Opinion
1385/04.
Decided December 9, 2005.
I. BACKGROUND
Plaintiff Adaymee Michaelessi and defendant Charles Michaelessi were married on December 26, 1963. The parties had two children of the marriage, now both emancipated. Plaintiff is presently 64 years of age; defendant is age 72. Both parties currently reside in the marital residence, a two bedroom apartment in Douglaston, New York.
II. PROCEDURAL HISTORY
This action for divorce was commenced by service of a Summons with Notice and a Verified Complaint on February 14, 2004. Plaintiff's causes of action for divorce were based on (1) the alleged constructive abandonment of the plaintiff by the defendant pursuant to Domestic Relations Law § 170 and (2) the alleged cruel and inhuman treatment she suffered at the hands of the defendant pursuant to Domestic Relations Law § 170. Defendant appeared and served a timely Verified Answer.
On May 19, 2005, a hearing was held on the issue of grounds. Based on the testimony adduced, defendant's motion to dismiss plaintiff's second cause of action, for alleged cruel and inhuman treatment, was granted. Defendant's motion to dismiss plaintiff's first cause of action, for abandonment, was denied at the close of plaintiff's case; decision on defendant's reiteration of said motion was reserved at the close of defendant's case. Said decision is as follows:
As stated in Lyons v. Lyons [ 187 AD2d 415, 589 NYS2d 557 (2d Dept 1992)], "[i]t 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 basic obligations arising from the marriage contract and that the abandonment continued for at least one year. The refusal must be unjustified, willful, and continued despite repeated requests for continued conjugal relations." Id. at 416, 559 (citations omitted). The rationale behind the constructive nature of the abandonment is not limited to the "technical physical separation" of the parties but that the "essence of desertion or abandonment" is a refusal to fulfuill a "basic obligation springing from the marital contract." See, Diemer v. Diemer, 8 NY2d 206, 203 NYS2d 829 (1960).
Although characterized as an abandonment of marital relations, constructive abandonment has heretofore been limited to an unwanted withholding of sexual relations. Id.; see also, Hathaway v. Hathaway, 16 AD3d 458, 791 NYS2d 631 (2nd Dept 2005); Murphy v. Murphy, 257 AD2d 798, 683 NYS2d 650 (3rd Dept 1999); Smith v. Smith, 254 AD2d 788, 677 NYS2d 847 (4th Dept 1998). Nonetheless, this court can find no previous appellate limitation to that one aspect of the marital relationship as the sole determinative factor in supporting a finding of constructive abandonment. Nor can the court fathom a rationale for that same proposition. Another element that serves as a necessary, fundamental component of a marriage is the requirement that a married individual serve as a social companion to his or her spouse. A marriage in which one spouse refuses to engage in any social interaction, despite repeated requests, is just as much a "desertion or abandonment" of a "basic obligation springing from the marital contract" as one in which there are no sexual relations.
The court, accordingly, elects to follow the holding in C.P. v. G.P. [6 Misc 3d 1034(A), 800 NYS2d 343 (Sup Ct, Nassau County)]. In that matter, Justice Anthony J. Falanga, in denying defendant husband's motion to dismiss plaintiff wife's cause of action for abandonment, held that a cause of action for constructive abandonment was properly premised on the defendant's failure to engage in any "social intercourse" with the plaintiff for the requisite period.
The court recognizes that there is no bright line standard establishing an entitlement to a judgment based on constructive abandonment, especially where there is conflicting testimony by the parties. The totality of the circumstances must be observed, including whether attempts at reconciliation were made in good faith, who initiated such attempts and what the party's motivation may have been in making such attempts. See, Haymes v. Haymes, 252 AD2d 439, 675 NYS2d 593 (1st Dept 1998) (unsuccessful attempt at reconciliation as basis to defeat a claim of constructive abandonment).
Here, the plaintiff testified that she and the defendant have not cohabited since 1995, having slept in separate bedrooms. The sole exception was a trip to Las Vegas, which plaintiff described as "a bad time," punctuated by constant fighting and in which the parties slept in separate beds. Plaintiff's testimony recounted attempts to resume marital relations, all of which met with a refusal and lack of communication on defendant's part.
Plaintiff recounted continuous conduct, beginning in 1995, that included never doing anything together, never attending any social functions or affairs together, never celebrating anniversaries together, never going out to dinner, never going dancing and never going to the beach. The parties' last foray to the movies together resulted in a fight because plaintiff wanted popcorn but defendant refused to buy it for her. The sole social activity that plaintiff and defendant engaged in was playing paddle ball, which plaintiff stopped attending approximately 15 years prior to the trial due to defendant's alleged abusive behavior in the company of others.
Plaintiff described how each of the parties' attended the funerals of plaintiff's father, a friend and a sister-in-law by going in separate vehicles. This was also true for family functions, a Saint Gregory's feast and the flea market. Plaintiff told of how she would go alone or with a friend and how she might see defendant at the particular location but that he would only observe and never communicate with her.
In depicting the parties' sexual relationship, plaintiff described how she would "present" herself to defendant in such a fashion that it was clear that her intention was to engage in sexual relations but was always met with no response. Sometime later, plaintiff stopped making such overtures.
Lastly, plaintiff testified that defendant refused her requests for money to purchase necessaries including groceries approximately four (4) years prior to the trial, after which she ceased making such requests. Plaintiff stated that, as a result, she was forced to purchase her own food and cook for herself while defendant would purchase his own food and have plaintiff cook for him but that the parties never ate together.
Defendant presented a wholly different characterization of the parties' relationship, depicting what he referred to as a "normal" relationship in which the parties had sexual relations almost every other day. He described three cruise vacations as well as trips to Las Vegas, Florida and Atlantic City, all of which were attended by plaintiff and during which the parties did everything together at the pool, dining room and at other sports activities. On cross-examination, defendant stated that, although living in the same apartment, the parties had been sleeping in separate bedrooms for approximately three (3) to four (4) years.
The defendant's description of the parties' marriage markedly changed when he recounted the events of the past two (2) years. He stated that the parties' relationship essentially "stopped" sometime after April 2003, that their last social involvement was when they went dancing around that time. He conceded that they did not celebrate their wedding anniversary and that they attend family functions, including Christmas Eve celebrations at their daughter's home, separately. The defendant explained that the parties had not gone to family functions together for "many years . . . because [the plaintiff] doesn't make herself available." The defendant further claimed that the plaintiff "goes out" without him three (3) nights a week from mid-afternoon until early morning hours for the two (2) years since April 2003.
The defendant testified that, notwithstanding the cessation in attending family and other social functions, sexual relations between the parties continued until October 2003 when the plaintiff told him that having sex with him was "emotional rape," after which he never pursued her again. When questioned by the court as to whether he ever sought an explanation from the plaintiff as to the claim of "emotional rape" or whether the defendant had ever brought up the subject in an effort to discuss their sexual relations, the defendant responded "no."
In light of the foregoing, and after an assessment of the credibility of each of the parties, the court finds that the plaintiff has established an entitlement to a judgment of divorce on the grounds of constructive abandonment. It appears clear, to the satisfaction of this court, that the plaintiff has been abandoned by the defendant under any reasonable construction of the term. The defendant's testimony regarding the parties' sexual history is incredible on its face, especially when taking into account the complete breakdown of every other aspect of the parties' marriage.
In light of the foregoing, defendant's motion to dismiss plaintiff's cause of action for abandonment pursuant to DRL § 170(2) is denied.
Settle Order and Judgment.