Jacobsen v. Jacobsen

• Decision Date: 12 April 1954
• Court: New York Supreme Court
• Parties: Dolores Jacobsen, Plaintiff,<BR>v.<BR>Robert W. Jacobsen, Defendant.<SUP><A onclick=scife_fn_clicked(); href="#[1]" name=r[1]>[*]</A></SUP>

205 Misc. 584

Dolores Jacobsen, Plaintiff,

v.Robert W. Jacobsen, Defendant.^[*]

April 12, 1954.

James E. Bennet for defendant.

Kurlander & Kurlander for plaintiff.

BRENNER, J.

Upon trial of the wife's action for separation the husband moves to dismiss the complaint after resting and offering no proof to contradict his wife's testimony that despite advances made by her, the parties did not have sexual intercourse for a year and a half and that since August, 1953, they have slept in separate rooms in the same apartment.

Thus, this case presents a clear cut question, not yet squarely settled in this State, whether prolonged failure to cohabit following request is grounds for separation upon the theory of abandonment, cruelty or both.

The husband contends that the male does not respond to mere demands and can be aroused only by encouraging action on the part of the wife such as serving meals, remembering his birthday and catering to his daily wants. In short, he insists that he could respond to her demands for marital relations only if she conduct herself in such manner as to win his good will and friendship. He claims, therefore, that having failed to offer such proof, the wife has not made out a prima facie case even though she testified that on several occasions during this long period of estrangement she asked him to have intercourse with her and that he had refused. The husband further urges that the wife is not entitled to a separation for his failure to indulge in marital intercourse because on her own testimony she did everything to discourage him by often staying out late at night after leaving him with the baby, and, on occasion, munching a sandwich and cracking pistachio nuts while he was trying to sleep. However, her testimony remains uncontradicted that the latter third of their married life the parties, though physically capable thereof, indulged in no such sexual relations and that since August, 1953, they occupied separate beds in separate rooms. Nor is her testimony disputed that "I was rebuffed when I tried. When I approached him he said he preferred it that way and I feel degraded and it has caused me strain mentally and physically."

While the evidence does not disclose the origin or the circumstances of the breakdown of the marriage, it is manifest that practically all contact, companionship and marital life have ceased and deteriorated to the point that they live as strangers in the same apartment. Undoubtedly a wife should encourage the husband and perhaps her feminine allure might be even preferable to meals on time, to be remembered on birthdays and to enjoy good will. But even in this age of woman's emancipation, nature still requires that the male be the aggressor. No doubt, in the absence of sex life, the lady has turned to food. In her chagrin she probably finds satisfaction in munching sandwiches and cracking pistachio nuts in bed. Perhaps she does this to awaken and remind him of his marital obligations, but he apparently prefers sleep to performing those obligations.

It has been wisely said that public policy militates against granting a separation decree for refusal to partake of sexual intercourse (dissenting opinion of Judge CRANE in Mirizio v. Mirizio, 242 N.Y. 74, 87). But in such instances we deal with an occasional violation of the marital obligation which should not too readily give cause to destroying the marital status (Risk v. Risk, 202 App. Div. 299).

But the facts in this case show that the husband did more than occasionally refuse sexual intercourse for there was a complete cessation not only of intercourse but of all cohabitation. It is interesting to note that in Risk v. Risk (supra, p. 304) so greatly relied upon by the defendant, the court used the following language: "Whether the...