Mirizio v. Mirizio

150 N.E. 605, 242 N.Y. 74, 44 A.L.R. 714, 1926 N.Y. LEXIS 962

• Court: New York Court of Appeals
• Decided: January 22, 1926
• Status: Published

Opinions

Hiscock, Ch. J.

This action is brought under the provisions of section 1162 of the Civil Practice Act, alleging that the defendant as plaintiff's husband has abandoned and refused to support her and demanding judgment of separation with provision for support. ' The defense which thus far has been sustained is that the plaintiff has refused to live with the defendant and discharge her marital obligations and that, therefore, he has been relieved from any duty of support. There is little dispute of fact. Plaintiff and defendant were united in marriage by a civil ceremony but they were observers of the Catholic religion and, therefore, entered into an agreement that they would not live together or consummate the marriage until performance of a religious ceremony. The plaintiff has been willing and ready to have this ceremony performed and then consummate the marriage but defendant has refused to do this and, under these circumstances, the former has never lived with her husband. Possibly the findings and uncontradicted evidence might be interpreted as supporting the conclusion that the plaintiff has been unwilling to occupy in any respect the status of a wife and live under the same roof with the defendant in the absence of this religious ceremony. But probably the fairer interpretation is that in plaintiff’s mind sexual relationship with her husband will be the natural and necessary incident to living in the same home with him and that because she is conscientiously and religiously opposed to such relationship she elects to live entirely separate and apart from him unless and until the promised religious ceremony is performed when she would be willing to live with him. There is no doubt that she is governed by conscientious and religious scruples and, therefore, we are presented with the question whether a wife who from such scruples and under such circumstances and without any other reason whatever refuses to submit to ordinary marital relations with her husband can accuse him of abandonment and compel his support of her. There has been, it is true, some query whether the defendant has ever made a demand on the plaintiff that she live with bim and submit to these relations, but I do not regard that as of any importance in our consideration of the case. Concededly the plaintiff is utterly and permanently unwilling to submit to sexual relations with her husband unless a religious ceremony is performed. That has been her attitude in the past; that is her unyielding attitude now, and with that understanding the mere circumstances of a formal and futile request on his part that she live with him in the full relationship of a wife would not add at all to the actual situation as portrayed by the findings and evidence. I shall first discuss the effect of this attitude on her part without any reference to the agreement for a religious ceremony made between the parties and then that agreement.

The question whether a willful refusal of one party to a marriage contract to submit to ordinary marital physical relations with the other by and of itself amounts to a matrimonial desertion or abandonment has been the subject of widespread and long-continued debate with conflicting decisions. In England it has been held that it does not (Jackson v. Jackson, [1924] Probate Div. 19) and this view has been adopted in several of our State jurisdictions. (Southwick v. Southwick, 97 Mass. 327; Prall v. Prall, 58 Fla. 496; Fritz v. Fritz, 138 Ill. 436; Lambert v. Lambert, 165 Iowa, 367; Stewart v. Stewart, 78 Me. 548; Segelbaum v. Segelbaum, 39 Minn. 258; Cunningham v. Cunningham, 60 Penn. Sup. Ct. 622; Pratt v. Pratt, 75 Vt. 432; Schoessow v. Schoessow, 83 Wis. 553; Albert v. Albert, 137 Va. 1.)

In several of these cases, however, the decision was largely based on the peculiar wording of the statute relating to desertion. For instance in Iowa and Illinois the statute provides for “ willful ” desertion and the courts in those States held that in order to meet that provision there must be actual withdrawal from all marital relations and not repudiation merely of one. In Florida it is held that refusal of such marital intercourse does not of itself amount to “ wilful, obstinate and continued desertion ” and in Maine that such refusal does not amount to “ utter desertion ” and in other States (Wisconsin and Vermont) that such refusal does not constitute cruel and inhuman treatment or willful desertion, and in Pennsylvania the peculiar wording of the statute is controlling. In Southwick v. Southwick (supra) the decision again was largely based upon the peculiar wording of the Massachusetts statute, which, as originally enacted, provided that desertion would only arise when the guilty party had “ utterly ” deserted the other and it was held that although in later statutes the word “ utterly ” has been eliminated there was no intention to change the requirements of evidence necessary to establish desertion. The court also apparently was influenced by the early English view that such refusal did not constitute desertion, although such view largely rested upon the fact that the remedy for desertion was a suit for a decree of restitution of conjugal rights and, enforcement of such rights not being possible in respect of sexual relations, the court would not regard such refusal as desertion. The full doctrine adopted in the Southwick case seems to have been questioned in the later case of Anders v. Anders (224 Mass. 438).

The contrary view that refusal to submit to such marital relationship doe 5 amount to desertion or abandonment has been held in the following jurisdictions: Hayes v. Hayes (144 Cal. 625); Stein v. Stein (5 Colo. 55); Whitfield v. Whitfield (89 Ga. 471); Axton v. Axton (182 Ky. 286); Fleegle v. Fleegle (136 Md. 630); Campbell v. Campbell (149 Mich. 147); Graves v. Graves (88 Miss. 677); Brown v. Brown (100 Atl. Rep. [N. H.] 604); Parmly v. Parmly (90 N. J. Eq. 490); Wood v. Wood (128 Atl. Rep. [N. J.] 418); Perine v. Perine (114 S. E. Rep. [W. Va.] 871); Schoren v. Schoren (214 Pac. Rep. [Ore.] 885).

A similar view has been taken by eminent text writers (1 Bishop on Marriage, Divorce & Separation, §§ 1676, et seq.; 1 Nelson on Divorce & Separation, §§ 54, 71. See, also, interesting note on this subject, Cornell Law Quarterly, April, 1925, p. 374.) Three States, California, Georgia and South Dakota, have gone so far as to make willful refusal to submit to such relations a statutory cause for divorce.

The question has never been decided by this court. In Heermance v. James (47 Barb. 120) the foundation was laid tor holding that such refusal, without other circumstances, would amount to a desertion for it was there held that there might be desertion in the eyes of the law by one spouse of the other even though they continued to live under the same‘roof.

Perhaps it may fairly be said that the prevailing tendency in courts of this country is toward the view that refusal of this marital relationship is such a breach of obligations as to amount to a desertion or abandonment. But we are not compelled to decide that question in its full scope in the present case. The defendant is not bringing suit for abandonment because of the conduct of his wife which has been described; he is setting up her conduct as a defense to the suit which she is bringing against him for abandonment and, therefore, the question is, disregarding for the moment the agreement to which we have referred, whether a wife who lives apart from her husband because she is unwilling to live with him in the ordinary relationship of husband and wife can maintain an action against him for abandonment and to compel his support of her. It is not a matter of affirmative relief to him because of such refusal but of utilization of such refusal as a defense against the attempt of the wife to secure benefits under the matrimonial contract. If we keep this aspect of the case in mind it is, in my opinion, an answer to much that is said concerning the failure of the husband to request the plaintiff to return to him, concerning his failure to offer to provide a home for her, and concerning inadvisability of allowing a husband to procure a divorce because his wife refuses to live with him in the ordinary relationship of a wife. The wife is the one who is asserting a right and seeking affirmative relief and the burden rests upon her, before she can demand benefits under the marriage contract, of showing that she is willing to discharge her obligations under it.

Of course, we recognize that marriage while a civil contract is, from its very nature, exempt from some of the considerations which might apply to an ordinary contract for the purchase and sale of property and, therefore, a party would not be held to violate his contract and to abandon his spouse for some inconsequential dereliction of duty which might effect a repudiation of an ordinary contract. But the refusal of husband or wife without any adequate excuse to have ordinary marriage relations with the other party to the contract strikes at the basic obligations springing from the marriage contract when viewed from the standpoint of the State and of society at large. However much this relationship may be debased at times it nevertheless is the foundation upon which must rest the perpetuation of society and civilization. If it is not to be maintained we have the alternatives either of no children or of illegitimate children, and the State abhors either result. The mere fact that the law provides that physical incapacity for sexual relationship shall be ground for annulling a marriage is of itself a sufficient indication of the public policy that such relationship shall exist with the result and for the purpose of begetting offspring.

Therefore, in this case, we have the situation that one party while violating what must be regarded as a fundamental obligation of the marriage contract is endeavoring to compel the other party to that contract to live up to its obligations. Certainly this attitude of seeking to grasp the benefits of a contract with one hand while the party pushes away its duties and obligations with the other one cannot be sustained by any principles applicable to ordinary contracts. It cannot be upheld in the case of a marriage contract. The case, in my opinion, comes within the reasoning of Williams v. Williams (130 N. Y. 193). There it was held that a husband who had driven his wife away from him by harsh and unreasonable conduct would not be allowed to maintain an action for abandonment, and in this case the wife who refuses to discharge her obligations to her husband cannot be heard to find fault because she is reaping the natural results of her conduct.

The case also in my opinion comes within the principles upheld in Bohmert v. Bohmert (241 N. Y. 446). That action dealt with the case of a wife who was seeking to compel her husband to support her after she had deserted him and it turned largely on the question whether she had avoided the effects of her desertion by displaying a proper willingness to return to her husband. The principle underlying the entire discussion was that a wife who left her husband, even though she may have been moved thereto by his unreasonable conduct, was compelled to show a willingness to return to him before she could exact support from him under the marriage contract which she had violated. Substantially the same principle is- involved here. This plaintiff has refused to discharge her obligations under the marriage contract and without abating a particle from that attitude she now insists that the defendant must support her, and it is by the test of those circumstances that her right to succeed must be measured. Tested in that manner her position amounts to legal misconduct which, under the provisions of section 1163 of the Civil Practice Act, is a defense to her action to enforce such obligations. (Hawkins v. Hawkins, 193 N. Y. 409, 417; Deisler v. Deisler, 59 App. Div. 207.)

Of course we do not overlook the fact that in Risk v. Risk (202 App. Div. 299), by a closely divided court, it was held that the willful refusal of marital intercourse without withdrawal of general cohabitation did not either constitute abandonment or furnish a defense to the husband who, because of such refusal, refused to support his wife. Under the circumstances of this case and for the reasons stated we are not able to adopt the views expressed by the court in that case.

This leaves for consideration only the question whether plaintiff’s conduct is relieved of the feature of willful and inexcusable repudiation of her marriage contract by the agreement which was made between her and her husband that such contract should not be consummated until a religious ceremony was performed. There is no opportunity for uncertainty about the scope and definiteness of this agreement, for the plaintiff herself testified that the arrangement between her and her husband was “ I should live with my people, he should live with his people, until we go through the religious ceremony ” and that agreement modifying the marriage contract is the one upon which the plaintiff now relies as an excuse for refusing to carry out her marital obligations. The plaintiff’s plight naturally excites sympathy. No one questions that she is actuated by thoroughly conscientious scruples ana principles and so far as the evidence and findings disclose there is nothing to be said in commendation of the repudiation of their agreement by the defendant. And, of course, as is suggested, our law should not be unnecessarily construed in a manner which will be hostile to religion in family life or to any other of those principles of moral, ethical and considerate conduct which ought to govern the marriage relationship. But those, in my opinion, are in no sense the considerations which are before us in this case. Our State as a matter of long-continued policy, by many statutes and innumerable decisions has fixed the status of the marriage contract as a civil contract which when once executed becomes binding and carries with it certain rights, duties and obligations and the real question presented to us in this case is whether the parties to such a contract lawfully and completely entered into may modify its effect, postpone its consummation and lessen its undoubted and fundamental obligations by private agreements between themselves. In this particular case the private agreement embodies religious observances and from that standpoint is of high order. In the next case the agreement may be based on less meritorious and more selfish considerations and it requires no fertile vision to see where we may be led if the views now being urged shall prevail, that the parties by private agreement may permanently annul or indefinitely postpone the obligations which they assume when they enter into the marriage contract and defeat the policy of the State and the views which have so long and definitely prevailed in a right-minded society. In my opinion such a course as it is now suggested we ought to set out upon of recognizing modifications of the marriage contract by private agreement would lead to disruption of that contract and disaster in the attempt to enforce it. The danger always is that a court may be led by what seem in some particular case to be equitable considerations into adopting some principle which when carried to subsequent and logical application to other facts leads to results which are unfortunate and unjust.

This plaintiff with her religious scruples concerning the consummation of a marriage contract had the situation in her own control. She was not obliged to submit to a civil marriage and then rely upon her husband to carry out a religious ceremony which would satisfy her scruples. I find no evidence that he unduly persuaded or misled her into this course. She could have had a religious ceremony first and thus avoided either discomfort to herself or impairment of her marriage contract. And while she has been drawn into an unfortunate situation by what seems to be the failure of her husband to keep his promise, her agreement in my opinion furnishes no just reason for allowing her in violation of all contractual considerations to compel enforcement of a contract which she, for inadequate legal reasons, refuses to observe. Public policy in such a vital matter as the marriage contract should not be made to yield to subversive private agreements and personal considerations. The State itself has unmistakably given expression to this view. While section 51 of the Domestic Relations Law (Cons. Laws, ch. 14) in providing that the husband and wife cannot contract to “ alter or dissolve the marriage ” refers to an agreement after the marriage has been contracted, of course its plain purpose and principle would be violated by allowing parties to make such an agreement for the purpose of altering the marriage contract just as it was being entered into.

For these reasons I think the judgment should be affirmed, without costs.