Donley v. Donley

Appellate Division of the Supreme Court of New York

Donley v. Donley

233 A.D.2d 930, 649 N.Y.S.2d 750, 1996 N.Y. App. Div. LEXIS 13453

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 8, 1996

StatusPublished

Cited by3 cases

This text of 233 A.D.2d 930 (Donley v. Donley) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Donley v. Donley, 233 A.D.2d 930, 649 N.Y.S.2d 750, 1996 N.Y. App. Div. LEXIS 13453 (N.Y. Ct. App. 1996).

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Opinion

Order unanimously affirmed without costs. Memorandum: We reject the contention of plaintiff that Supreme Court erred in granting defendant’s motion, made at the close of plaintiffs proof, to dismiss the complaint in this action seeking a divorce on the ground of cruel and inhuman treatment. To be entitled to a judgment of divorce on that ground, "plaintiff [is] required to establish serious misconduct on the part of defendant such that [her] physical or mental well being was endangered and continued cohabitation with defendant was unsafe or improper” (Urtis v Urtis, 181 AD2d 1001, 1002; see, Domestic Relations Law § 170 [1]; Brady v Brady, 64 NY2d 339, 343). Moreover, because of the long duration of the parties’ marriage, 18 years, a "high degree of proof’ is required to establish cruel and inhuman treatment (Walczak v Walczak, 206 AD2d 900, 901; see, Brady v Brady, supra, at 344; Wikiera v Wikiera, 233 AD2d 896 [decided herewith]).

Here, plaintiffs proof established, at best, an acrimonious, unhappy and strained marital relationship, which is insufficient to meet the high degree of proof required in a long-term marriage to establish cruel and inhuman treatment (see, Brady v Brady, supra, at 344-346; Wikiera v Wikiera, supra; Gulisano v Gulisano, 214 AD2d 999; Walczak v Walczak, supra, at 901; Marciano v Marciano, 161 AD2d 1163, 1164, lv denied 76 NY2d 707). No evidence was introduced of any physical violence between the parties or any vulgar or obscene language by defen[931]*931dant (see, Gulisano v Gulisano, supra; Walczak v Walczak, supra). Additionally, plaintiff presented no medical proof to establish that defendant’s conduct adversely affected her physical or mental health (see, Doyle v Doyle, 214 AD2d 918, 919, lv denied 87 NY2d 803; Walczak v Walczak, supra). Although the absence of expert medical testimony is not necessarily fatal to an action for divorce based upon cruel and inhuman treatment (see, Brooks v Brooks, 191 AD2d 1042, 1043), the failure of plaintiff to submit any medical proof may be considered in determining the sufficiency of her proof (see, Doyle v Doyle, supra, at 919; Walczak v Walczak, supra). (Appeal from Order of Supreme Court, Livingston County, Cicoria, J.—Divorce.) Present—Green, J. P., Pine, Callahan, Doerr and Davis, JJ.

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Order unanimously affirmed without costs. Memorandum: We reject the contention of plaintiff that Supreme Court erred in granting defendant’s motion, made at the close of plaintiffs proof, to dismiss the complaint in this action seeking a divorce on the ground of cruel and inhuman treatment. To be entitled to a judgment of divorce on that ground, "plaintiff [is] required to establish serious misconduct on the part of defendant such that [her] physical or mental well being was endangered and continued cohabitation with defendant was unsafe or improper” (Urtis v Urtis, 181 AD2d 1001, 1002; see, Domestic Relations Law § 170 [1]; Brady v Brady, 64 NY2d 339, 343). Moreover, because of the long duration of the parties’ marriage, 18 years, a "high degree of proof’ is required to establish cruel and inhuman treatment (Walczak v Walczak, 206 AD2d 900, 901; see, Brady v Brady, supra, at 344; Wikiera v Wikiera, 233 AD2d 896 [decided herewith]).

Here, plaintiffs proof established, at best, an acrimonious, unhappy and strained marital relationship, which is insufficient to meet the high degree of proof required in a long-term marriage to establish cruel and inhuman treatment (see, Brady v Brady, supra, at 344-346; Wikiera v Wikiera, supra; Gulisano v Gulisano, 214 AD2d 999; Walczak v Walczak, supra, at 901; Marciano v Marciano, 161 AD2d 1163, 1164, lv denied 76 NY2d 707). No evidence was introduced of any physical violence between the parties or any vulgar or obscene language by defen[931]*931dant (see, Gulisano v Gulisano, supra; Walczak v Walczak, supra). Additionally, plaintiff presented no medical proof to establish that defendant’s conduct adversely affected her physical or mental health (see, Doyle v Doyle, 214 AD2d 918, 919, lv denied 87 NY2d 803; Walczak v Walczak, supra). Although the absence of expert medical testimony is not necessarily fatal to an action for divorce based upon cruel and inhuman treatment (see, Brooks v Brooks, 191 AD2d 1042, 1043), the failure of plaintiff to submit any medical proof may be considered in determining the sufficiency of her proof (see, Doyle v Doyle, supra, at 919; Walczak v Walczak, supra). (Appeal from Order of Supreme Court, Livingston County, Cicoria, J.—Divorce.) Present—Green, J. P., Pine, Callahan, Doerr and Davis, JJ.

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233 A.D.2d 930, 649 N.Y.S.2d 750, 1996 N.Y. App. Div. LEXIS 13453, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donley-v-donley-nyappdiv-1996.

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