Shenk v. Shenk
563 So. 2d 1000, 1990 WL 79930 (1990)
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Rule of Law:
A spouse's long-term refusal to engage in sexual relations does not constitute legal fault sufficient to bar an award of permanent alimony if the refusal is justified by a physical or mental health condition. Such conduct is excused when it is involuntarily induced by a preexisting illness.
Facts:
- David H. Shenk and Jan Reynolds Shenk were married in 1971.
- During their marriage, Jan Shenk suffered from frequent urinary infections related to sexual intercourse, which resulted in surgery.
- Jan Shenk, a victim of sexual abuse as a child, received a letter from her abuser during the marriage, which an expert testified triggered depression and sexual retreat.
- For a period of approximately 8 to 12 years prior to their separation, the couple did not engage in sexual relations.
- During this 8 to 12 year period, David Shenk requested sexual relations 3 or 4 times and was refused, after which he ceased asking.
- David Shenk admitted to engaging in an adulterous relationship during the marriage.
Procedural Posture:
- David Shenk filed a petition against Jan Shenk in a Louisiana trial court for separation from bed and board.
- Jan Shenk filed a reconventional demand (counterclaim) alleging abandonment and adultery.
- The trial court granted a judgment of divorce in favor of David Shenk.
- Following the divorce, the trial court held a separate proceeding on the issues of fault and permanent alimony.
- The trial court found Jan Shenk to be free from legal fault and ordered David Shenk to pay $1000 per month in permanent alimony.
- David Shenk (appellant) appealed the trial court's judgment on fault and alimony to the Court of Appeal of Louisiana, Fourth Circuit, against Jan Shenk (appellee).
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Issue:
Does a spouse's long-term refusal to engage in sexual relations constitute legal fault precluding alimony, when that refusal is based on a combination of physical and psychological health issues?
Opinions:
Majority - Becker, J.
No, a spouse's refusal to engage in sexual relations does not constitute legal fault under these circumstances. While persistent and unjustified refusal to engage in sexual intercourse can constitute cruel treatment and fault, the complaining spouse bears the burden of proof. Here, David Shenk failed to prove 'persistent refusal' by asking only 3 or 4 times in 12 years; his inaction could be interpreted as consent. More importantly, Jan Shenk's refusal was justified and excused because it was involuntarily induced by pre-existing conditions: a physical illness (urinary infections) and a mental health condition (trauma from past sexual abuse triggered by a letter from her abuser). Actions that would normally constitute cruel treatment are legally excused when caused by such illnesses. Therefore, Jan Shenk is free from fault and eligible for alimony, although the amount is reduced to exclude impermissible expenses.
Dissenting - Barry, J.
Yes, the wife's refusal to engage in sexual relations for 8 to 12 years constitutes legal fault. A mutual obligation to maintain a normal sexual relationship is a core marital duty. David Shenk did not consent to the lack of sexual relations; he was rejected and then gave up. The wife's justifications for her refusal—child abuse and a urinary infection—were unsubstantiated by concrete evidence at trial and her claims of 'mental illness' are not supported by the record. The fact that she entered a new sexual relationship shortly after the divorce undermines her claims. Her failure to fulfill her marital duties was an act of omission that constitutes fault, and she should not be rewarded with alimony.
Analysis:
This decision refines the concept of 'fault' in divorce proceedings by clarifying the legal effect of refusing sexual relations. It establishes that such a refusal, even over a long period, is not fault per se if it is justified by documented physical or mental health issues. The ruling places a significant burden on the complaining spouse to prove that the refusal was both 'persistent' and 'unjustified,' suggesting that infrequent requests may be construed as tacit consent, weakening a claim of fault. This precedent provides a significant defense for spouses whose inability to engage in intimacy stems from medical or psychological conditions beyond their control.
