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Grounds For Divorce - Cruel and Inhuman Treatment

The Domestic Relations Law, Section 170(1) provides that an action for divorce
may be maintained by a husband or wife to procure a judgment divorcing the parties
and dissolving the marriage on the ground of "the cruel and inhuman treatment of the
plaintiff by the defendant such that the conduct of the defendant so endangers the
physical or mental well being of the plaintiff as renders it unsafe or improper for the
plaintiff to cohabit with the defendant."
In Hessen v Hessen, (1974) 33 NY2d 406, 353 NYS2d 421, 308 NE2d 891.
a 1974 decision, the Court of Appeals in a unanimous opinion by Chief Judge Brietel,
rejected a restrictive interpretation of the cruel and inhuman treatment ground,
accepted the policy behind the "double standard" to the extent that financial hardship
on the wife and the duration of the marriage were factors to weigh and balance in
determining whether or not a divorce judgment should be entered against a wife on
such ground. The Court also approved of an approach similar to that utilized in fixing
alimony awards in the Phillips Case, and said that the hardship factor was relevant in
determining the degree, scope and probable effect of misconduct between spouses.
In Phillips v. Phillips (1956, 1st Dept) 1 App Div 2d 393, 150 NYS2d 646, affd
2 NY2d 742, 157 NYS2d 378, 138 NE2d 738 the court gave as the appropriate
criteria for alimony awards, "the financial status of the respective parties, their age,
health, necessities and obligations, their station in life, the duration of the marriage,
and the conduct of the parties." The observation was made that "An appearance of
misconduct, which in a matured marriage might fail to justify a finding a substantial
misconduct, but only of transient discord, may in a newer marriage justify or even
compel an inference of substantial misconduct."
With regard to what had been a strict construction of Section 170(1), during
the years since the enactment of the 1966 Divorce Reform Act, the Court of Appeals
made it clear that such was unwarranted by statutory language and legislative history.
It was held that the cruel and inhuman treatment ground does not require that
cohabitation be "unsafe" in addition to being "improper" nor does it permit divorce on
the basis of mere incompatibility.
The Court noted that prior to the Divorce Reform Law of 1966, when adultery
was the sole ground for divorce in New York, cruel and inhuman treatment had been
a ground for separation, and legal separation was granted only where the petitioner
proved both physical or mental injury and that the physical or mental injury made
cohabitation unsafe. Judge Breitel made the point that under the Divorce Reform Law,
"it was intended that marital misconduct to constitute cruel and inhuman treatment
be distinguished from mere incompatibility, and that serious misconduct be
distinguished from trivial."
The Court stated further that while the restrictive Appellate Division opinion in
the 1970 Rios Case, (1970, 1st Dept) 34 App Div 2d 325, 311 NYS2d 664, affd 29
NY2d 840, 327 NYS2d 853, 277 NE2d 786. relied on the old rather restrictive cases,
"this court in affirming without opinion did not adopt precisely" its rationale.
Therefore, said Judge Breitel, the correct view would seem to permit the court below
"to exercise a broad discretion in balancing the several factors in each case."
Judge Breitel, emphasized that "special weight must be given section 236 if a
divorce is to be granted for cruel and inhuman treatment. Needless to say, the loss of
support for the wife may be particularly inappropriate in the case of a dependent older
woman. Indeed, unless the Legislature sees fit to limit the scope of section 236 to bar
support only for grievous forms of misconduct, the effect on the right to support must
continue to be an influential factor, as a matter of legislative interpretation, in
determining the meaning of section 170."
Brady v. Brady, 101 AD2d 797, 475 NYS2d 470 (2d Dept., 1984), aff'd 64
NY2d 339, 476 NE2d 290, 486 NYS2d 891 (1985) decided by the Court of Appeals
in 1984, ten years after Hessen v. Hessen, is the leading case on what constitutes
cruel and inhuman treatment. In Brady, Special Term granted the husband a divorce
based on cruel and inhuman treatment, and awarded the wife support. At the trial,
the husband testified that on several occasions during 1976, his wife physically
assaulted him. According to the husband, the wife had asked him to leave the marital
home in 1977, but for the next two years he returned home at irregular intervals. He
left permanently in 1979. He further testified that after 1976 he and his wife only had
sexual relations once, despite his repeated advances. The trial court concluded that
this twenty-six year marriage was a "dead marriage", and even though the assaultive
acts that the husband alleged occurred in 1976 were insufficient to support a divorce
on cruel and inhuman treatment, the court granted plaintiff a divorce as a matter of
discretion. The Appellate Division, Second Department, modified the judgment and
dismissed the cause of action for divorce, stating that such discretion cannot be
exercised in a manner at variance with the established law in New York.
The Court of Appeals affirmed the Appellate Division's decision. 64 NY2d 339,
476 NE2d 290, 486 NYS2d 891 (1985) In so doing, the Court held that the principles
set forth in Hessen, detailing the necessary showing of cruel and inhuman treatment
in a long-term marriage, are still to be followed.
Subsequent cases after Hessen established that a plaintiff must generally show
a course of conduct by the defendant spouse that is harmful to the physical or mental
health of the plaintiff, thereby making cohabitation unsafe or improper. See Brady, 64
NY2d at 339, 476 NE2d at 290, 486 NYS2d at 891; Phillips v. Phillips, 70 AD2d 30,
419 NE2d 573 (2d Dept., 1979); Carratu v. Carratu, 70 AD2d 503, 415 NYS2d 835
(1st Dept., 1979) Bruhuber v. Bruhuber, 58 AD2d 1015, 397 NYS2d 42 (4th Dept.,
1977); John W.S. v. Jeanne F.S., 48 AD2d 30, 367 NYS2d 814 (2d Dept., 1975).
The Applicable statute requires a finding of fault, and a showing of mere irreconcilable
or irremediable differences is thereby insufficient. See Hessen, 33 NY2d at 410, 308
NE2d at 894, 353 NYS2d at 425-26 (citing NY Dom. Rel. Law 170(1) 1977).
Citing Hessen, the Brady court pointed out that the determination of whether
conduct constituted cruel and inhuman treatment would depend, in part, on the length
of the parties' marriage, because what might be considered substantial misconduct in
the context of a marriage of short duration, might only be "transient discord" in that
of a long marriage. Chief Judge Wachler, writing the opinion for a unanimous Court
in Brady, rejected the plaintiff's argument there was no longer any reason to require
a higher showing of misconduct in long-term marriage.
As to plaintiff's contention that the rationale for the Hessen rule had been
eliminated by the equitable distribution law, the Brady Court stated that the
fundamental reason for such a rule was, and remains, the common-sense notion that
the conduct that the plaintiff alleged as the basis for a cause of action must be viewed
in the context of the entire marriage, including its duration, when deciding whether
particular actions can be properly labeled as cruel and inhuman treatment. In affirming
the order of the Appellate Division, the Court stated:
"Therefore, we reaffirm the holding in Hessen that whether
a plaintiff has established a cause of action for a cruelty
divorce will depend, in part, on the duration of the marriage
in issue. The existence of a long-term marriage does not,
of course, serve as an absolute bar to the granting of a
divorce for cruel and inhuman treatment, and even in such
a marriage "substantial misconduct" might consist of one
violent episode such as a severe beating. Id at 345, 476
NE2d at 293-94, 486 NYS2d at 894-95 (citing Echevarria
v. Echevarria, 40 NY2d 262, 353 NE2d 565, 386 NYS2d
653 (1976); see Tripi v. Tripi, 94 AD2d 944, 463 NYS2d
958 (4th Dept., 1983)."
Since Brady, our courts have strictly adhered to the Hessen-Brady standards
and have denied divorces in long-term marriages when the pleadings or proof did not
meet the high standards enunciated by the Court of Appeals.
In a marriage of long term duration a party seeking a divorce on the grounds of
cruel and inhuman treatment must show serious misconduct and not mere
incompatibility. In a marriage of long duration, "a high degree of proof is required to
establish cruel and inhuman treatment." Green v. Green, 127 AD2d 983, 513 NYS2d
49 (4th Dept., 1987) The marital strife must be "extreme" and "of such character to
effect or impair" the health of the party seeking the divorce. Dunnells v. Dunnells, 117
AD2d 961, 499 NYS2d 271 (3d Dept., 1986). "What is required is a showing of a
course of conduct by the defendant spouse which is harmful to the physical or mental
health of the plaintiff and makes cohabitation unsafe or improper." Kleindust v.
Kleindust, 116 AD2d 988, 498 NYS2d 610 (4th Dept., 1986)
Brady has been strictly followed, and the result is that where the marriage is of
long duration and the testimony or evidence demonstrates that the parties only have
irremedial or irreconcilable differences, a divorce on the grounds of cruel and inhuman
treatment will be denied.
In Andritz v.Andritz (1987, 2d Dept) 131 App Div 2d 529, 516 NYS2d 262,
Appellate Division held that in this marriage of long duration where the allegations of
cruelty basically set forth that the parties have irreconcilable or irremedial differences
and this marriage is dead are insufficient particularly where the marriage is of long
duration.
In Green v. Green (1987, 4th Dept) 127 App Div 2d 983, 513 NYS2d 49,
Appellate Division held that trial court erred in granting plaintiff wife a divorce on cruel
and inhuman treatment. In a marriage of long duration such as this where plaintiff
testified that the marriage lacked communication and sexual intimacy, that defendant
pushed her a few times causing minor bruises, that as a result of such conduct she
gained excessive weight and offered no medical proof to establish that her health was
adversely affected by defendant's alleged conduct. The divorce should not have been
granted.
In Stagliano v. Stagliano (1987, 4th Dept) 132 App Div 2d 975, 518 NYS2d
506, Appellate Division reversed judgment awarding the wife of 25 years a divorce
based upon cruel and inhuman treatment. Plaintiff testified that defendant did not
speak to her for days at a time; that the marriage lacked sexual intimacy; that
defendant ridiculed her in the presence of others and refused marital counseling and
as a result she suffered high blood pressure, nervousness and heart problems. She
offered no medical proof, and acknowledged the lack of sexual intimacy was a
combination of his choice and hers. Here, the record established only that relations
between the parties have been strained and unpleasant and cannot support a cause
of action for divorce.
In Marrow v. Marrow (1986, 4th Dept) 124 App Div 2d 1000, 508 NYS2d 789,
Appellate Division reversed on the law a judgment dismissing the complaint at the
conclusion of plaintiff's case. Plaintiff placed into evidence a family court filiation order
and defendant admitted at his examination before trial that he was paying support for
said child. This is sufficient to support a prima facie case of adultery to defeat
defendant's motion to dismiss. Here the trial court did not pass upon the sufficiency
of plaintiff's proof, apparently in the belief that defendant established the defense of
recrimination on plaintiff's direct case. Such finding had to have been based primarily
on defendant's testimony, which violates CPLR 4502(a) and should have been
disregarded. Plaintiff likewise established a prima facie case of cruelty based on
defendant's adulterous conduct.
In Pone v. Pone (1987, 3d Dept) 129 App Div 2d 957, 515 NYS2d 338,
plaintiff's complaint alleged that during the past 4 years of their 25 year marriage,
defendant has been "cold, calculating and loveless", and has shown plaintiff "no
personal affection or emotion". The complaint further alleges that due to the "extreme
tension" caused by defendant's behavior, plaintiff has been unable to engage in his
occupation as a musical composer, conductor and professor. Appellate Division
reversed on the law an order which failed to dismiss the complaint for failure to state
a cause of action. The allegation falls far short of meeting the heavy burden imposed
on plaintiff.
In Mallin v. Mallin NYLJ, 2-2-88, p. 6, col. 6, Sup. Ct. NY Co. (Baer, J.), an
action for divorce both parties appeared at the inquest and acknowledged that they
signed a settlement agreement on June 24, 1987. The parties were married more than
28 years and the court found that the examples of marital discord the plaintiff testified
to compelled it to dismiss the cause of action based on cruel and inhuman treatment.
Here the plaintiff testified that defendant made derogatory remarks to her and behind
her back at social and professional functions, embarrassed her, made malevolent
grimaces like a gargoyle to plaintiff in public and in private and refused to make repairs
to the house which constituted a safety hazard.
In Del Gatto v. Del Gatto (1988, 2d Dept) 142 App Div 2d 545, 530 NYS2d
584, the Appellate Division affirmed a judgment which dismissed the husband's cause
of action for divorce, awarded the wife maintenance, child support and exclusive
occupancy of the marital residence. A plaintiff relying on the cruelty ground must
show a course of conduct by the defendant which is harmful to the physical or mental
health of the plaintiff and makes cohabitation unsafe or improper. Conduct presenting
a picture of an unhappy, acrimonious and incompatible couple does not rise to that
level.
Chinnis v. Chinnis (1986, 3d Dept) 119 App Div 2d 965, 501 NYS2d 227,
Appellate Division held that allegations of verbal abuse, religious harassment and
refusal to engage in marital relations constituted a course of conduct, which if proven
at trial, could conceivably be determined to endanger plaintiff's mental well-being so
as to make the parties' continued cohabitation unsafe or improper. Thus special term
did not err in declining to dismiss the complaint.
In Elkaim v. Elkaim (1986, 2d Dept) 123 App Div 2d 371, 506 NYS2d 450,
Appellate Division reversed judgment of divorce to wife and dismissed complaint
without prejudice to be institution of a new action for divorce on the grounds of
abandonment. In her complaint, which was never amended, plaintiff sought a divorce
on the ground of cruelty, although she alleged an abandonment in August 1982. At
trial defendant did not admit the abandonment. The fact that he indicated in his post
trial memo that he did not dispute the granting of a divorce on abandonment is
insufficient to support the trial court's finding that he abandoned plaintiff. A judgment
of divorce can be entered only on competent oral proof or upon written proof that may
be considered on a motion for summary judgment. [DRL 211] Since plaintiff did not
establish her entitlement to a divorce based upon her pleading or the evidence at trial
the divorce and equitable distribution must be reversed.
In Breckinridge v. Breckinridge (1984, 3d Dept) 103 App Div 2d 900, 478
NYS2d 136, in affirming an order of the trial court which dismissed the wife's
complaint for a divorce on the grounds of cruelty, the court noted that in this 23 year
marriage, lack of communication and unpleasantness of the husband (excessive
criticism of wife and children, beat dog, lack of attentiveness in social situations) failed
to meet the high degree of proof of serious misconduct. Fact that the parties agreed
they had no sexual relations since 1978 does not give rise to abandonment as they
acquiesced in that relationship. Trial court has wide discretion.
In Johnson v. Johnson (1984, 2d Dept) 103 App Div 2d 820, 478 NYS2d 54,
a 26 year marriage the appellate division reversed, on the law, a judgment of divorce
to the husband on the grounds of cruelty. "Allegations that defendant was frequently
absent from the marital home during the last year of the marriage, and had assaulted
him on two occasions, do not entitle him to a divorce where there was no evidence
the conduct so endangered the physical or mental well being of the plaintiff as
rendered it unsafe or improper for him to continue to cohabit with defendant. "High
degree of proof required in long marriage. No proof that defendant deleteriously
affected by the plaintiff.
Kleindinst v. Kleindinst (1986, 4th Dept) 116 App Div 2d 988, 498 NYS2d 610.
Appellate Division held that evidence established nothing more than relatively minor
unpleasant incidents occurring periodically during 30-year marriage, but which did not
indicate that wife engaged in conduct harmful to physical or mental health of husband
and which did not show wife's conduct caused husband's weight loss of 30 pounds,
was insufficient to establish cruel and inhuman treatment by wife. Consideration must
also be given to the length of the marriage. In a marriage of long duration, a higher
degree of proof is required. In any event, plaintiff offered no medical proof.
In Miller v. Miller (1984, 2d Dept) 104 App Div 2d 1032, 480 NYS2d 947, the
Appellate Division a affirmed judgment which denied husband a divorce. To obtain a
divorce must show conduct which "seriously affects the health of the spouse and
threatens to impair it." (or a pattern of actual physical violence).
In O'Connell v. O'Connell (1986, 3d Dept) 116 App Div 2d 823, 497 NYS2d
211, the Appellate Division affirmed a judgment which denied wife a divorce for
insufficient proof under DRL 170(1). While the trial court has broad discretion such a
divorce cannot be granted where the court concludes there is a dead marriage.
Further, a high degree of proof is required where there is a marriage of long duration
(22 years here).
In Skala v. Skala (1985, 2d Dept) 111 App Div 2d 319, 489 NYS2d 303, the
Appellate Division affirmed jury verdict denying husband a divorce. It will not be
granted where the plaintiff merely shows irreconcilable differences and incompatibility.
Tsakis v. Tsakis (1985, 2d Dept) 110 App Div 2d 763, 488 NYS2d 51,
Appellate Division reversed judgment of divorce to wife under DRL 170(1) and
provision of judgment which directed the sale of marital residence. N.Y. does not
permit divorce on a "no-fault" basis or merely because the marriage is dead.
Volmer v. Volmer (1986, 3d Dept) 116 App Div 2d 960, 498 NYS2d 237.
Where parties were married in 1961 Appellate Division held that wife failed to
establish grounds for divorce under DRL 170(1). A high degree of proof is necessary
to dissolve a marriage of long duration. Court held that defendant's late night
absences from the marital home over a 4 month period were insufficient to establish
cruelty and noted that plaintiff testified to minimal mental anguish.
Wachtel v. Wachtel (1985, 2d Dept) 114 App Div 2d 952, 495 NYS2d 216,
Appellate Division affirmed order which dismissed husbands cause of action under
DRL 170[1]. Where the marriage is of a long duration a high degree of proof of cruel
and inhuman treatment is required to be shown. Evidence that
plaintiff's distressed mental state had been caused by factors other than marital
difficulties would militate against dissolution. In addition he continually returned to the
home after brief separations, which indicated it was not unsafe or improper to cohabit
with defendant.
Hage v. Hage (1985, 3d Dept) 112 App Div 2d 659, 492 NYS2d 172, the
Appellate Division affirmed a judgment denying the wife a divorce based upon cruel
and inhuman treatment. Whether conduct constitutes cruelty depends in part on the
duration of the marriage with a greater showing required for a longer marriage.
Although the parties are incompatible, a divorce cannot be granted because there is
a dead marriage.
In Marciano v. Marciano (1990, 4th Dept) 161 App Div 2d 1163, 555 NYS2d
518, app den 76 NY2d 707, 560 NYS2d 989, 561 NE2d 889, the Appellate Division
reversed a judgment of divorce in this marriage of long duration, vacated the
distribution of marital property and the award of exclusive occupancy to the wife.
Plaintiff testified there were six occasions between 1982 and 1985 when the parties
argued and defendant used obscene and vulgar language. On one occasion defendant
pounded plaintiff's chest and grabbed his genitals. Plaintiff testified that as a result of
such conduct he was upset and embarrassed, his ulcer was irritated and his work
performance adversely affected. No medical proof was presented. A high degree of
proof is required in a marriage of long duration. The awards of child support, spousal
maintenance and counsel fees were affirmed.
In Ostriker v. Ostriker, NYLJ, 6-6-90, p.29, col. 6, Sup.Ct., Nassau Col.
(Winick, J.), an action for divorce commenced days prior to the enactment of the
Equitable Distribution laws in 1980, the Supreme Court denied plaintiff-wife a divorce,
for failure to establish cruel and inhuman treatment under DRL $ 170(1) or
(constructive) abandonment under DRL 170(2). This was a thirty-year marriage, which
the Court held to be practically "dead" and long dying when the action was
commenced. However, plaintiff's claim of cruel and inhuman treatment was not
established because there was no proof of physical abuse by the husband and no
proof that continued cohabitation would endanger the wife's life or well being. The
Court denied plaintiff's constructive abandonment claim because the blame for the
long term cessation or marital relations was shared, "equally divided between the
spouses it cannot be said that there was an unjustified refusal by the husband to have
sex with a wife who was not about to let him anywhere near her." Defendant's two
corresponding counterclaims were denied for the same reasons. The Court granted the
husband's counterclaim for a declaration that the marital residence was held by the
plaintiff as trustee for the benefit of both spouses. The transfer of the house to the
wife alone, in 1972, to shield it from the husband's creditors, did not constitute a
"gift" to the wife, as it was made at her request, to protect her own interests from the
husband's creditors. The wife was denied alimony because she was able to be
self-supporting. Counsel fees were also denied the plaintiff, for failure to show that
her need was greater than the husband's "alleged superior ability to pay."
In order for the court to grant a divorce on cruelty grounds there must be
substantial evidence of cruel and inhuman treatment no matter which spouse is the
plaintiff.
In Rispoli v. Rispoli (1987, 2d Dept) 131 App Div 2d 556, 516 NYS2d 280,
Appellate Division affirmed judgment which granted wife a divorce on cruelty grounds.
The findings of the trial court on the issue of cruelty will not lightly be overturned on
appeal. Corroboration is not required. While this is a marriage of long duration, the
record supports the findings as to specific acts of substantial misconduct by the
husband during the preceding 5 years which included 3 incidents of physical abuse.
In Tortorello v. Tortorello (1987, 2d Dept) 133 App Div 2d 683, 519 NYS2d
853, Appellate Division affirmed judgment which granted wife a divorce on grounds
of cruel and inhuman treatment after hearing the conflicting testimony of the parties.
This determination, which necessarily involved crediting the plaintiff's testimony as
to several incidents of violence by the defendant against her and necessarily rejecting
the defendant's denial of those incidents was well within the domain of the Trial
Court.
Kern v. Kern (1985, 3d Dept) 115 App Div 2d 818, 495 NYS2d 776. In this
29 year marriage Appellate Division held that husband satisfied burden of high degree
of proof of cruelty. Defendant denied plaintiff's charge of drunkenness but admitted
the substance of most of the allegations explaining that severe depression accounted
for her mood change. She did not deny experiencing repeated 4 month periods of
depressed withdrawal from family life and responsibilities and constantly harassing and
haranguing plaintiff. Assuming that the trial court credited plaintiff's testimony that
defendant's ranting, raving, offensive language and threats were precipitated by her
misuse of alcohol plaintiff was entitled to a fault based divorce.
Ledesma v. Ledesma, NYLJ, 9-24-87, P.11, Col. 6, Sup Ct. NY Co, (Baer, J.),
parties married in 1975 and plaintiff alleged that defendant locked her out of marital
residence in September 1984, and permanently in November 1984; that he forbade
the children to talk to her for a number of months, struck her on 2 occasions,
constantly accused her of being "evil", "being the devil" and being a prostitute; that
he refused to permit her to watch TV or listen to radio other than religious and news
programs; forced her to attend his church; and refused to have sexual relations with
her for over a year. Court awarded plaintiff a divorce on grounds of cruelty and
constructive abandonment.
Melnick v. Melnick (1985, 1st Dept) 115 App Div 2d 416, 496 NYS2d 221,
Appellate Division reversed order which dismissed husbands complaint for divorce
under DRL 170(1). It held that in a 20 year marriage, where the complaint set forth
4 allegations of physical abuse (throw objects; slammed door on arm) and there were
allegations of mental abuse (obscenities) it set forth a cause of action for divorce
based on cruelty.
Flynn v. Flynn, NYLJ, 3/20/89, P.26, Col.3, Sup. Ct., Nassau Co. (Winick, J.),
in this action for divorce where the parties were married 30 years the Supreme Court
found that the husband's admissions to his wife that for 14 years of those years he
had another woman as a girlfriend and lover, even without concrete proof of an
adulterous relationship other than telephone calls to the woman and the purchase of
an airplane ticket for a return trip to New York from Florida with the woman,
constituted a sufficient basis to grant the wife a divorce on the grounds of cruel and
inhuman treatment.
McKilligan v McKilligan (1989, 3d Dept) 156 App Div 2d 904, 550 NYS2d 121,
in this marriage of more than 25 years, the Appellate Division affirmed the judgment
which granted the wife a divorce on the grounds of cruelty. It found that the
complaint alleged that over the prior five years, defendant (1) absented himself from
plaintiff and children, and completely removed himself from social intercourse with the
family, (2) did not converse with plaintiff and directed her to write notes to him, (3)
permitted the household heating and plumbing system to fall into disrepair, creating
health hazards for household members, (4) refused to talk about family finances or
defendant's corporation, (5) showed no affection or caring toward plaintiff and had
ended sexual contact with plaintiff, (6) was cold and uncaring, causing the children
to suffer emotionally and one child to develop severe migraine headaches, (7) made
it impossible and unsafe for plaintiff to continue to cohabit with defendant in the
marital home. Plaintiff's claims of long-term cruelty and her testimony that she so
feared defendant that she became physically and mentally debilitated were
corroborated by testimony of other family members, outsiders and medical experts.
Supreme Court allowed testimony as to incidents prior to the five-year Statute of
Limitations and which were not specifically mentioned in the pleadings. This testimony
was not beyond the parameters of pleadings and did not prejudice defendant, as these
were further instances of humiliation alleged by plaintiff and established a continuing
course of conduct which extended beyond five year Statute of Limitations. A doctor
who based his testimony upon his treatment of plaintiff over the course of 30
sessions, plaintiff's history of otherwise
being free of psychological problems and treatment before her marriage, and her
improvement after separation from defendant, were properly permitted to testify.
In Cutson v. Cutson (1990, 3d Dept) 161 App Div 2d 996, 557 NYS2d 568,
the Appellate Division modified the judgment of divorce, on the law, by vacating those
provisions relating to resolution of separate and marital property issues and remitted
the matter to Supreme Court for further proceedings not inconsistent with its decision.
The parties were married in 1975, each for the second time, and had two sons. The
Appellate Court held that acts of cruelty constituting grounds for divorce do not
require corroboration. Since much of the alleged cruelty occurred in private, plaintiff's
testimony, by itself, was sufficient to give grounds for the divorce.
In Thom v. Thom (1990, App Div, 3d Dept) 558 NYS2d 219, the Appellate
Division affirmed a judgment of divorce granted to the plaintiff-wife which awarded
the parties joint custody of their one child with physical custody to plaintiff; directed
that the marital home be sold for no less than $145,000 and the proceeds divided
equally and awarded plaintiff $3,000 for legal fees. The parties were married 6 years.
It held that the trial Court did not abuse its discretion in granting the divorce,
considering the length of the marriage, and plaintiff's testimony that defendant struck
her many times, threatened to hit her and hurt her after he moved out of the house,
threatened her life with a rifle in the presence of the parties' child, called her vulgar
names and threatened her with violence.
In Krishnan v. Krishnan (1990, 1st Dept) 166 App Div 2d 357, 561 NYS2d
162, the Appellate Division affirmed a divorce judgment granted to the wife on the
grounds of cruel and inhuman treatment which consisted of physical evidence testified
by the wife. Such physical evidence included slapping, choking and beating her with
a shoe. The Court held that such acts of physical violence were not trivial, but were
sufficient to constitute a pattern of grievous misconduct which presented an actual
threat to the wife's health and safety. The Court held that no negative inference can
arise as a result of the wife's failure to call witnesses because the witnesses to the
beatings in this case were all members of the husband's immediate family, were not
within the wife's control and could be deemed hostile to the wife's cause.
In Reiss v. Reiss (1991, 2d Dept) 170 App Div 2d 589, 566 NYS2d 365, app
dismd without op 78 NY2d 908, 573 NYS2d 469, 577 NE2d 1061, the Appellate
Division granted the husband a divorce on his counterclaim based on cruelty, affirmed
the award of custody to the wife and remitted the case to the Supreme Court for a
new determination with respect to child support, visitation, equitable distribution and
financial issues. The record supported defendant's assertion in this marriage of short
duration that the wife's compulsive gambling and its deleterious impact on the parties'
relationship, together with certain other acts committed by the plaintiff, created an
oppressive and unsafe marital environment, causing the husband to suffer from and
seek professional treatment for stress, depression and certain physical ailments.
In Hird v. Hird (1991, 4th Dept) 170 App Div 2d 1049, 566 NYS2d 117, the
Appellate Division affirmed judgment of divorce granted by the Supreme Court on the
ground of cruel and inhuman treatment. The Court stated that although the Supreme
Court should have stated "the facts it deems essential", a reversal was not required
because the record on appeal was complete and permitted the Court to make the
proper findings. The testimony established that the husband physically and verbally
abused and threatened the wife and that the husband was involved in a extra marital
relationship during the marriage. Corroboration of the wife's testimony was not
required.
In Wilbourne v. Wilbourne (1991, 1st Dept) 173 App Div 2d 289, 569 NYS2d
680, the Appellate Division affirmed a judgment of divorce granted to the husband,
on the grounds of cruel and inhuman treatment. The husband's testimony at trial
revealed a pattern of quarrelling initiated by the wife, which led to physical
altercations, including the throwing of plates, fruits and other objects, scratching and
hair pulling. These disputes escalated to a point where they were occurring on a
nightly basis, causing the husband to become depressed. The wife also repeatedly
accused the husband of infidelity. These accusations were repeated to the parties'
daughter and to a partner in the architectural firm with which the husband was
associated. The Appellate Division agreed with the findings of the trial court that the
wife failed to demonstrate that her suspicions or accusations were justified or had a
reasonable basis, especially with respect to the period in question subsequent to
1980. The Court held that based upon the wife's repeated accusations of infidelity,
which in this case so undermined the marital relationship as to make continued
cohabitation improper, and in light of the constant fighting between the parties which
went well beyond any mere incompatibility or strained relations, the trial Court did not
abuse its broad discretion in granting a divorce to the husband on the grounds of cruel
and inhuman treatment.
It is of moment that in Brady v. Brady, the Court of Appeals had occasion to
review the policy of Hessen v. Hessen in the light of subsequent developments, such
as the Supreme Court's decision in Orr v. Orr (1979) 440 US 268, 59 L Ed 2d 306,
99 S Ct 1102, on remand (Ala App) 374 So 2d 895, cert den (Ala) 374 So 2d 898
and cert den and app dismd 444 US 1060, 62 L Ed 2d 738, 100 S Ct 993 and the
enactment of the 1980 Equitable Distribution Law. [See Laws 1980, Ch 281, eff July
19, 1980. See Dom Rel L 236(B)]. The Court recognized that the de facto double
standard of Hessen posed an equal protection problem, so it reformulated the Hessen
rule in gender neutral terms and granted the dispensation to long as distinguished from
short-term marriages. The major beneficiaries were identical, namely dependent older
women. In order to continue to protect them, however, the court found it was
necessary to impose the same severe burden of proof where wives were plaintiffs, and
it was a long-term marriage.
The greatest significance of the decision in Brady was its perpetuation of the
Hessen policy in a new form after the justification for the Hessen policy had been
removed by the enactment of the Equitable Distribution Law. The automatic bar to
alimony for a wife guilty of misconduct had been eliminated, and since July 19, 1980,
wives were assured of an equitable share of marital property acquired during the
marriage. The statutory guidelines in the Equitable Distribution Law [See Dom Rel L.
236(B) subd 5 and subd 6] specifically made age and duration of the marriage factors
to be considered in distributing marital property and in setting maintenance. Thus,
there was no economic justification for Brady. Knowingly or unknowingly, the
practical consequences of Brady were to reinforce the bargaining leverage of parties
to a long-term marriage where settlement was not reached and the matter became
contested.