Mirizio v. Mirizio , 242 N.Y. 74 ( 1926 )

The plaintiff and the defendant were married in the borough and county of The Bronx, city and State of New York, on the third day of September, 1921. The marriage ceremony was performed by the civil authorities. The parties are man and wife under the law of this State and the obligations arising therefrom are as binding at law as if the ceremony were performed according to some religious rite.

The parties have never lived together because the defendant has failed and refused to provide a home for his wife. This action is for support and maintenance. The wife so far has lost.

The defendant admits in his testimony in this case that he has never offered a home to the plaintiff or provided her with one. He apparently has an idea, and this case has proceeded upon the theory, that because the wife refused to have intercourse with him the marriage has never been consummated and he is not obliged to provide for her. Such is not the law. The refusal by the wife of marital intercourse is not sufficient to justify the husband in abandoning her and does not constitute abandonment on the part of the wife. (Risk v. Risk, 202 App. Div. 299; Franklin v.Franklin, 154 Mass. 515; Anonymous, 52 N.J. Eq. 349;Cunningham v. Cunningham, 60 Penn. Super. Ct. 622; Stewart v. Stewart, 78 Me. 548; Fritz v. Fritz, 138 Ill. 436.) The cases in the various States are fully reviewed in the Risk case.

There would be no end of litigation if the intimate relations between husband and wife regarding what have been termed "marital rights" were the subject of inquiry. Sickness, insanity and temperament have often deprived men of these privileges, and yet they have met bravely the obligations to support the woman whom they have chosen for a wife. Refusal to have intercourse or inability to have it, except where it is due to some malformation making it physically impossible, is no ground for divorce and no defense to an action for support in this State. A different idea has evidently been in the minds of the defendant and his counsel. In the affidavits submitted on the motion for alimony and counsel fee which form a part of this record, the defendant states: "The sole tie that exists between the parties is the marriage ceremony at Borough Hall." (This "sole" tie is the only one the law requires.) "Deponent here admits that he has not supported his wife since July of this year, and declines the same on the ground that she has refused to be a wife to him. The plaintiff cannot succeed in this action, unless she shows that she is willing to live with defendant as husband and wife."

What the defendant here means is that the plaintiff refused to cohabit with him as his wife. He does not mean that she will not live with him in a home to be provided for her and take care of him and consort with him as his wife, otherwise. He has refused from the beginning to provide a home for her, or to support her until she consents to cohabit with him.

She desires a religious ceremony before giving this consent. With that we have nothing whatever to do. What may move her conscience is none of our concern. She is the defendant's wife; he is bound to support her, to provide her with a home or give her the means to live. If she refuse to live with him, he need not support her. If she consent to live with him and does live with him and perform her duties faithfully as a wife otherwise, the fact that she refuses to have intercourse is no justification to the defendant in abandoning her or turning her out.

Immediately after the ceremony the defendant brought actions, — three, so the affidavits state, to annul the marriage. In this effort he failed.

The testimony on the trial was very brief; it deals largely with what the parties have been willing or are unwilling to do. The main point contested apparently has been the unwillingness of the wife to cohabit. This, as I have stated above, is not the question in this case, except as it may bear upon her willingness or refusal to live with the defendant. She swears that she is willing to live with the defendant if he provides her a home, and that he has never given her any support or offered to provide her with a place to live. As I read this record, the defendant will not do this unless the plaintiff consents to cohabit with him. His duty is to provide a home in the first instance, and take his wife into it. After that, matters may adjust themselves. A little tact and kindness upon the part of the defendant would probably remove the necessity for appearances in court. The position of the defendant is in my judgment unreasonable and unjustifiable. That he is the plaintiff's husband he does not deny. That he is bound to support her and provide her with a home the law makes emphatic. The defendant has failed and refused to provide this home. He tries to excuse his failure upon the ground that his wife says anddeclares that she will not cohabit with him. This is not a case where the man and wife are living together, and the wife so refuses after solicitation. The defendant has first failed in his duty as a husband. He justifies his failure and breakdown of all matrimonial obligations because of what his wife threatens to do. A little knowledge of womankind would be more helpful to defendant than a lawsuit. It is the proverbial privilege of women to change their minds. A little forbearance, gentleness and consideration for the feelings of others will accomplish what force will fail to do.

Besides, there is a large matter of public policy involved in a case like this. The man and wife are not the only ones interested. The public is largely concerned in this question of divorce and the dissolution of homes. Any judge who has held a Special Term in our large cities is acquainted with the large number of uncontested divorce cases, and has had the feeling that they are frequently based upon perjury. The number of divorces is a matter of public comment and criticism. While the courts must grant decrees where honest testimony brings the case within our statutes, yet at the same time they should be careful not to let down the barriers or make it easy for deception. If the law is going to permit a man to get a separation because of non-intercourse, the next step will be to permit him to obtain a dissolution of the marriage upon the same ground where it has not been consummated. This would open wide the door for the annulment of marriages where absolute divorces could not be obtained upon the statutory ground. How is the court to determine whether the wife has refused the marital privileges, if both she and her husband are desirous of dissolving the marriage and she fails to appear in his action for annulment? It appears to me that we are going very far to encourage false and fraudulent claims and practices when we permit actions for desertion or annulment on the ground of non-intercourse, and start the courts to investigate whether a woman has or has not refused to cohabit. From an academic standpoint such a law may be reasonable; from a judicial-governmental standpoint it is impractical.

In view of the way in which this case has been tried and disposed of below, the judgment and dismissal of the complaint should be reversed and a new trial should be ordered. If upon this new trial the defendant still persists in his attitude and refuses to support his wife unless she cohabits with him, then judgment must be given in her favor, provided she is willing to live with him and perform all the other duties of a wife. If she refuses to live with him until a religious ceremony is performed, then judgment should be given for the defendant.

The judgment should be reversed, and a new trial ordered.