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LAW AND THE FAMILY
"Hessen Revisited - The
Cruelty Ground For Divorce"
Joel R. Brandes
New York Law Journal
January 26, 2000
IN Murphy v. Murphy, [FN1] decided earlier this year, the parties were
married
in 1950 and separated in April 1995. In March 1997, plaintiff commenced an
action for a divorce upon the grounds of cruel and inhuman treatment.
Plaintiff
and defendant were the only witnesses who testified at trial. Plaintiff
offered
evidence of two altercations between the parties, neither of which resulted
in
physical injury, arrest, an order of protection or other court action, and
a
claim of a course of conduct involving excessive drinking, name-calling,
accusations and recriminations.
Plaintiff testified that defendant's conduct "made [her] feel
awful" and that
she felt "down all the time" and nervous and that she suffered
from high blood
pressure and arthritis. The trial court dismissed at the close of the
evidence,
and the Appellate Division affirmed. It found that plaintiff presented no
competent evidence to support a finding that defendant's conduct caused her
ailments or created any actual threat to her health or safety. It stated:
Nor was there evidence that plaintiff's nervousness and dismay were so
substantial as to threaten her mental well-being. Particularly in view of
the
length of the parties' marriage, we conclude that the trial evidence fell
far
short of establishing a course of conduct by defendant that was harmful to
plaintiff's physical or mental health, making cohabitation unsafe or
improper.
Domestic Relations Law 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.''
Hardship Factor
The construction of this statute has been the subject of considerable
litigation since its enactment in 1966. In Hessen v. Hessen, [FN2] a 1974
decision, the Court of Appeals rejected a restrictive interpretation of the
cruel and inhuman treatment ground and accepted the policy behind the
"double
standard" to the extent that financial hardship on the wife, as a
consequence
of being barred from an alimony award, and the duration of the marriage,
were
factors to weigh and balance in determining whether or not a divorce
judgment
should be granted against a wife. The Court said that the hardship factor
was
relevant in determining the degree, scope and probable effect of misconduct
between spouses. 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.''
The Court of Appeals made it clear that a strict construction of DRL
170(1), was unwarranted by statutory language and legislative history. It
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, which 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 that the correct approach would be to permit the court
"to
exercise a broad discretion in balancing the several factors in each
case.''
Right to Support
Judge Breitel, emphasized that "special weight" must be given DRL
236,
which barred the wife from alimony, 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 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, [FN3] was decided by the Court of Appeals in 1984. In
Brady,
Supreme Court 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 26-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 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. [FN4] It 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. 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.
The Court rejected the plaintiff's argument that 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.
Since Brady, our courts have denied divorces in long-term marriages when
the
proof did not meet the high standards enunciated by the Court of Appeals.
Thus,
in Miller v. Miller, [FN5] the court reversed a judgment of divorce, based
on
cruelty, in a 26-year marriage, because the allegations of frequent absence
from the marital residence and assault on two occasions did not constitute
evidence of conduct that would so endanger the physical or mental
well-being of
the plaintiff spouse as to render it unsafe or improper to continue to
cohabit
with the defendant.
High Degree of Proof
In a lengthy marriage a party seeking a divorce on the grounds of cruel and
inhuman treatment must show serious misconduct and not mere
incompatibility.
[FN6] A high degree of proof is required. [FN7] There must be a showing of
a
course of conduct by the defendant that is harmful to the physical or
mental
health of the plaintiff and makes cohabitation unsafe or improper. [FN8]
Where the 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 Green v. Green, 9 the Appellate Division held
that
trial court erred in granting the wife a divorce on cruel and inhuman
treatment
in a marriage of long duration, where she offered no medical proof to
establish
that her health was adversely affected by defendant's alleged conduct.
Plaintiff testified that the marriage lacked communication and sexual
intimacy, that defendant pushed her a few times causing minor bruises and
that
as a result of such conduct she gained excessive weight. In Marciano v.
Marciano, [FN10] Plaintiff testified there were six occasions from 1982 to
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.
The Appellate Division reversed the judgment of divorce, as the marriage
was
of long duration and no medical proof was presented.
However, a divorce will be granted where there is substantial evidence of
cruel and inhuman treatment. For example, in McKilligan v. McKilligan
[FN11], a
marriage of more than 25 years, the Appellate Division affirmed the
judgment
that granted the wife a divorce on the ground of cruelty. It found 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.
In Wilbourne v. Wilbourne, [FN12] 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, fruit 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, without justification. These accusations were
repeated
to the parties' daughter and to a partner in the architectural firm with
which
the husband was associated.
The court held that based on 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 discretion.
The significance of the Brady decision was its perpetuation of the Hessen
policy in a new form after the justification for that policy had been
removed
by the enactment of the Equitable Distribution Law. The automatic bar to
alimony for a wife guilty of misconduct has been eliminated, and since July
19,
1980, wives are assured of an equitable share of marital property acquired
during the marriage. As a consequence there is no economic justification
for
Brady.
FN(1) 683 NYS2d 650 (3d Dept.,1999).
FN(2) 33 NY2d 406 (1974).
FN(3) 101 AD2d 797 (2d Dept., 1984), aff'd 64 NY2d 339 (1985).
FN(4) 64 NY2d 339 (1985).
FN(5) 104 AD2d 1032 (2d Dept., 1984).
FN(6) Hessen v. Hessen, 33 NY2d 406; Brady v. Brady, 64 NY2d 339.
FN(7) Green v. Green, 127 AD2d 983 (4th Dept., 1987).
FN(8) Kleindust v. Kleindust, 116 AD2d 988 (4th Dept., 1986).
FN(9) 4th Dept., 1987, 127 AppDiv2d 983.
FN(10) 4th Dept., 1990, 161 AppDiv2d 1163.
FN(11) 3d Dept., 1989, 156 AppDiv2d 904.
FN(12) 1ST DEPT., 1991, 173 APPDIV2D 289.
Joel R. Brandes has law offices in Garden City and New York City. He co-
authored Law and the Family New York and The Family New York Forms (both,
Westgroup). Bari B. Brandes is a member of the firm and co-author of the
Annual
Supplements to Law and the Family New York 2d. She assisted in the
preparation
of this article.
