Sex Versus Society

In last month's newsletter, we began discussion of a decision from New York's Appellate Division, Second Department, in which the court concluded that the concept of constructive abandonment could not be extended to permit divorce due to social, rather than sexual, abandonment. The case, Davis v. Davis, 2009 NY Slip Op 08579, 2009 WL 3873026, was decided in accordance with the majority of similar cases that had come before it. But did the court make the correct decision?

Problems to Consider

The fourth factor the court discussed in Davis is really the heart of the matter, and the reason the case was decided as it was. The Davis court, relying on Diemer v. Diemer, 9 NY2d 206 (1960), rejected the idea that social abandonment equates to sexual abandonment as a violation of the marriage contract because social interaction and sexual interaction are not given the same legal status within a marriage. The court cited DRL ' 140 (d), which permits an annulment based on a party's incurable physical incapacity for sexual relations, and Penal Law ' 255.17, which criminalizes adultery, and observes that social interaction between spouses is not given the same legal recognition (although it is unclear why social interaction would require legal recognition).

However, several paragraphs earlier, the Davis court, in its discussion of the Diemer decision, quoted the following: “[M]arriage 'involves something far more fundamental than mere physical propinquity and, as a consequence, abandonment is not limited to mere technical physical separation.'” In Diemer, the Court of Appeals further observed that “the essence of desertion or abandonment ' is a refusal on the part of one spouse to fulfill basic obligations springing from the marriage contract. Obviously not every denial of a marital right will be sufficient to support a charge of abandonment. The criterion is how fundamentally the denial strikes at the civil institution of marriage. Where primary rights and duties are involved, where the denial goes to one of the foundations of the marriage, it is the policy of our law to allow a separation from bed and board.” 8 NY2d at 210 (internal quotes and citation omitted). One could argue that, applying the principles identified by the Court of Appeals in Diemer, social abandonment, as alleged in Davis, constitutes a denial of a “foundation of the marriage.” Certainly, for many people, the social aspect of marriage is as important, if not more so, as the sexual.

A Similar Case

In C.P. v. G.P., 6 Misc. 3d 1034(A) (Sup. Ct. Nassau Cty. 2005), Justice Anthony Falanga relied precisely on the reference in Diemer to “basic obligations” of a marriage when he held that the wife's allegations set forth a viable cause of action for divorce on the grounds of abandonment where the husband “refused to eat a meal with the wife or eat a meal prepared by her ' refused to celebrate holidays with plaintiff or participate in relatives' birthday celebrations, including hers or the parties' three children's birthdays, he refused to attend the funerals of [the wife's father, mother and nephew] ' ; he refused to attend the parties' children's graduation parties,” etc. Justice Falanga held that by “refusing to engage in any form of social interaction” with the plaintiff, the defendant “unquestionably failed to fulfill a basic obligation arising from the marriage contract,” and had abandoned the plaintiff. Justice Falanga went on to observe that the Court of Appeals, in Diemer, “did not restrict its definition of abandonment to the denial of conjugal rights.”

Practical Realities

Furthermore, much has changed in both the institution of marriage and in the practical realities of sexual interaction since the Diemer decision in 1960. Thus, while sexual relations are afforded the same legal rights within a marriage as they were 50 years ago, sexual relations outside of a marriage are more socially acceptable, if not common, than they were at the time of the Diemer decision. Therefore, the reliance on the legal protections afforded sexual relations within a marriage seems rather outdated.

The final concern raised by the Davis court is a more practical one: the difficulty of defining social abandonment and the likely overlap with sexual abandonment cases. The fact pattern in Davis and the two trial court cases from the Second Department that granted divorces on the basis of social abandonment have many similarities. (C.P. v. G.P. is discussed above.

The holding in that case was adopted by Justice Strauss in Michaelessi v. Michaelessi, 10 Misc.3d 1067 (A), 814 NYS2 562 (Sup. Ct. Queens Cty. 2005), where the parties had no social interaction, “never doing anything together, never attending any social functions or affairs together, never celebrating anniversaries together, never going out to dinner,” etc.) Furthermore, as regards issues of proof, the plaintiff in a social abandonment case will be better served than a plaintiff could be in a sexual abandonment case, as he or she would be more likely to have witnesses to the very acts constituting the abandonment than a party who is claiming sexual abandonment. In a sexual abandonment case, the outcome of a contested trial rests on the credibility (or believability) of each of the parties, since third-party witnesses to bedroom behavior are unlikely to be found. Finally, one could argue that similar difficulties persist in defining cruel and inhuman treatment as a ground for divorce, but that has not inhibited the courts from determining whether sufficient cruelty exists to warrant a divorce based on the facts presented.

Conclusion

It seems that with a slightly different spin on the law, the Davis court could have easily supported, rather than rejected, the concept of social abandonment as grounds for divorce in New York. Surely, those who suffer social abandonment may think themselves at least as badly treated as those who suffer sexual abandonment in a marriage. Each is hurtful and relationship destroying, in its own way. One can only hope that the Court of Appeals is given the opportunity to take up this issue.

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.

In last month's newsletter, we began discussion of a decision from New York's Appellate Division, Second Department, in which the court concluded that the concept of constructive abandonment could not be extended to permit divorce due to social, rather than sexual, abandonment. The case, Davis v. Davis , 2009 NY Slip Op 08579, 2009 WL 3873026, was decided in accordance with the majority of similar cases that had come before it. But did the court make the correct decision?

Problems to Consider

The fourth factor the court discussed in Davis is really the heart of the matter, and the reason the case was decided as it was. The Davis court, relying on Diemer v. Diemer , 9 NY2d 206 (1960), rejected the idea that social abandonment equates to sexual abandonment as a violation of the marriage contract because social interaction and sexual interaction are not given the same legal status within a marriage. The court cited DRL ' 140 (d), which permits an annulment based on a party's incurable physical incapacity for sexual relations, and Penal Law ' 255.17, which criminalizes adultery, and observes that social interaction between spouses is not given the same legal recognition (although it is unclear why social interaction would require legal recognition).

However, several paragraphs earlier, the Davis court, in its discussion of the Diemer decision, quoted the following: “[M]arriage 'involves something far more fundamental than mere physical propinquity and, as a consequence, abandonment is not limited to mere technical physical separation.'” In Diemer, the Court of Appeals further observed that “the essence of desertion or abandonment ' is a refusal on the part of one spouse to fulfill basic obligations springing from the marriage contract. Obviously not every denial of a marital right will be sufficient to support a charge of abandonment. The criterion is how fundamentally the denial strikes at the civil institution of marriage. Where primary rights and duties are involved, where the denial goes to one of the foundations of the marriage, it is the policy of our law to allow a separation from bed and board.” 8 NY2d at 210 (internal quotes and citation omitted). One could argue that, applying the principles identified by the Court of Appeals in Diemer, social abandonment, as alleged in Davis, constitutes a denial of a “foundation of the marriage.” Certainly, for many people, the social aspect of marriage is as important, if not more so, as the sexual.

A Similar Case

In C.P. v. G.P. , 6 Misc. 3d 1034(A) (Sup. Ct. Nassau Cty. 2005), Justice Anthony Falanga relied precisely on the reference in Diemer to “basic obligations” of a marriage when he held that the wife's allegations set forth a viable cause of action for divorce on the grounds of abandonment where the husband “refused to eat a meal with the wife or eat a meal prepared by her ' refused to celebrate holidays with plaintiff or participate in relatives' birthday celebrations, including hers or the parties' three children's birthdays, he refused to attend the funerals of [the wife's father, mother and nephew] ' ; he refused to attend the parties' children's graduation parties,” etc. Justice Falanga held that by “refusing to engage in any form of social interaction” with the plaintiff, the defendant “unquestionably failed to fulfill a basic obligation arising from the marriage contract,” and had abandoned the plaintiff. Justice Falanga went on to observe that the Court of Appeals, in Diemer, “did not restrict its definition of abandonment to the denial of conjugal rights.”

Practical Realities

Furthermore, much has changed in both the institution of marriage and in the practical realities of sexual interaction since the Diemer decision in 1960. Thus, while sexual relations are afforded the same legal rights within a marriage as they were 50 years ago, sexual relations outside of a marriage are more socially acceptable, if not common, than they were at the time of the Diemer decision. Therefore, the reliance on the legal protections afforded sexual relations within a marriage seems rather outdated.

The final concern raised by the Davis court is a more practical one: the difficulty of defining social abandonment and the likely overlap with sexual abandonment cases. The fact pattern in Davis and the two trial court cases from the Second Department that granted divorces on the basis of social abandonment have many similarities. (C.P. v. G.P. is discussed above.

The holding in that case was adopted by Justice Strauss in Michaelessi v. Michaelessi , 10 Misc.3d 1067 (A), 814 NYS2 562 (Sup. Ct. Queens Cty. 2005), where the parties had no social interaction, “never doing anything together, never attending any social functions or affairs together, never celebrating anniversaries together, never going out to dinner,” etc.) Furthermore, as regards issues of proof, the plaintiff in a social abandonment case will be better served than a plaintiff could be in a sexual abandonment case, as he or she would be more likely to have witnesses to the very acts constituting the abandonment than a party who is claiming sexual abandonment. In a sexual abandonment case, the outcome of a contested trial rests on the credibility (or believability) of each of the parties, since third-party witnesses to bedroom behavior are unlikely to be found. Finally, one could argue that similar difficulties persist in defining cruel and inhuman treatment as a ground for divorce, but that has not inhibited the courts from determining whether sufficient cruelty exists to warrant a divorce based on the facts presented.

Conclusion

It seems that with a slightly different spin on the law, the Davis court could have easily supported, rather than rejected, the concept of social abandonment as grounds for divorce in New York. Surely, those who suffer social abandonment may think themselves at least as badly treated as those who suffer sexual abandonment in a marriage. Each is hurtful and relationship destroying, in its own way. One can only hope that the Court of Appeals is given the opportunity to take up this issue.

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.