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In October 2004, I wrote a column for The New York Law Journal outlining the status of “no fault” divorce in the State of New York. 1 In the interim, we still await consideration of the proposed legislation submitted by the Family Law Section of the New York State Bar Association urging the enactment of a long-overdue no fault statute. As it stands, many courts that remain constrained by the existing statute, 2 particularly in the Third Department, continue to deny a party their divorce usually for failure to meet the criteria for the establishment of cruel and inhuman treatment. 3 ‘Constructive Abandonment’ The concept of “constructive abandonment,” a creation of case law which is derived from the provisions of Domestic Relations Law (DRL) �170(2), has always been fairly well understood. It has been a claim of “sexual abandonment,” made under DRL �170(2). The abandonment must continuously exist for a period of one or more years occurring retroactively from the time of commencement of the action or counterclaim. 4 The requirements were recently synopsized by the trial court in Gerard v. Gerard, 5 as follows, “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 the resumption of relations. 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 ground of constructive abandonment. Silver v. Silver, 253 AD2d 756, 677 NYS2d 593 (2nd Dept., 1998) citing Caprise v. Caprise, 143 AD2d 968, 533 NYS2d 622. See also Lyons v. Lyons, 187 AD2d 415, 589 NYS2d 557 (2nd Dept., 1992). Moreover, the details regarding the constructive abandonment cannot be “too vague and unspecific” in order to support a finding that plaintiff spouse continuously, or at least periodically, requested a resumption of normal sexual relations. Biegeleisen v. Biegeleisen, 253 AD2d 474, 676 NYS2d 684 (2nd Dept., 1998). The Second Department in Silver v. Silver, 6 cited by the court in Gerard, further held, “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 basic obligations arising from the marriage contract and that the abandonment continued for at least one year.” ( Lyons v. Lyons, 187 AD2d 415, 416; see also, George M. v. Mary Ann M., 171 AD2d 651, 651-652; Caprise v. Caprise, 143 AD2d 968, 970). Not Fulfilling ‘Basic Obligations’ In a decision which has now been issued out of Nassau County by Judge Anthony Falanga, the court has adroitly pushed the envelope, as it were, on “constructive abandonment” in the matter of C.P. v. G.P., 7 applying the “refusal to fulfill the basic obligations of the marriage” � long-rooted in the solely sexual aspect of the constructive abandonment, to a broader concept. Allegations, which might not rise to the more stringent requirements to prove cruel and inhuman treatment, may very well fit within the ambit of the “refusal to fulfill the basic obligations” language of abandonment case law. 8 In C.P. v. G.P., the court in denying a portion of the husband’s CPLR 3211 application to dismiss the amended complaint, held that for a continuous period of over 10 years the husband engaged in an “almost total, wilful refusal . . . to engage in any social intercourse with the wife” and that the allegations set forth a presently viable cause of action for divorce upon the grounds of “constructive abandonment.” The continuous conduct alleged by the wife, included refusing to eat a meal with the wife or to eat a meal prepared by her; refusing to celebrate holidays with the wife or participate in relatives’ birthday celebrations, including hers or the parties’ three children’s birthdays; refusing to attend the funeral of the wife’s father in 1997, her mother in January 2002 and her nephew who died in the World Trade Center in September 2001; refusing to attend the parties’ nephew’s wedding in October 2002; refusing to attend the parties’ children’s graduation parties held in the marital home in 1992, 1993 and 1997; refusing to attend the wife’s parents’ 60th anniversary party in 1992; between 1988 and 2000, refusing to attend the parties’ neighbor’s annual holiday party; in June 1986 and June 1987, refusing to attend the parties’ nephews’ graduation parties; that, refusing to celebrate the Christmas Day 2002 holiday with 25 of the wife’s relatives at the marital residence; failing to acknowledge the wife’s mother’s death in January 2002; refusing to speak to the wife, except sporadically, since 1993; and from September 1992 to date, refusing to sleep in the marital bedroom with the wife. The court provides a history of the case law from which “constructive abandonment” is derived. Referencing an 1866 New York County Supreme Court decision in Heermance v. James 9 and the Court of Appeals’ decisions in Mirizio v. Mirizio 10 and Diemer v. Diemer, 11 Justice Falanga held that abandonment is not limited to a “technical physical separation,” but that the “essence of desertion or abandonment” encompasses a refusal by one spouse to fulfill the “basic obligations springing from the marital contract.” In noting that “obviously, not every denial of a marital right will be sufficient to support a charge of abandonment,” the Court did not restrict its definition of abandonment to the denial of conjugal rights. Clearly, sexual intercourse is not the only “basic obligation springing from the marital contract.” The very core of a marriage is the concept of a “relationship.” A defendant spouse who has completely refused to engage in any form of social interaction with the plaintiff spouse, for more than one year prior to the commencement of an action for divorce pursuant to DRL �170(2), without cause or condonation, has unquestionably failed to fulfill a basic obligation arising from the marital contract, thereby abandoning the plaintiff, no less than if the defendant had physically abandoned the plaintiff or unjustifiably refused to engage in sexual relations. The court found further that “hyper-technical labels” should not be applied to the cause of action which sounds in cruel and inhuman treatment and that the allegations, if true, would support a claim for “constructive abandonment.” Sexual Aspects Shattered The decision in C.P. v. G.P. intrepidly shatters the limitations of the sexual underpinnings of the constructive abandonment cause of action and may pave the way to a recognition that the “dead marriage” may under the right circumstance be properly buried. While the Legislature ponders the Bar Association’s proposal, at least some litigants may have found a light at the end of the tunnel. Lee Rosenberg is a partner at Saltzman Chetkof & Rosenberg in Garden City, N.Y., with a practice concentrating in matrimonial and family law. E-mail: [email protected] Endnotes: 1. Lee Rosenberg, Outside Counsel, “Is the Time Ripe for No-Fault Divorce?”, NYLJ Oct. 20, 2004 at 4, col 4. 2. DRL ��170 and 220. 3. Gerber v. Gerber, __ AD3d __ , 2005 N.Y. Slip Op. 01424, (3d Dept., Feb. 24, 2005); Jacob v. Jacob, 8 AD3d 725, 778 NYS2d 191 (3rd Dept., 2004) Omahen v. Omahen, 289 AD2d 890, 735 NYS2d 236 (3rd Dept., 2001); Murphy v. Murphy, 257 A.D.2d 798, 683 N.Y.S.2d 650 (3d Dept., 1999); Doyle v. Doyle, 214 AD2d 918, 625 NYS2d 693 (3rd Dept., 1995) lv. den. 87 NY2d 809, 639 NYS2d 310, 662 NE2d 791 (1995) See also, Archibald v. Archibald, __ AD3d __, 2005 NY Slip Op. 01152 (2d Dept., Feb. 14, 2005); D.A. v. B.E., 2005 NY Slip Op 50281(U), (Sup Ct Queens County Jan. 27, 2005, Lebowitz, J.) 4. Jacob v. Jacob, 8 AD3d 725, 778 NYS2d 191 (3rd Dept., 2004); Adams v. Adams, 255 AD2d 535, 680 NYS2d 663 (2nd Dept., 1998); Phillips v. Phillips, 70 AD2d 30, 419 NYS2d 573 (2nd Dept., 1979). 5. NYLJ, April 5, 2004, at 19, col 1 (Sup Ct, Richmond County, Adams, J.) The court denied a divorce, in a 22-year marriage, based upon the wife’s failure to prove her claim of constructive abandonment even though the court found her testimony to be credible. 6. 253 AD2d 756, 677 NYS2d 593 (2nd Dept., 1998). 7. NYLJ, Feb. 10, 2005, at 19, col 1 (Sup Ct, Nassau County, Falanga, J.) 8. The court in fact rejected the allegations as meeting the standards for cruel and inhuman treatment and dismissed that cause of action. 9. 32 How Pr 142, 47 Barb 120 (Sup Ct NY County 1866). 10. 242 NY 74, 150 NE 605 (1926). 11. 8 NY2d 206, 203 NYS2d 829, 168 NE2d 654 (1960).

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