Opinion
03-200810.
Decided March 3, 2005.
There are three motions before the Court. The wife moves for an order 1)restraining the New York State and Local Retirement Systems from commencing any pay outs to the husband; 2) adjudging him in contempt for his alleged wilful violation of a so-ordered stipulation dated October 22, 2003 prohibiting him from applying for retirement from the Nassau County Police Department and 3) awarding her counsel fees. By separate motion, she seeks an order pursuant to CPLR 2221 granting her leave to reargue a motion decided by an order dated September 14, 2004 that dismissed the second cause of action in her verified complaint seeking a divorce on the ground of cruel and inhuman treatment. The husband moves for an order dismissing the amended verified complaint. The motions are decided as follows:
The parties were married on November 30, 1969. The wife is 58 and the husband is 59 years old. There are no minor children of the marriage. The wife commenced the above captioned action for divorce on or about March 20, 2003 after 33 years of marriage. A preliminary conference was conducted on October 22, 2003. The preliminary conference order sets forth that both parties reside in the marital reside in Hicksville purchased in 1973 for $38,000.00. The premises is not encumbered. As of the date of the preliminary conference, the wife was employed as a porter by the Woodbury Center for Health Care, and the husband was employed as a Nassau County Police officer. In 2002, the wife earned $26,523.13 and the husband earned $100,301.74. The parties executed a written, so-ordered stipulation on October 22, 2003 restraining the husband, during the pendency of the action, from selling, transferring, borrowing from, or encumbering his pension benefits; and from altering the current status of his pension, removing the wife as beneficiary, eliminating or changing her right to survivorship benefits or altering pension pay out options.
During the course of discovery proceedings, the marital residence and both party's retirement assets were valued and the action was certified as ready for trial by order dated June 21, 2004. A pretrial conference was conducted on August 5, 2004 and trial was scheduled to commence on December 7, 2004. By motion submitted on September 10, 2004, the husband moved for an order dismissing the second cause of action in the verified complaint seeking a divorce on the ground of cruel and inhuman treatment. Said application was granted by an order dated September 14, 2004, that afforded the wife leave to replead. The wife filed a note of issue on November 8, 2004 demanding a jury trial on grounds. On November 17, 2004, she served the instant motion seeking an order adjudging the husband in contempt of the so-ordered stipulation dated October 22, 2004. In support of said application, she alleged that the husband retired from the Nassau County Police Department in October 2004; that his pension had been valued at $811,041.07, his deferred compensation at $54,391.51, and his severance pay at $154,951.19; and that she had no information as to whether he had removed her as beneficiary of his pension benefits or had selected a pay out option that prejudiced her survivorship rights. Pursuant to a temporary restraining order set forth in her order to show cause dated November 17, 2004, the New York State and Local Retirement Systems have been temporarily enjoined from paying out any retirement benefits to the husband.
The wife served an amended verified complaint on or about November 30, 2004. By order to show caused dated December 13, 2004, she moved for leave to reargue the September 14, 2004 order that dismissed the second cause of action in her original complaint. By notice of cross motion served on December 20, 2004, the husband moved to dismiss the amended verified complaint.
The amended verified complaint sets forth two causes of action for divorce. The first cause of action sounds in constructive abandonment and the second, cruel and inhuman treatment. The first cause of action alleges that for a continuous period of at least one year commencing in 1990 and continuing to date the husband has refused to engage in sexual relations with the wife; that the wife did not cause or condone said refusal; and that both parties were capable of engaging in sexual relations.
The second cause of action for divorce on the ground of cruel and inhuman treatment consists of more than 30 paragraphs and need not be set forth at length.
The husband contends that various allegations in the complaint unequivocally establish that the wife made no demand for sexual relations subsequent to 1993. Citing Hammer v. Hammer, 41 AD2d 831, a 1973 decision by the Appellate Division, Second Department, affirmed by the Court of Appeals in 1974 at 34 NY2d 545, he further contends that her allegation that the parties have not engaged in sexual relations for a period of over ten years prior to the commencement of the action constitutes acquiescence and condonation, as a matter of law, requiring the dismissal of said cause of action.
The wife concedes that she ceased making any effort to persuade the husband to engage in sexual relations with her after 1993. She contends that she made inordinate and frequent unsuccessful efforts to seduce him to engage in marital relations between 1989 and 1993, and that such efforts were discontinued upon her alleged "discovery," in 1993, that he had been engaged in an extramarital affair. She states that she feared she might contract a sexually transmitted disease from her unfaithful husband and asserts that her failure to request sexual relations with her unfaithful spouse does not constitute acquiescence or condonation of his abandonment of her.
The wife's attorney correctly points out that there is no statute of limitations applicable to a divorce on the ground of abandonment pursuant to DRL 170(2). In fact, DRL 210 specifically states that the five year statute of limitations is not applicable to a cause of action for divorce on the ground of abandonment ( see. e.g., Ostriker v. Ostriker, 203 AD2d 343 [constructive abandonment divorce granted in 1990, after trial upon finding that defendant spouse had wilfully refused to engage in sexual relations since 1979]). The Court finds that plaintiff's first cause of action states a viable claim and that there are genuine issues of fact with regard to acquiescence and condonation that preclude dismissal of said cause of action pursuant to CPLR 3211(a)(7) or CPLR 3212.
With regard to the wife's second cause of action, the husband contends that many of the allegations of cruelty are impermissibly vague pursuant to CPLR 3016[c]; and or occurred well beyond the five year statute of limitations set forth in DRL 210; that several of the allegations post-date the commencement of the action; and that the remaining allegations set forth conduct indicative of nothing more than a "dead marriage," insufficient to state a cause of action for divorce pursuant to DRL 170(1) in a marriage of more 33 years duration.
The wife responds that the allegations set forth in the second cause of action are sufficient to apprise the husband of the misconduct underlying her claim. She further contends that the acts alleged to have occurred more than five years prior to the commencement of the action are permissible in that they constitute a pattern of cruelty and continuous course of conduct.
The Court finds that numerous allegations in the complaint which fail to provide any detail as to date other than "through out the course of the marriage" or from "1974 to date" must be stricken on the ground that they fail to meet the specificity requirement of CPLR 3016[c] ( see, Harari v. Harari, 234 AD2d 421; Kapchan v. Kapchan, 93 AD2d 880).
Allegations of cruelty that occurred more than five years prior to the commencement of an action for divorce are properly included in a complaint only to the extent that same constitute a pattern of cruelty and continuing course of conduct relevant to the evaluation of the allegations of misconduct that fall within the five year statute of limitations ( see, Vestal v. Vestal, 273 AD2d 461; see also, Habib v. Habib, 278 AD2d 277; McKilligan v. McKilligan, 156 AD2d 904; Miglio v. Miglio, 147 AD2d 460; Albert v. Albert, 44 AD2d 895). While some of the allegations set forth in the second cause of action meet this standard, the Court finds that many of the acts set forth in the complaint took place in the 1970s, 1980s and early 1990s and do not constitute a pattern or course of conduct that continued to occur within the five years immediately preceding the commencement of the action. For example, the allegation that "(t)he children, when younger, were not allowed to walk on the lawn," lacks the requisite specificity and is time barred. The allegation that in 1986 the husband was two hours late picking the wife up at the hospital after she underwent out patient surgery is time barred.
The amended verified complaint also sets forth acts that occurred subsequent to the commencement of the action. As the date of the commencement of an action for divorce "cuts off" a defendant's rights with regard to certain assets comprising the marital estate, in a case where a plaintiff does not have grounds for divorce as of the date of the commencement of an action, it would be improper to permit such plaintiff leave to replead misconduct that occurred after the commencement date ( see, Klein v. Klein, 4 Misc 3d 1026[A]; Hallingby v. Hallingby, 159 Misc 2d 988).
The law is well settled that on a motion to dismiss for failure to state a viable claim, the complaint is to be liberally construed; the facts alleged are accepted as true; and the plaintiff is to be accorded every possible favorable inference (see, Habib v. Habib, supra; Bartkowski v. Bartkowski, 273 AD2d 942; Vestal v. Vestal, supra; Steinberger v. Steinberger, 248 AD2d 706; M.M. v. E.M., 248 AD2d 109). Accordingly, the Court must determine whether the allegations in the verified amended complaint, which are not time barred, and are pled with sufficient specificity, would, if true, constitute grounds for divorce pursuant to DRL 170(1).
DRL 170(1) requires that a plaintiff "generally show a course of conduct by the defendant which is harmful to the physical or mental health of the plaintiff and makes cohabitation unsafe or improper." A plaintiff seeking a divorce on the ground of cruel and inhuman treatment must demonstrate serious misconduct and not mere incompatibility or irreconcilable differences ( see, Brady v. Brady, 64 NY2d 339; Archibald v. Archibald, 2005 WL 357894 [NYAD 2nd Dept February 14, 2005]; Jacob v. Jacob, 8 AD3d 725; Bigeleisen v. Bigeleisen, 253 AD2d 474; Feeny v. Feeny, 241 AD2d 510; Palin v. Palin, 213 AD2d 707).
The determination as to whether the conduct complained of constitutes cruel and inhuman treatment is a question of fact which will depend upon the circumstances of each case ( Soto v. Soto, 216 AD2d 455). Allegations of physical violence are not necessary and misconduct of verbal and mental abuse may suffice ( Vaiana v. Vaiana, 272 AD2d 916). Further, the law is clear that there is no requirement that a plaintiff obtain medical treatment or psychological counseling to establish grounds for divorce based upon cruel and inhuman treatment (see, Habib v. Habib, supra; Bailey v. Bailey, 256 AD2d 1030; Mikhail v. Mikhail, 252 AD2d 772). "A divorce may be granted based upon a showing that the mental well-being of the complaining spouse is endangered by conduct which renders cohabitation improper, though not necessarily unsafe" ( Habib v. Habib, supra). While individual acts in and of themselves may not rise to the level of the requisite proof, the cumulative affect of such incidents may constitute the basis for finding a course of conduct that can be viewed as harmful to plaintiff's physical or mental well being ( see, Brady v. Brady, supra). In determining whether the defendant's conduct justifies the granting of a divorce on the ground of cruel and inhuman treatment, the conduct complained of must be viewed in the context of the entire marriage including its duration ( see, Bradley v. Bradley, 298 AD2d 485).
The duration of the marriage is a significant factor in deciding whether the offending behavior constitutes "serious misconduct" ( see, Hessen v. Hessen, 33 NY2d 406; M.M. v. E.M., supra; Rieger v. Rieger, 161 AD2d 227, 228). "An appearance of misconduct, which in a matured marriage might fail to justify a finding of substantial misconduct, but only transient discord, may in a newer marriage justify or even compel an inference of substantial misconduct" (Hessen v. Hessen, supra at 411; see, Brady v. Brady, supra; Whaley v. Whaley, 277 AD2d 1025; Soto v. Soto, supra; S.C. v. A.C., 4 Misc 3d 1014[A]). It is axiomatic that where the marriage is of long duration, as in the instant case where the parties were married for over 33 years before the commencement of the action, the courts have consistently demanded a high degree of proof of cruel and inhuman treatment ( see, Brady v. Brady, supra; Bradley v. Bradley, supra; Davey v. Davey, 293 AD2d 444). The complaint must allege misconduct which constitutes "calculated cruelty" rather than "mere incompatibility" or "transient discord" ( Hessen v. Hessen, supra at 410-411; see, Brady v. Brady, supra; Archibald v. Archibald, supra; Stroke v. Stroke, 283 AD2d 992; Bartkowski v. Bartkowski, supra).
As stated by Justice Sunshine in Meccariello v. Meccariello, 8/29/2003 NYLJ 20, (col. 3),
It has been repeatedly recognized, however, that "[t]he existence of cruel and inhuman treatment as a ground for divorce does not permit dissolution of a marriage on a 'no-fault' basis or merely because it is 'dead'" ( Tsakis v. Tsakis, 110 AD2d 763, appeal dismissed 65 NY2d 1053, citing Brady v. Brady, supra; Hessen v. Hessen, supra). A showing that the relationship between the husband and wife was strained, tense, and unpleasant is therefore insufficient to make the requisite showing ( Silver v. Silver, 253 AD2d 756; see, Garver v. Garver, 253 AD2d 512, 513; Arunus v. Arunas, 227 AD2d 424).
Applying the aforesaid principals of law, the Court finds that even if true, the viable allegations set forth in the verified amended complaint do not constitute substantial misconduct sufficient to support the granting of a judgment of divorce to the wife on the ground of cruel and inhuman treatment.
The Court does find, however, 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), to wit:
Commencing in 1993 and continuing to the present, the husband has refused to eat a meal with the wife or to eat a meal prepared by her; since 1989 to date, he has refused to celebrate holidays with the plaintiff or participate in relatives' birthday celebrations, including hers or the parties' three children's birthdays; he refused 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; in October 2002, he refused to attend the parties' nephew's wedding; he refused to attend the parties' children's graduation parties held in the marital home in 1992, 1993 and 1997; he refused to attend the wife's parents' 60th anniversary party in 1992; between 1988 and 2000, he refused to attend the parties' neighbor's annual holiday party; in June 1986 and June 1987, refused to attend the parties' nephews' graduation parties; that Christmas Day 2002, he refused to celebrate the holiday with 25 of the wife's relatives at the marital residence; he failed to acknowledge the wife's mother's death in January 2002; he has refused to speak to the wife, except sporadically, since 1993; and from September 1992 to date, he has refused to sleep in the marital bedroom with the wife. The amended verified complaint asserts that the wife expressed her desire that the husband attend functions and participate in celebrations. The Court finds that the allegations are pled with sufficient specificity and that the statute of limitations set forth in DRL 210 is not applicable.
DRL 170(2) states that an action for divorce or separation may be maintained by a spouse on the ground of the abandonment of the plaintiff by the defendant for a period of one or more years. Constructive abandonment is a creation of case law rather than statute, first applied by the Court of Appeals in 1926 in Mirizio v. Mirizio, 242 NY 74, as a viable defense to a wife's cause of action for separation. In Diemer v. Diemer, 8 NY2d 206, in 1960, the Court of Appeals held that a husband was entitled to a judgment of separation on the ground of constructive abandonment, holding that the wife's refusal to engage in sexual relations struck at the basic obligation of the marital contract. Citing its own decision in Mirizio and Heermance v. James, 47 Barb 120, 126, the Court stated 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.
In the instant case, in the event the husband persuades the Court that the wife "condoned" the absence of sexual intercourse in the marriage, thereby defeating her cause of action for divorce on the ground of sexual abandonment, the wife may nevertheless possess a viable claim for abandonment on the ground of his unjustified refusal to engage in social intercourse in the manner and to the extent as she has alleged herein under her second cause of action. The fact that the plaintiff's second cause of action herein sounds in cruel and inhuman treatment rather than constructive abandonment is not dispostive. Although the husband's complaint in Diemer v. Diemer, supra sounded only in cruel and inhuman treatment, the Court of Appeals held it could grant him a separation on the ground of abandonment, as the Court had the authority to look past the "hyper-technical label" and address the underlying merits of the complaint.
The Court finds that, if true, the wife' allegations in her second cause of action would be sufficient to support a finding that the husband constructively abandoned her by "unreasonably refusing to fulfill the basic obligations arising from the marital contract" ( see, Silver v. Silver, supra). Accordingly, the husband's application for an order dismissing said cause of action is denied.
The motion by the wife for an order pursuant to CPLR 2221 granting her leave to reargue the motion decided by the order dated September 14, 2004 is denied on the ground that she has failed to demonstrate that the Court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law ( see, Foley v. Roche, 68 AD2d 558).
The wife's application for an order holding the husband in contempt is referred to the trial of the action. In the event the Court does not grant a judgment of divorce to the wife, her application will be moot, as the Court will not have any authority to award her an equitable share of the husband's retirement assets. In the event she is awarded a judgment of divorce, a finding of contempt can only be predicated upon a finding, at trial, that the husband's alleged contemptuous acts have resulted in some prejudice to the wife, as the papers herein do not demonstrate prejudice as a matter of law ( see, Barkan v. Barkan, 271 AD2d 466; Farkas v. Farkas, 209 AD2d 316 appeal dismissed 81 NY2d 783). The temporary restraining orders set forth in the order to show cause dated November 17, 2004 are continued and shall remain in full force and effect pending disposition of the action or further order of the Court.
This constitutes the decision and order of the Court. This action was heretofore calendared for trial on March 1, 2005. In a further effort to enable the parties to effectuate a settlement, the trial was adjourned by the Court to March 29, 2005 and the instant motions and the action were set down for a settlement conference on March 14, 2005. Counsel for one party thereafter advised the Court that settlement negotiation would not be fruitful and requested a decision be rendered on the motions. Accordingly, the parties shall appear for jury selection and trial on March 14, 2005 at 9:30 a.m.