Diemer v. Diemer

• Decision Date: 08 July 1960
• Citation: 203 N.Y.S.2d 829,168 N.E.2d 654,8 N.Y.2d 206
• Parties: , 168 N.E.2d 654 William DIEMER, Appellant, v. Gilberte DIEMER, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 829

203 N.Y.S.2d 829

8 N.Y.2d 206, 168 N.E.2d 654

William DIEMER, Appellant, v. Gilberte DIEMER, Respondent.

Court of Appeals of New York.

July 8, 1960.

Leonard M. Leiman, New York City, for appellant.

Anthony F. LoFrisco and William D. Sullivan, New York City, for respondent.

FULD, Judge.

The question on this appeal is whether a wife's repudiation of the validity of her marriage and her refusal to have sexual relations with her husband unless he submite to a remarriage in a church of her religious faith entitle the husband to a decree of separation.

Mr, and Mrs. Diemer were married in 1947. He was a Protestant, 41 years of age, she a Roman Catholic, a year younger. Having anticipated problems in accommodating their religious differences, they discussed this issue and reached an agreement concerning it. Although other aspects of their agreement were in dispute at the trial, it seems clear that Mr. Diemer's doubts about the success of their marriage had been allayed by the assurance of his bride-to-be that her 'main ambition' was to be with him 'in all things, for all times' and by her agreement that his faith would be her faith and his church, her church. It was in fulfillment of their agreement that the Diemers were married in the Church of the Garden, a church of Protestant persuasion, and a year and a half later Mrs. Diemer was admitted as a member of her husband's church.

In 1950, after three years of marriage, a daughter was born to the Diemers. Although it would not be accurate to say that marital discord was born with the infant, the unfortunate fact is that her baptism and subsequent religious training proved sources of contention, at first latent, but soon overt and bitter. The religious conflict which revolved about the child reached a climax and took a new form in 1954, shortly after Mrs. Diemer suffered an accident which induced in her a fear of death. She consulted a priest and, following her talks with him, issued an ultimatum to her husband. She told him that in the eyes of her Church she was not considered married to him and that, since this was so, she would not have any further sexual relations with him unless he submitted to a second ceremony in the Roman Catholic Church. In the six or seven months which followed, Mr. Diemer continued to live with his wife and made constant attempts to change her mind, but she persisted in her refusal to have sexual relations with him.

In October, 1954, realizing that his wife's decision was final and unalterable, he left home and instituted this suit. Alleging, in substance, the facts as they are set out above, Mr. Diemer characterized his wife's conduct as 'cruel and inhuman treatment', said that this conduct caused him suffering and seriously impaired his physical and mental well-being and sought relief in the form of a separation and custody of their child. Mrs. Diemer counterclaimed for separation, support and custody, but neither in her answer nor at the trial did she deny the essentials of her husband's story. In fact, on both occasions she reaffirmed that she did not consider herself married and unequivocally declared that she would not have any sexual relations with her husband until they were remarried before a Roman Catholic priest.

The trial court denied both husband and wife a separation and awarded custody of the child to the wife. On appeal by the husband his wife sought no review a divided Appellate Division affirmed the judgment. It was the view of both courts that the proof did not establish 'cruel and inhuman treatment' on the part of the wife, apparently for two reasons: first, that the wife had not 'willfully and deliberately intended to inflict mental or physical suffering' upon the husband and, second, that he had not actually suffered any damage to his health. Although we are of the opinion that the criteria thus applied were too restrictive and that the essentials of cruelty were made out in this case (cf. Sherman v. Sherman, 7 N.Y.2d 1032, 200 N.Y.S.2d 419; Hofmann v. Hofmann, 232 N.Y. 215, 218, 133 N.E. 450, 451), we prefer to place our decision of reversal and our award of a separation to the husband on the ground that the facts alleged and proved unquestionably establish the husband's right to a separation on the ground of abandonment (Civil Practice Act, § 1161, subd. 3).

Our discussion necessarily centers on an analysis of Mirizio v. Mirizio, 242 N.Y. 74, 150 N.E. 605, 44 A.L.R. 714. The parties, married in a civil ceremony, had agreed that 'they would not live together or consummate the marriage until performance of a religious ceremony' in the Catholic Church (242 N,.y., at page 76, 150 N.E. at page 606). Mrs. Mirizio refused to consummate their marriage because her husband declined to go through with the promised ceremony and, as a result, they never lived together. The wife thereupon sued for a separation based on abandonment, and the husband defended on the ground that his act of not supporting her was justified by her refusal to live with him and discharge her marital obligations. After thorough consideration of the underlying issues of law and policy, this court held that the wife's conduct amounted to 'legal misconduct' and was 'a defense to her (separation) action' (242 N.Y. at page 82, 150 N.E. at page 608).

The reasoning and policy considerations which led to our decision in the Mirizio case dictate the conclusion here. Marriage, of course, involves something far more fundamental than nere physical propinquity and, as a consequence, abandonment is not limited to mere 'technical physical separation'. (Heermance v. James, 47 Barb. 120, 126.) The essence of desertion or abandonment, this court said in Mirizio, is a refusal on the part of one spouse to fulfill 'basic obligations springing from the marriage contract' (242 N.Y. 74, 81, 150 N.E. 605, 607, supra). Obviously, not every denial of a marital right will be sufficient to support a charge of abandonment. The criterion is how fundamentally the denial strikes at the civil institution of marriage. Where primary rights and duties are involved, where the denial goes to one of the foundations of the marriage, it is the policy of our law to allow a separation from bed and board.

That a refusal to have marital sexual relations undermines the essential structure of marriage is a proposition basic to this court's decision in the Mirizio case and as obvious as it is authoritative. Sexual relations between man and woman are given a socially and legally sanctioned status only when they take place in marriage and, in turn, marriage is itself distinguished from all other social relationships by the role sexual intercourse between the parties plays in it. This being so, it may not be doubted that a total and irrevocable negation of what is lawful in marriage and unlawful in every other relationship, of what unmistakably and uniquely characterizes marriage and no other relationship, constitutes abandonment in the eyes of the law. See, e. g., Hayes v. Hayes, 144 Cal. 625, 627, 78 P. 19 (by statute); Johnson v. Johnson, 22 Colo. 20, 23, 24, 43 P. 130; Evans v. Evans, 247 Ky. 1, 7, 56 S.W.2d 547; Benton v. Benton, 197 Md. 373, 379, 79 A.2d 146; Brown v. Brown, 78 N.H. 337, 338, 100 A. 604; Weckstein v. Weckstein, 136 K.J.Eq. 113, 114, 40 A.2d 645; Darkenwald v. Darkenwald, 66 N.W.2d 57, 62 (N.D., by statute); Baker v. Baker, 99 Or. 213, 215, 195 P. 347; but see, contra, Southwick v. Southwick, 97 Mass. 327, 329; Fritz v. Fritz, 138 Ill. 436, 439, 28, N.E. 1058, 14 L.R.A. 685; Dudley v. Dudley, 225 N.C. 83, 86, 33 S.E.2d 489; Segelbaum v. Segelbaum, 39 Minn. 258, 260, 29 N.W. 492; Schoessow v. Schoessow, 83, Wis. 553, 554, 53 N.W. 856.

It is clear, therefore, that the plaintiff now before us is entitled to a separation on the ground of abandonment unless his wife had good legal cause to refuse to have sexual intercourse with him. And as to that, it is equally clear that she had neither cause nor justification. Although it appears that she acted without malice and was activated by deep-felt and conscientions religious convictions, her motives were not sufficient in law to excuse the abandonment of her marital status. If, as a result of religious scruples, she considers her marriage invalid and nonexistent and, on that account, neglects the fulfillment...