Decisions of Interest

The appellate court disagreed with plaintiff's contention that the proof was sufficient to grant a judgment of divorce based on adultery because subsequent to finding out about his infidelity, plaintiff voluntarily cohabited with defendant, establishing the affirmative defense of forgiveness (Domestic Relations Law ' 171 (2)).

The appellate court found, however, that plaintiff had proven cruel and inhuman treatment, despite the parties' lengthy marriage. Her evidence included testimony concerning incidents in which defendant hit plaintiff, threw a pitcher of water at her, swore at her, forced her to stay away from certain areas of the marital home, followed her around the house arguing with her, yelled at her to prevent her from sleeping and stopped her from calling 911 by pulling the telephone cord out of the wall. Defendant told plaintiff that it would do her no good to call the police because he was a retired police officer. Defendant's behavior was influenced by what plaintiff described as excessive drinking. In June 2001, after defendant refused to leave, plaintiff left the marital home.

Apart from his insistence that he never intended to hit plaintiff, defendant's testimony was equivocal and punctuated by memory lapses. Nevertheless, it generally confirmed plaintiff's allegations.

The court here, although cognizant of the long duration of this marriage and of the deference generally accorded to Supreme Court's factual determinations and credibility assessments as trier of the facts, nevertheless found that under the circumstances here, plaintiff established by a preponderance of the credible evidence that defendant's recurring episodes of anger and volatile conduct presented a clear threat to plaintiff's physical and emotional well-being, rendering it unsafe for her to continue to cohabit with him (see Domestic Relations Law ' 170 (2)). Accordingly, it reversed Supreme Court's order dismissing the complaint and directed that plaintiff be granted a judgment of divorce against defendant on the ground of cruel and inhuman treatment.

Dismissal Reversed: Divorce Based on Cruel and Inhuman Treatment

The Supreme Court, Saratoga County, erred in granting defendant husband's motion to dismiss plaintiff's complaint for divorce on grounds of cruel and inhuman treatment, as she had adequately pled and proven grounds for grant of divorce on such basis. Redgrave v. Redgrave, N.Y.L.J., Vol. 229, Pg. P. 18, col. 1, 4/24/03 (Cardona, P.J.; Peters, Spain, Carpinello and Lahtinen, J.J.).

The parties were married in May 1972 and have three children. In May 2001, plaintiff commenced this action for divorce alleging cruel and inhuman treatment and adultery (see Domestic Relations Law ' 170 (1), (4)). At the conclusion of the nonjury trial, the Supreme Court granted defendant's motion to dismiss the complaint. Plaintiff appealed, claiming she had offered sufficient evidence to survive a summary judgment motion as to both the adultery and cruel and inhuman treatment bases for divorce.

The appellate court disagreed with plaintiff's contention that the proof was sufficient to grant a judgment of divorce based on adultery because subsequent to finding out about his infidelity, plaintiff voluntarily cohabited with defendant, establishing the affirmative defense of forgiveness (Domestic Relations Law ' 171 (2)).

The appellate court found, however, that plaintiff had proven cruel and inhuman treatment, despite the parties' lengthy marriage. Her evidence included testimony concerning incidents in which defendant hit plaintiff, threw a pitcher of water at her, swore at her, forced her to stay away from certain areas of the marital home, followed her around the house arguing with her, yelled at her to prevent her from sleeping and stopped her from calling 911 by pulling the telephone cord out of the wall. Defendant told plaintiff that it would do her no good to call the police because he was a retired police officer. Defendant's behavior was influenced by what plaintiff described as excessive drinking. In June 2001, after defendant refused to leave, plaintiff left the marital home.

Apart from his insistence that he never intended to hit plaintiff, defendant's testimony was equivocal and punctuated by memory lapses. Nevertheless, it generally confirmed plaintiff's allegations.

The court here, although cognizant of the long duration of this marriage and of the deference generally accorded to Supreme Court's factual determinations and credibility assessments as trier of the facts, nevertheless found that under the circumstances here, plaintiff established by a preponderance of the credible evidence that defendant's recurring episodes of anger and volatile conduct presented a clear threat to plaintiff's physical and emotional well-being, rendering it unsafe for her to continue to cohabit with him (see Domestic Relations Law ' 170 (2)). Accordingly, it reversed Supreme Court's order dismissing the complaint and directed that plaintiff be granted a judgment of divorce against defendant on the ground of cruel and inhuman treatment.