Green v. Green

127 A.D.2d 983, 513 N.Y.S.2d 49, 1987 N.Y. App. Div. LEXIS 43478

Opinion

Judgment reversed on the law without costs, and complaint dismissed. All concur, Davis, J., not participating. Memorandum: The trial court erred in granting plaintiff a divorce on the ground of cruel and inhuman treatment. In a marriage of long duration such as this one, a high degree of proof is required to establish cruel and inhuman treatment (see, Brady v Brady, 64 NY2d 339, 345; Hessen v Hessen, 33 NY2d 406, 411-412; Kleindinst v Kleindinst, 116 AD2d 988, 989; Passantino v Passantino, 87 AD2d 973, 974). At trial plaintiff testified that the marriage lacked communication and sexual intimacy, that defendant pushed her a few times causing minor bruises, and, as a result of such conduct, she gained excessive weight. Defendant denied the allegations of fault.

The record establishes, at best, only strained relations and incompatibility which are insufficient to sustain a divorce based on cruel and inhuman treatment (see, Kleindinst v Kleindinst, supra; Buckley v Buckley, 93 AD2d 973, 974; cf., Falcone v Falcone, 112 AD2d 796, 797). Plaintiff presented no medical proof to establish that her health was adversely affected by defendant’s alleged conduct (see, Warguleski v Warguleski, 79 AD2d 1107; Gemayel v Gemayel, 63 AD2d 831, 832). Since the divorce should not have been granted, we need not reach the other claims raised which relate to the trial court’s distribution of the marital property. (Appeals from judgment of Supreme Court, Ontario County, Cicoria, J.— divorce.) Present — Dillon, P. J., Callahan, Green, Balio and Davis, JJ.