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Supreme Court, Appellate Division, First Department, New York.

Carol GROSS, Plaintiff-Respondent, v. Jerome GROSS, Defendant-Appellant.

Decided: May 22, 2007

NARDELLI, J.P., WILLIAMS, BUCKLEY, CATTERSON, McGUIRE, JJ. Laurence P. Greenberg, Brooklyn, for appellant. Howard Benjamin, New York, for respondent.

Order, Supreme Court, New York County (Joan B. Lobis, J.), entered February 21, 2006, which granted plaintiff a judgment of divorce on the ground of cruel and inhuman treatment, unanimously reversed, on the law, without costs, and the complaint dismissed.   The Clerk is directed to enter judgment accordingly.

 “To obtain a divorce on the ground of cruel and inhuman treatment (Domestic Relations Law § 170[1] ), the plaintiff must show serious misconduct, not mere incompatibility, i.e., a course of conduct by the defendant that is harmful to the plaintiff's physical or mental health and makes cohabitation unsafe or improper (Brady v. Brady, 64 N.Y.2d 339, 343 [486 N.Y.S.2d 891, 476 N.E.2d 290] [1985] )” (Shou-Tsung Lin v. Straub, 282 A.D.2d 234, 722 N.Y.S.2d 546 [2001] ).   Moreover, in a marriage of long duration a “high degree” of proof of cruel and inhuman treatment is required (Palin v. Palin, 213 A.D.2d 707, 624 N.Y.S.2d 630 [1995], citing Brady, supra;  Hessen v. Hessen, 33 N.Y.2d 406, 353 N.Y.S.2d 421, 308 N.E.2d 891 [1974] ).

 Plaintiff was asked at trial whether defendant had ever “physically force [d] himself on [her] sexually.”   In response, plaintiff testified that “I would have to say yes.   It's only one time that, really where he hurt me.”   Apparently by way of explanation, plaintiff went on to state that defendant “[r]ammed [her] up against the wall” in the bathroom of their residence.   Plaintiff did not elaborate in any other way about what she meant in stating that defendant had “force[d] himself on [her] sexually.”   In its vagueness and generality, this testimony could include conduct ranging from the criminal (e.g., forcible rape) to the merely obnoxious.   Moreover, plaintiff offered no evidence that she had sustained any injuries as a result of this incident (see generally Palin, supra [plaintiff in marriage of long duration required to satisfy a high degree of proof of cruel and inhuman treatment] ).   To the contrary, she testified on cross-examination that she did not suffer any physical injuries as a result of the incident.

Plaintiff also testified that defendant, on many occasions, “physically grabbed [her].”   When asked to describe how defendant “grabbed” her, plaintiff stated:  “[h]e'll grab me, he'll pull me down the hall, he'll block me so I can't leave the room, throw me on the bed, push me against the wall.”   Again, no testimony was elicited from plaintiff that she sustained any injuries as a result of defendant's conduct.

 Reprehensible and highly offensive behavior, however, is not necessarily sufficient to establish the cruel-and-inhuman-treatment ground for divorce.   Plaintiff's uncorroborated testimony regarding unwanted physical contact was vague and general, and no evidence was adduced from plaintiff regarding the effects, if any, of defendant's conduct on her physical or mental well-being (see Jacob v. Jacob, 8 A.D.3d 725, 778 N.Y.S.2d 191 [2004];  Murphy v. Murphy, 257 A.D.2d 798, 683 N.Y.S.2d 650 [1999];  see also Green v. Green, 127 A.D.2d 983, 513 N.Y.S.2d 49 [1987];  Hage v. Hage, 112 A.D.2d 659, 492 N.Y.S.2d 172 [1985] ).   In fact, plaintiff denied suffering any injuries as a result of the incident which occurred in the bathroom.   Similarly, plaintiff presented no evidence regarding the effects, if any, on her mental well-being of defendant's conduct in entering the bathroom of their residence while plaintiff was showering.   While a party seeking a divorce on the ground of cruel and inhuman treatment is not required to produce medical evidence demonstrating the adverse effects of the defendant's behavior (see Ridley v. Ridley, 275 A.D.2d 941, 714 N.Y.S.2d 396 [2000] ), the absence of such evidence may be relevant (see Omahen v. Omahen, 289 A.D.2d 890, 735 N.Y.S.2d 236 [2001], lv. denied 97 N.Y.2d 613, 742 N.Y.S.2d 606, 769 N.E.2d 353 [2002] ).   The absence of medical evidence here is particularly telling in light of plaintiff's failure to offer any other evidence tending to demonstrate that defendant's conduct was “harmful to the plaintiff's physical or mental health and makes cohabitation unsafe or improper” (Shou-Tsung Lin, 282 A.D.2d at 234, 722 N.Y.S.2d 546 [citation omitted] ).   At bottom, we are left to speculate as to the effects, if any, of defendant's conduct on plaintiff's physical and mental well-being.1

Other evidence militates against the conclusion that plaintiff satisfied the substantial burden the law imposes upon her.   The parties were married for 37 years, eight months at the time of trial, a marriage of long duration requiring a high degree of proof of cruel and inhuman treatment (Palin, supra ).   Plaintiff and defendant continued to reside together in the marital residence through the trial (see Garver v. Garver, 253 A.D.2d 512, 677 N.Y.S.2d 155 [1998];  see also Palin, supra ).   Moreover, the parties were able to talk to each other in a civilized manner, have dinner together every night, go out for meals and to the movies and attend social functions (see Walczak v. Walczak, 206 A.D.2d 900, 614 N.Y.S.2d 835 [1994] ).

In sum, given the long duration of the marriage, the absence of any evidence regarding the effects, if any, of defendant's conduct on plaintiff's physical or mental well-being and the parties' continued residence in the marital home through the trial, the evidence failed to demonstrate, with a high degree of proof, “that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as [to] render[ ] it unsafe or improper for the plaintiff to cohabit with the defendant” (Domestic Relations Law § 170 [1] ).2


1.   Compare (Echevarria v. Echevarria, 40 N.Y.2d 262, 386 N.Y.S.2d 653, 353 N.E.2d 565 [1976] [defendant severely beat plaintiff on two occasions causing bruises and black and blue marks on her face, head and body, and made her “too nervous to work”;  plaintiff also obtained an order of protection against defendant] );  (Zhao v. Li, 300 A.D.2d 169, 750 N.Y.S.2d 856 [2002] [defendant's serious misconduct, including spreading false rumors of extramarital affairs, affected plaintiff's physical and mental health, including loss of sleep and nervousness that caused him to lose his job], lv. dismissed 100 N.Y.2d 615, 767 N.Y.S.2d 396, 799 N.E.2d 619 [2003] );  (Van Dyke v. Van Dyke, 273 A.D.2d 589, 709 N.Y.S.2d 672 [2000] [counterclaiming defendant granted divorce on grounds of cruel and inhuman treatment where plaintiff hit defendant with frying pan causing injury, threw household items at him and, on one occasion, wrestled him to the ground] );  (Pompa v. Pompa, 259 A.D.2d 338, 687 N.Y.S.2d 25 [1999] [defendant mistreated plaintiff over several years by making false, denigrating accusations, threatening violence and participating in one incident of actual violence, causing plaintiff to suffer from anxiety, palpitations and chest pain] );  (Bailey v. Bailey, 256 A.D.2d 1030, 683 N.Y.S.2d 321 [1998] [defendant physically assaulted plaintiff causing facial and other injuries] );  (Meltzer v. Meltzer, 255 A.D.2d 497, 680 N.Y.S.2d 618 [1998] [defendant violently pushed plaintiff to the floor, an act that caused bruising and resulted in police intervention and in the issuance of numerous orders of protection excluding defendant from the marital residence] );  (Feeney v. Feeney, 241 A.D.2d 510, 661 N.Y.S.2d 26 [1997] [defendant's abusive conduct forced plaintiff to flee the marital residence on several occasions, causing her to suffer anxiety and depression] );  (Stoothoff v. Stoothoff, 226 A.D.2d 209, 640 N.Y.S.2d 553 [1996] [defendant denigrated plaintiff, threatened her and committed an act of physical abuse and intimidation, causing her decreased appetite, lost sleep, nausea, stress, and anxiety] ).

2.   Plaintiff's testimony regarding defendant's attitude about plaintiff's family and defendant's control of the family finances demonstrates, at most, “strained, unpleasant relations and incompatibility” (Wikiera v. Wikiera, 233 A.D.2d 896, 649 N.Y.S.2d 749 [1996] ).

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