Opinion
201490/08.
Decided on September 3, 2010.
Judith L. Powell, Esq., Attorney for Plaintiff, 250 Mineola Blvd., 2nd Floor, Mineola, NY 11501.
Steven Borofsky, Esq., Attorney for Defendant, 600 Old Country Road, Suite 520, Garden City, NY 11530.
Before this Court is an uncontested matrimonial action in which the parties have already resolved custody and visitation. Both plaintiff and defendant waived their respective rights to give opening statements.
An inquest of plaintiff was conducted on August 31, 2010 regarding whether there were sufficient grounds for this Court to grant plaintiff a judgment of divorce pursuant to DRL § 170. The plaintiff testified that the parties were married on January 9, 1979 in a civil ceremony, in Hempstead, NY and have two (2) children. Plaintiff first testified the defendant refused to have sexual relations with her since their honeymoon, but after counsel reminded her that she has two (2) children she changed her testimony to indicate the last time she had sexual relations with the defendant was in December 2001. Thereafter, counsel for plaintiff moved for a judgment for divorce on the grounds of constructive abandonment without alleging a complaint was served or without introducing any of the pleadings into evidence.
After defendant had an opportunity to cross-examine the plaintiff this Court asked plaintiff two questions:
The Court: Ma'am, when was the last time you had sexual relations with your husband?
Plaintiff: Over three (3) years.
Plaintiff had previously testified she last had sexual relations with her husband in December 2001, almost 9 years ago.
The Court: Have you asked him to engage in sexual relations since the last time you had sex with him?
Plaintiff: No.
The Court then adjourned the remaining portions of the trial until it ruled on whether the plaintiff had grounds for a divorce pursuant to DRL § 170.
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 AD2d 415, 416, 589 NYS2d 557 (2nd Dept. 1992); see also, George M. v. Mary Ann M., 171 AD2d 651, 651-652, 567 NYS2d 132 (2d Dept. 1991); Caprise v. Caprise, 143 AD2d 968, 970, 533 NYS2d 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 NYS2d 622 quoting Scheinkman, Practice Commentaries, McKinney Cons. Laws of NY 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 AD2d 756, 677 NYS2d 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 AD3d 1095 , 857 NYS2d 643 (2nd Dept. 2008); Ostriker v. Ostriker, 203, AD2d 343, 344-45, 609 N.U.S.2d 922, (2nd Dept. 1994); Gunn v. Gunn, 143 AD2d 393, 532 N.Y.s.2d 556 (2nd Dept. 1998); Benarroch v. Benarroch, 55 AD2d 943, 391 NYS2d 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 NYS2d 605 (Sup. Ct. Suffolk Co. 1979) (generally); and Wolfson v. Wolfson, 39 AD2d 724, 331 NYS2d 844 (2nd Dept.). app. dism., 31 NYS2d 671, 336 NYS2d 907, 288 NE2d 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 NY2d 206, 203 NYS2d 829, 168 NE2d 654 (1960). See, also, Chase v. Chase, 208 AD2d 883, 618 NYS2d 94 (2nd Dept. 1994); and Lyons v. Lyons, 187 AD2d 415, 416, 589 NYS2d 557 (2nd Dept. 1992).
In the instant action, the plaintiff did not offer any credible evidence that the defendant's refusal was unjustified, willful and continued despite repeated requests to resume sexual relations. More to the point, in response to this Court's questions, the plaintiff admitted she never requested to resume sexual relations with the defendant.
As a result of the foregoing and adopting the controlling case law cited above, this Court finds that the plaintiff simply has not met her burden of proof to establish grounds for a divorce pursuant to DRL § 170(2).
For the foregoing reasons, this action is dismissed.
This constitutes the decision and order of this Court.