Shou-Tsung Lin v. Straub

Appellate Division of the Supreme Court of New York

Shou-Tsung Lin v. Straub

282 A.D.2d 234, 722 N.Y.S.2d 546, 2001 N.Y. App. Div. LEXIS 3380

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

DecidedApril 5, 2001

StatusPublished

Cited by2 cases

This text of 282 A.D.2d 234 (Shou-Tsung Lin v. Straub) 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

Shou-Tsung Lin v. Straub, 282 A.D.2d 234, 722 N.Y.S.2d 546, 2001 N.Y. App. Div. LEXIS 3380 (N.Y. Ct. App. 2001).

Pincite

Opinion

—Judgment, Supreme Court, New York County (Joan Lobis, J.), entered March 30, 2000, insofar as appealed from, granting plaintiff a divorce on the ground of cruel and inhuman treatment, unanimously affirmed, without costs.

To obtain a divorce on the ground of cruel and inhuman treatment (Domestic Relations Law § 170 [1]), the plaintiff must show serious misconduct, not mere incompatibility, i.e., a course of conduct by the defendant that is harmful to the plaintiffs physical or mental health and makes cohabitation unsafe or improper (Brady v Brady, 64 NY2d 339, 343). The proof required to make such a showing in part depends on the length of the marriage, because what might be considered substantial misconduct within the context of a short-term marriage might only be “transient discord” in a long-term marriage (id., at 344). The instant divorce action was commenced in 1999, approximately 11 years after the parties were married [235]*235in 1988, but, as the trial court emphasized, the period of cohabitation was much shorter, the parties having lived apart continuously for five years prior to 1998, the last three of which coincided with a prior action for divorce that plaintiff instituted and discontinued, and there being evidence of other “hiatuses” even before that. Thus, the trial court properly lightened the burden of proof required of plaintiff to demonstrate cruel and inhuman treatment. Under this standard, a pattern of serious misconduct that plaintiff testified caused her to be fearful for her safety and affected her physical health was established by multiple episodes of bizarre behavior and screaming, which were admitted by defendant, and all of which took place within the one-year period that the parties attempted to reconcile and cohabit (see, Ridley v Ridley, 275 AD2d 941). Concur — Nardelli, J. P., Tom, Ellerin, Lerner and Rubin, JJ.

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—Judgment, Supreme Court, New York County (Joan Lobis, J.), entered March 30, 2000, insofar as appealed from, granting plaintiff a divorce on the ground of cruel and inhuman treatment, unanimously affirmed, without costs.

To obtain a divorce on the ground of cruel and inhuman treatment (Domestic Relations Law § 170 [1]), the plaintiff must show serious misconduct, not mere incompatibility, i.e., a course of conduct by the defendant that is harmful to the plaintiffs physical or mental health and makes cohabitation unsafe or improper (Brady v Brady, 64 NY2d 339, 343). The proof required to make such a showing in part depends on the length of the marriage, because what might be considered substantial misconduct within the context of a short-term marriage might only be “transient discord” in a long-term marriage (id., at 344). The instant divorce action was commenced in 1999, approximately 11 years after the parties were married [235]*235in 1988, but, as the trial court emphasized, the period of cohabitation was much shorter, the parties having lived apart continuously for five years prior to 1998, the last three of which coincided with a prior action for divorce that plaintiff instituted and discontinued, and there being evidence of other “hiatuses” even before that. Thus, the trial court properly lightened the burden of proof required of plaintiff to demonstrate cruel and inhuman treatment. Under this standard, a pattern of serious misconduct that plaintiff testified caused her to be fearful for her safety and affected her physical health was established by multiple episodes of bizarre behavior and screaming, which were admitted by defendant, and all of which took place within the one-year period that the parties attempted to reconcile and cohabit (see, Ridley v Ridley, 275 AD2d 941). Concur — Nardelli, J. P., Tom, Ellerin, Lerner and Rubin, JJ.

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Bluebook (online)

282 A.D.2d 234, 722 N.Y.S.2d 546, 2001 N.Y. App. Div. LEXIS 3380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shou-tsung-lin-v-straub-nyappdiv-2001.

Opinion

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