Warguleski v. Warguleski

79 A.D.2d 1107, 435 N.Y.S.2d 857, 1981 N.Y. App. Div. LEXIS 10055

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 23, 1981
• Status: Published

Opinions

Judgment reversed, without costs, and complaint dismissed. Memorandum: Plaintiff commenced this action for divorce in 1977, alleging that for several months prior to March, 1977 defendant’s treatment of her had been cruel and inhuman, and his conduct such as to render it unsafe for her to cohabit with him (see Domestic Relations Law, § 170, subd [1]). The trial court, in a memorandum decision, pursuant to CPLR 4213 (subd [b]), found that the evidence submitted by plaintiff fell far short of evidencing such proof necessary to sustain a divorce on the ground of cruel and inhuman treatment, but since the marriage was obviously “dead”, plaintiff was granted a divorce pursuant to subdivision (1) of section 170 of the Domestic Relations Law. Subsequently the court signed findings of fact and judgment granting the divorce on the ground of cruel and inhuman treatment. To obtain a divorce on the ground of cruel and inhuman treatment, the evidence must establish a course of conduct which so endangers the physical or mental well-being as renders it unsafe or improper for plaintiff to cohabit with defendant. This ground does not authorize the granting of a divorce for irreconcilable differences, incompatability, irremedial differences or, as was done here, where it was found “no useful purpose will be served by perpetuating this marriage” (Jorgensen v Jorgensen, 67 AD2d 958; Filippi v Filippi, 53 AD2d 658). The evidence adduced at trial established that the parties were married in 1965 and have three children; that in 1973 defendant struck plaintiff and bloodied her nose; that on another occasion defendant came home intoxicated and tore plaintiff’s clothes off; that he has pushed her and thrown things at her; and that these incidents only occurred in the years 1972 to 1975. Plaintiff presented no corroboration of her claim that medical attention was required for her alleged nervous and distraught condition caused by the marriage. This evidence is insufficient to establish the necessary course of conduct, and an application of the ground of cruel and inhuman treatment to a “dead” marriage is not authorized by the statute (see Hessen v Hessen, 33 NY2d 406). Furthermore, the incidents complained of occurred in the years 1972 to 1975; from 1975 to 1977, in which year plaintiff

left defendant to move in with her paramour, she and her husband experienced normal marital relations. Plaintiff lost any viable cause of action for cruel and inhuman treatment she may have had at one time by her admitted conduct in sharing a common household with her husband. Absent the proof by plaintiff of extraordinary circumstances for her remaining, it is contrary to the policy of the law and incongruous to sanction a divorce under the circumstances shown (Berman v Berman, 277 App Div 560; Takagi v Takagi, 38 Misc 2d 476). All concur, except Hancock, Jr., J. P., and Doerr, J., who dissent and vote to affirm the judgment, in the following memorandum.