Hay v. Hay

• Decision Date: 27 July 1971
• Parties: . Edith HAY, Petitioner, v. Alan HAY, Respondent. * Family Court, City of New York, New York County
• Court: New York Family Court

Page 481

323 N.Y.S.2d 481

67 Misc.2d 50

In the Matter of a Proceeding for Support under Article 4 of the Family Court Act Edith HAY, Petitioner, v. Alan HAY, Respondent. ^*

Family Court, City of New York, New York County.

July 27, 1971.

Norman M. Sheresky, New York City, for petitioner.

Hyman & Harris, New York City, for respondent by Alvin I. Goidel, New York City, of counsel.

DECISION

NANETTE DEMBITZ, Judge:

This support proceeding under Section 412 of the Family Court Act presents the issue of whether a wife's refusal to engage in marital sexual relations justifies her husband's desertion from the marital home and failure to support her. As respondent contends, a wife's refusal to have marital sexual relations has been held to constitute abandonment entitling the husband to a judgment of separation. See Diemer v. Diemer, 8 N.Y.2d 206, 210, 203 N.Y.S.2d 829, 832, 168 N.E.2d 654, 657; Mirizio v. Mirizio, 242 N.Y. 74, 80, 150 N.E. 605, 607.

Despite some conflict in petitioner's and respondent's versions of their marital history, the essential facts are clear. Petitioner, aged 48, and respondent aged 50, married 25 years, and with an adult married son, had never lived apart prior to respondent's departure from the marital home on May 4, 1970. While respondent complained of some inconsiderate habits on petitioner's part, their relationship manifested a normal--and indeed better than normal--degree of harmony and satisfaction except for the area of sexual intercourse. For a period which the Court finds to be ten years (petitioner conceded the period to be four or five years), petitioner had refused to engage in sexual intercourse with respondent and had indeed discouraged any type of sexual physical contact, apparently because she had developed a feeling of withdrawal and revulsion with respect to such contact with anyone. Throughout this period respondent indicated to petitioner a continuing desire for a sexual relation with her. Despite her aversion to it, however, he continued to manifest affection and concern for her and to pay her attentions, such as gifts of furs and jewelry and expensive vacation trips together.

On May 4, 1970, respondent told petitioner for the first time that he wanted a divorce. Respondent testified--and the Court, with ample opportunity to appraise credibility, credits his testimony--that the background of this event was that on the previous day, which was his fiftieth birthday, he determined to break with petitioner in order to find a more complete relationship: that he had decided it was now or never if he was to live before he died. While he had not contemplated leaving petitioner forthwith, she became so agitated during their conversation that he hastily moved out of the marital home.

The principle declared in Diemer, like others developed under the Domestic Relations Law in actions for separation and divorce, are to be applied in support actions in this Court. See Steinberg v. Steinberg, 18 N.Y.2d 492, 497, 498, 277 N.Y.S.2d 129, 132, 138, 223 N.E.2d 558, 560, 561. And if the wife is at 'fault' as the 'fault' concept has been enunciated under the Domestic Relations Law, her petition in this Court for support may be denied unless she is in danger of becoming a public charge. See Brownstein v. Brownstein, 25 A.D.2d 205, 207, 268 N.Y.S.2d 115, 119 (1st Dept.1966).

This Court holds, however, that it may in a support action consider other principles besides the rulings on 'fault'. For reasons discussed below, this Court is not obliged to apply those rules rigidly, nor to attempt to predict the result in respondent's pending divorce action or whether, in a hypothetical divorce suit by petitioner, she would be denied support under Domestic Relations Law, Section 236 by reason of misconduct entitling her husband to a divorce. Compare Glover v. Glover, 64 Misc.2d 374, 377, 314 N.Y.S.2d 873, 876 (Fam.Ct., Queens, 1970).

It has been suggested that: 'Since the emphasis on the doctrine of fault has been eroded in the granting of divorce so, too, should the fault doctrine be dispensed with in the granting of alimony'. Dulber v. Dulber, 63 Misc.2d 259, 262, 311 N.Y.S.2d 604, 607 (Sup.Ct., Queens, 1970). Compare Mante v. Mante, 34 A.D.2d 134, 309 N.Y.S.2d 944 (2d Dept.1970), as to the diminished significance of 'fault' throughout the revised New York divorce law. Further, value judgments and changing policies as to when dissolution should be permitted are not addressed to the question of when fairness requires the wife's support. In any event, in a support action in which this Court is directed merely to give 'due regard to the circumstances' of both parties (Family Court Act, sec. 412), this Court believes that it may temper 'fault' doctrines by equitable considerations.

Here, contrary to the situation in Diemer and Mirizio--where the wife's refusal of sexual relations was deemed an abandonment--there is no indication that petitioner refrained from marital relations wilfully, deliberately, or purposefully, to gain her own ends. Rather, it seems clear that petitioner's physical rejection of respondent was due to a psychic block; if it had been due to an organic paralysis, it certainly would not be considered an abandonment. Further, her refusal had no concomitant of conscious cruelty or...