Miller v. Miller

104 A.D.2d 1032, 480 N.Y.S.2d 947, 1984 N.Y. App. Div. LEXIS 20466

Opinion

— In a matrimonial action, plaintiff husband appeals, as limited by his brief, from stated portions of a judgment of divorce of the Supreme Court, Nassau County (Pantano, J.), entered January 5, 1984, which, inter alia, dismissed his complaint for divorce, granted custody of the parties’ child to defendant wife, awarded defendant maintenance in the sum of $235 per week for a period of 12 months and thereafter $75 per week for a period of five years, and awarded defendant counsel fees in the sum of $5,000.

Judgment affirmed, insofar as appealed from, with costs.

To obtain a divorce on the ground of cruel and inhuman treatment, the plaintiff has the burden of establishing a pattern of actual physical violence, or, if actual violence is not involved, conduct which seriously affects the health of the spouse and threatens to impair it, rendering it unsafe to cohabit. (Johnson v Johnson, 103 AD2d 820; Rios v Rios, 34 AD2d 325, affd 29 NY2d 840.) Plaintiff husband failed to meet the burden of proving a pattern of actual physical violence or conduct such as to seriously affect his health. Therefore, the trial court properly dismissed plaintiff’s complaint for divorce. We further find Special Term’s awards of maintenance, custody and counsel fees constituted a proper exercise of its discretion (see Matter of Richards v Richards, 78 AD2d 943; Smith v Smith, 61 AD2d 1133). Titone, J. P., Bracken, Boyers and Lawrence, JJ., concur.