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A lack of social, not just sexual, intercourse can be grounds for divorce, a Nassau, N.Y., Supreme Court judge has ruled. In its most-immediate application, Justice Anthony J. Falanga’s decision last week in C.P. v. G.P., No. 03-200810, preserves a wife’s case for divorce from her husband of 36 years. Despite living together, the husband allegedly has refused over the last 12 years to dine with his wife, talk to her or attend family functions with her, breaking the parties’ marital contract and constructively abandoning her, the judge said. Attorneys who have read the ruling said it is one of a kind. If applied by other courts, they said, the newly recognized cause of action could move the matrimonial bar another step closer to no-fault divorce. New York is the only state that has yet to adopt some form of no-fault relief for couples who no longer wish to be married. The New York State Bar Association is heading the drive to change the law, and its leaders are expected to meet with key legislators later this month on the matter. Vincent F. Stempel of Garden City, N.Y., chairman of the state bar’s Family Law Section, called Justice Falanga’s ruling “a great decision,” adding that it “dovetails perfectly” with Chief Judge Judith S. Kaye’s remarks in her State of the Judiciary in January that the Legislature should consider no-fault divorce “to dissolve marriages that are obviously over.” In the case before Falanga, East Meadow, N.Y., attorney Russell I. Marnell represented the plaintiff wife, who was identified in court paper’s only as C.P., a 58-year-old porter at a Woodbury, N.Y., health care center. Marnell said the judge’s ruling is a logical extension of existing case law. His adversary, Anthony Mastroianni of Westbury’s Mastroianni & Mastroianni, declined to comment on the ruling. His client, G.P., is a 59-year-old retired Nassau police officer. The childless couple also is fighting over the status of the husband’s police pension. As of 2002, he was earning more than $100,000 a year, while his wife garnered only $26,000. They are scheduled to begin a jury trial on March 14. Falanga’s decision arose from Mastroianni’s cross-motion to dismiss an amended complaint filed by the wife. The complaint contained two causes of action: one alleging cruel and inhuman treatment, and another pleading constructive abandonment. An earlier decision by Falanga had knocked out the cruel and inhuman treatment claim. Marnell sought to have that claim reinstated. Citing the duration of the couple’s marriage, Falanga rejected Marnell’s motion to restore the cruel and inhuman treatment claim, concluding that the allegations of poor treatment were too sporadic and, in some cases, time barred by the five-year limitation on bringing such claims, the judge said. Falanga also expressed some doubt about whether the wife had condoned her husband’s sexual abandonment, nearly dooming that arm of her case as well. But, he said, there was in Marnell’s pleadings clear evidence of a different kind of abandonment — social abandonment. “The court does find,” the judge wrote, “that the following allegations in the amended verified complaint, set forth an almost total, wilful refusal by the husband to engage in any social intercourse with the wife for a continuous period of more than ten years prior to the commencement of the action and that said allegations set forth a viable cause of action for divorce on the ground of abandonment pursuant to DRL 170(2).” Since 1993, the husband had refused to take meals with his wife or even eat food prepared by her. He also refused to celebrate holidays with her, did not attend her father’s funeral in 1997 or the funeral of her nephew, who was killed in the Sept. 11, 2001, terror attack on the World Trade Center, the judge said. Except for sporadic instances, the husband also stopped talking to his wife, the judge wrote, adding that he has been unwilling to sleep in the marital bedroom for more than 12 years. Falanga explained while the concept of “abandonment” is rooted in statutory law, the notion of “constructive abandonment” is a creation of case law, not statute. In the 1960 Court of Appeals case Diemer v. Diemer, 8 NY2d 206, the court said that abandonment is not limited to physical abandonment but is rooted in “a refusal by one spouse to fulfill the basic obligations springing from the marital contract.” Falanga held that if true, the wife’s allegations would be sufficient to support a finding that her husband had abandoned her by refusing to fulfill those contractual obligations. ‘DIFFERENT APPROACH’ In a telephone interview, Marnell said the ruling is “really just taking what has been case law, and looking at it from a different approach.” He added that it is “very logical” to say that when a spouse does not receive the social benefits one typically expects from a marriage that one has been constructively abandoned. Willard H. DaSilva, a matrimonial attorney who was not involved in the case, described the ruling as “courageous,” adding that he was surprised such a ruling has not occurred sooner. A partner in Garden City’s DaSilva Hilowitz & McEvily, DaSilva echoed Falanga’s reasoning, stating that while constructive abandonment is almost always thought of in terms of sexual relations, “the same reasoning can readily apply to this kind of abandonment, which is non-sexual, but abandonment nevertheless.” Falanga’s decision, DaSilva added, takes New York “one step closer” to making no-fault divorce a reality. Another matrimonial lawyer, Gloria May Rosenblum of East Islip, N.Y., predicted that the impact of Falanga’s decision on the matrimonial bar would be “significant.” “It’s moving us toward the point of recognizing that the spouse’s obligations aren’t just sexual,” she said. While the ruling stops short of recognizing irreconcilable differences” as fault grounds, she noted, it does recognize a breakdown in the functioning of a husband and wife as a team. The judge “clearly finds that this is a divorce made in heaven … a divorce that should be,” she said. Harold A. Mayerson, chairman of the matrimonial law committee chair of the Association of the Bar of the City of New York, said the ruling “reflects the judicial resistance to the stubborness of the Legislature to deal with no-fault divorce.” Mayerson, of Mayerson & Stutman, asserted that this decision and others have been rendered by judges who — intent on underscoring the lack of a no-fault law in New York — have denied divorces in instances where grounds cannot be established and here recognized grounds where none may be warranted. “We will see more of these decisions, straining the credulity of the courts until the Legislature takes up the issue,” he predicted. Stempel, who will be part of the state bar delegation meeting with legislators later this month, added that a no-fault provision makes good economic sense, both for litigants who cannot afford to fuel costly contested divorces as well as for the courts that must devote time and resources to hearing cases where the parties are fighting only over economic issues, not fault grounds. Statutory changes proposed by the state bar would allow for divorce based on the irretrievable breakdown of a marriage — relieving the parties of the need to prove fault — but would withhold the granting of a decree dissolving the marriage until the economic issues are resolved.

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