Smith
v.
Smith

Superior Court New Haven CountyOct 11, 1936
4 Conn. Supp. 226 (Conn. Super. Ct. 1936)

File No. 50458

Weissman Maretz, Attorneys for the Plaintiff

The plaintiff, a resident of New Haven, and the defendant, who lives in New York State, were married in New York City in May, 1933. Except on one occasion in New York she has refused to have sexual intercourse with him and they have lived apart from the very inception of the marriage. The plaintiff seeks a divorce on the ground of intolerable cruelty. Held: The defendant's conduct does not measure up to the standard of cruelty enunciated in McEvoy vs. McEvoy, 99 Conn. 427. That the case is one of desertion rather than intolerable cruelty, therefore, judgment for the defendant.

MEMORANDUM FILED OCTOBER 11, 1936.


the plaintiff is a doctor practicing in New Haven. The defendant is a nurse working in New York State. They were married in New York in May, 1933, and left for their respective homes by agreement immediately after the marriage without sexual relations. About one month after the marriage they met in New York and had such relations upon one occasion. The defendant refused further relations and also refused to live with the plaintiff. On one or two occasions, at his request she visited him at New Haven but has refused to have sexual relations. The plaintiff has brought this action upon the ground of intolerable cruelty and has testified that her conduct has hurt him physically, socially and mentally.

The plaintiff has cited in his brief numerous cases in which it has been held that refusal to cohabit constitutes intolerable cruelty. These are based upon the theory that such conduct is of a nature "to render their living together insupportable". Varner vs. Varner, 80 S.W. 386 (Tex). In all of the cases it appears the parties were living together all or most of the time, and all are predicated upon injury to health.

As has been said, in the instant case the parties have never lived together and the defendant has at all times refused to live with the plaintiff. If this has caused him suffering it arises out of desertion rather than association coupled with refusal to cohabit, and is no different than a majority of desertion cases coming under the observation of the court.

"It is only when the cumulative effect of the defendant's cruelty upon the suffering victim has become such that the public and personal objects of matrimony have been destroyed beyond rehabilitation that the condition of fact contemplated by the intolerable cruelty clause of the statute should be found to exist.

McEvoy vs. McEvoy, 99 Conn. 427.

Obviously the legislature considered the two causes, intolerable cruelty and desertion, named in the statute separate and distinguishable. And as apparently the facts in the instant case come under the desertion and not the intolerable-cruelty cause.