O'Connell v. O'Connell

Appellate Division of the Supreme Court of New York

O'Connell v. O'Connell

116 A.D.2d 823, 497 N.Y.S.2d 211, 1986 N.Y. App. Div. LEXIS 51651

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

DecidedJanuary 2, 1986

StatusPublished

Cited by11 cases

This text of 116 A.D.2d 823 (O'Connell v. O'Connell) 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.

Bluebook

O'Connell v. O'Connell, 116 A.D.2d 823, 497 N.Y.S.2d 211, 1986 N.Y. App. Div. LEXIS 51651 (N.Y. Ct. App. 1986).

Pincite

Opinion

— Casey, J.

Appeal from a judgment of the Supreme Court denying plaintiff a divorce, entered November 7, 1984 in Albany County, upon a decision of the court at Trial Term (Williams, J.), without a jury.

Plaintiff contends that Trial Term erred in finding the proof adduced at trial insufficient to establish that defendant’s [824]*824conduct constituted cruel and inhuman treatment within the meaning of Domestic Relations Law § 170 (1). We disagree and affirm.

The trial court has broad discretion as to whether to grant a cruelty divorce, but "such a divorce cannot be granted simply because the court concludes that there is a 'dead marriage’ ” (Brady v Brady, 64 NY2d 339, 345-346). In the Brady case, the court reaffirmed its holding in Hessen v Hessen (33 NY2d 406), explaining: "In Hessen v Hessen * * * we held that a plaintiff seeking a divorce under the cruel and inhuman treatment subdivision must show serious misconduct, and not mere incompatibility. Subsequent cases have established that a plaintiff, relying on this subdivision, must generally show a course of conduct by the defendant spouse which is harmful to the physical or mental health of the plaintiff and makes cohabitation unsafe or improper * * * The subdivision requires a finding of fault and thus a showing of irreconcilable or irremediable differences is insufficient by itself’ (Brady v Brady, supra, p 343 [citations omitted]).

An additional principle, relevant to this case, is the requirement of "a high degree of proof of cruel and inhuman treatment where there is a marriage of long duration” (id., p 344). A review of the record in light of these principles convinces us that Trial Term properly found plaintiff’s proof insufficient to meet her heavy burden, despite evidence of lack of communication, unpleasantness, strain and irreconcilable differences between the parties, which prompted Trial Term to state that the parties’ marriage, having lasted 22 years and produced eight children, "will not be saved”.

Judgment affirmed, with costs. Kane, J. P., Casey, Weiss, Yesawich, Jr., and Harvey, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

— Casey, J.

Appeal from a judgment of the Supreme Court denying plaintiff a divorce, entered November 7, 1984 in Albany County, upon a decision of the court at Trial Term (Williams, J.), without a jury.

Plaintiff contends that Trial Term erred in finding the proof adduced at trial insufficient to establish that defendant’s [824]*824conduct constituted cruel and inhuman treatment within the meaning of Domestic Relations Law § 170 (1). We disagree and affirm.

The trial court has broad discretion as to whether to grant a cruelty divorce, but "such a divorce cannot be granted simply because the court concludes that there is a 'dead marriage’ ” (Brady v Brady, 64 NY2d 339, 345-346). In the Brady case, the court reaffirmed its holding in Hessen v Hessen (33 NY2d 406), explaining: "In Hessen v Hessen * * * we held that a plaintiff seeking a divorce under the cruel and inhuman treatment subdivision must show serious misconduct, and not mere incompatibility. Subsequent cases have established that a plaintiff, relying on this subdivision, must generally show a course of conduct by the defendant spouse which is harmful to the physical or mental health of the plaintiff and makes cohabitation unsafe or improper * * * The subdivision requires a finding of fault and thus a showing of irreconcilable or irremediable differences is insufficient by itself’ (Brady v Brady, supra, p 343 [citations omitted]).

An additional principle, relevant to this case, is the requirement of "a high degree of proof of cruel and inhuman treatment where there is a marriage of long duration” (id., p 344). A review of the record in light of these principles convinces us that Trial Term properly found plaintiff’s proof insufficient to meet her heavy burden, despite evidence of lack of communication, unpleasantness, strain and irreconcilable differences between the parties, which prompted Trial Term to state that the parties’ marriage, having lasted 22 years and produced eight children, "will not be saved”.

Judgment affirmed, with costs. Kane, J. P., Casey, Weiss, Yesawich, Jr., and Harvey, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

116 A.D.2d 823, 497 N.Y.S.2d 211, 1986 N.Y. App. Div. LEXIS 51651, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oconnell-v-oconnell-nyappdiv-1986.

Opinion

Related

Cite This Page — Counsel Stack