way of saying “irreconcilable differences,” or stating that the marriage is dead, neither of which are cognizable grounds for divorce in New York. In support of this concept, the Appellate Division cited nine decisions in which a divorce was denied, even though the court described the marriage as “dead.” However, the allegations in those cases are very different from the allegations in Davis. To the extent that any factual background is provided, those cases appear to be based on cruelty, as the allegations are, for example, of disparagement and pushing (MM v. MM, 203 A.D.2d 883 (3rd Dept 1994); lack of communication and intimacy (Matthews v. Matthews, 238 AD2d 926 (4th Dept. 1997); or incidents of physical violence (Wilkinson v. Wilkinson, 149 AD2d 842 (3rd Dept. 1989). This is a far cry from the social isolation that Mr. Davis allegedly forced on Mrs. Davis. It appears that “dead marriage” and “social abandonment” are two very different concepts, a distinction the Davis court failed to acknowledge or, perhaps, comprehend.

Sexual Abandonment

The second factor considered by the court in the Davis decision is that constructive abandonment has meant only sexual abandonment for nearly 50 years, since the concept was first recognized by the Court of Appeals in Diemer v. Diemer, 9 NY2d 206 (1960). The Davis court noted that, in addition to this longevity, it was also constrained by the plain language of the statue, and in the presence of ambiguity was required to consider the legislative intent. Although the court observed that “there is no legislative history, debate of expressed intention that could convince [it] to expand the definition” of abandonment to include social abandonment, one wonders how this expansion of abandonment is any less consistent with the statutory language than the original creation of the constructive abandonment concept was in Diemer? The same could be asked with respect to the Davis court's third factor, which is that recognition of social abandonment would constitute “judicial usurpation of legislative authority.”

Conclusion

In next month's issue we will discuss the remaining factors considered by the Davis court when deciding not to expand the concept of constructive abandonment to include social abandonment. We will also look at why that reasoning may have led the court to the wrong conclusion.

Karen M. Platt, a member of the New York and New Jersey Bars, is an attorney with Mayerson Stutman Abramowitz, LLP, an eight-lawyer firm that limits its practice to matrimonial, divorce and family law issues. The firm maintains offices in Manhattan and White Plains.

Late last year, the Appellate Division, Second Department, was confronted with the question of whether the judicially created concept of “constructive abandonment” could be expanded beyond its historic definition of sexual abandonment to include a persistent unrelenting pattern of social abandonment of a spouse. The court declined to expand the concept and held in Davis v. Davis , 2009 NY Slip Op 08579, 2009 WL 3873026, that social abandonment did not constitute a valid ground for divorce in New York.

The court based its determination on five factors, noting that any of them “supports the conclusion that 'social abandonment' is not a recognized ground for divorce” in New York. In the Davis decision, the court offered a very thorough and detailed review of the history of constructive abandonment, and anticipated many of the questions and concerns that the matrimonial bar would raise in response to its ruling; however, after a careful read of the decision, many questions remain as to why the concept of constructive abandonment should not be expanded at this time.

The Case and the Court's Reasoning

According to the Appellate Division, the complaint in Davis, following a 41-year marriage, alleged 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 the hospital emergency room, by removing the wife's belongings from the marital bedroom, and by otherwise ignoring her.”

'Irreconcilable Differences'

The first factor the Davis court weighed against the expansion of the concept of constructive abandonment is that social abandonment is simply another way of saying “irreconcilable differences,” or stating that the marriage is dead, neither of which are cognizable grounds for divorce in New York. In support of this concept, the Appellate Division cited nine decisions in which a divorce was denied, even though the court described the marriage as “dead.” However, the allegations in those cases are very different from the allegations in Davis. To the extent that any factual background is provided, those cases appear to be based on cruelty, as the allegations are, for example, of disparagement and pushing ( MM v. MM , 203 A.D.2d 883 (3rd Dept 1994); lack of communication and intimacy ( Matthews v. Matthews , 238 AD2d 926 (4th Dept. 1997); or incidents of physical violence ( Wilkinson v. Wilkinson , 149 AD2d 842 (3rd Dept. 1989). This is a far cry from the social isolation that Mr. Davis allegedly forced on Mrs. Davis. It appears that “dead marriage” and “social abandonment” are two very different concepts, a distinction the Davis court failed to acknowledge or, perhaps, comprehend.

Sexual Abandonment

The second factor considered by the court in the Davis decision is that constructive abandonment has meant only sexual abandonment for nearly 50 years, since the concept was first recognized by the Court of Appeals in Diemer v. Diemer , 9 NY2d 206 (1960). The Davis court noted that, in addition to this longevity, it was also constrained by the plain language of the statue, and in the presence of ambiguity was required to consider the legislative intent. Although the court observed that “there is no legislative history, debate of expressed intention that could convince [it] to expand the definition” of abandonment to include social abandonment, one wonders how this expansion of abandonment is any less consistent with the statutory language than the original creation of the constructive abandonment concept was in Diemer? The same could be asked with respect to the Davis court's third factor, which is that recognition of social abandonment would constitute “judicial usurpation of legislative authority.”

Conclusion

In next month's issue we will discuss the remaining factors considered by the Davis court when deciding not to expand the concept of constructive abandonment to include social abandonment. We will also look at why that reasoning may have led the court to the wrong conclusion.

Karen M. Platt, a member of the New York and New Jersey Bars, is an attorney with Mayerson Stutman Abramowitz, LLP, an eight-lawyer firm that limits its practice to matrimonial, divorce and family law issues. The firm maintains offices in Manhattan and White Plains.