Allen v Allen

[*1] Allen v Allen 2005 NY Slip Op 50349(U) Decided on March 21, 2005 Supreme Court, Bronx County Kiesel, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 21, 2005
Supreme Court, Bronx County

Maria Axiomakaros Allen, Plaintiff,

against

Christopher Allen, Defendant.



3002/03



Deana Balahtsis, Esq,

Attorney for Plaintiff

111 John Street Suite 1509

New York, NY 10038

Christopher Allen, pro se

Diane Kiesel, J.

This is an action for absolute divorce commenced by plaintiff, Maria Axiomakaros Allen, against defendant, Christopher Allen. The trial was held before this Court on October 5, 2004 and November 29, 2004. The plaintiff was represented by Deana Balahtsis, Esq., and the defendant appeared pro se. The Court has had a full opportunity to consider the evidence presented, including the testimony offered and the exhibits received. The Court also has had an opportunity to observe the demeanor of the witnesses called to testify and has made determinations on issues of credibility with respect to these witnesses. The Court now makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

At the time of the commencement of this action, both plaintiff and defendant were at least 18 years of age and were residents of the State of New York, having continuously resided here for a period in excess of one year. Neither party is in the military service of the United States and there is no judgment of divorce, separation or annulment granted by this or any other Court of competent jurisdiction with respect to their marriage in Bronx County on November 12, 1997.

As set out in the Summons with Notice filed on January 2, 2003 and served on the defendant on March 30, 2003, the plaintiff seeks a divorce on the grounds of cruel and inhuman treatment pursuant to DRL §170(1). The defendant contested those grounds but never served a demand for a complaint nor served any counterclaims. The parties have no marital assets or property and there exists no barrier, religious or otherwise, affecting the ability of either party to remarry subsequent to a divorce. There is one child of the marriage, Christopher Anthony Allen, born May 30, 1998. The plaintiff was awarded sole legal custody of him by the Bronx County [*2]family court on October 26, 1999. Accordingly, the only issue for this Court is whether the plaintiff proved her allegations of cruel and inhuman treatment. For the reasons set forth, the Court finds she did.

The plaintiff testified the defendant was abusive to her as early as one month after their marriage. In December 1997 the defendant assaulted the plaintiff while she was pregnant with their child. She said, "I was pregnant, and I was in the restroom. I was throwing up because I had morning sickness, and he grabbed me by the hair and he dragged me across the apartment and then proceeded to throw me down the stairs from the second floor to the first floor of the hallway." According to the plaintiff, this assault occurred after the defendant learned her parents were not following through on a promise to purchase a house for the couple. The plaintiff did not seek medical attention after the incident, nor did she confide in anyone about it. She said she remained silent because she was afraid of the defendant. The defendant denied he attacked his wife and insisted she was vomiting because she had been drinking alcohol heavily.

The next incident of cruel and inhuman treatment occurred one year later. According to the plaintiff, the defendant punched her in the face and broke her nose when he became angry over the fact her parents would not give them money to start a business. When the plaintiff tried to call the police, the defendant took the phone from her and broke it. The plaintiff waited approximately three weeks to seek medical treatment. Certified medical records were introduced into evidence and they confirmed the plaintiff suffered a deviated septum. The defendant denied breaking the plaintiff's nose and testified that her nasal injuries were the result of years of drug abuse.

In March 2001 the parties became embroiled in a fight over the plaintiff's pay check. The defendant went to the plaintiff's place of employment to meet her after work. They began drinking alcohol while on their way to the two-family home they shared with the plaintiff's parents. They argued and the plaintiff said the defendant assaulted her in the street and pulled her by the hair. Once they reached home, she said he punched holes in the walls of their apartment. The defendant testified he was the one assaulted during this incident. He said his father-in-law attacked him with a hammer and threw shoes at him while the defendant was holding his son. He offered no plausible explanation for this alleged altercation with his father-in-law. Moreover, it was the plaintiff who suffered physical injury, and the defendant who was arrested after the plaintiff's parents called the police.

As a result of this incident, the plaintiff sustained a hairline fracture of the face. The defendant was prosecuted by the Bronx County District Attorney and on April 18, 2001 pled guilty to assault in the third The plaintiff received a three-year order of protection from the Bronx County criminal court. That order directed the defendant to stay away from her and the parties' child, who was present during the attack. It also prohibited him from making phone calls to them. Nevertheless, the plaintiff reconciled with the defendant after this incident and in July 2001 resumed living with him. She said she returned because she was afraid the defendant would kill her as well as her parents if she did not. The plaintiff further testified she did not want her son to grow up without a father.

In September of 2002, while the parties were living together, albeit in contravention of the criminal court order of protection, the Administration for Children's Services (ACS) began an investigation into allegations of abuse and neglect of the couple's child. A staff member of [*3]the Greek American Institute, where the child was attending classes, reported the defendant slashed the boy's thigh with the blade of a pair of scissors. The plaintiff testified this incident was the one which ultimately compelled her to leave the defendant, although there were other, prior instances of abuse by the defendant against the child. For example, the defendant would use his hand to cover the boy's mouth for protracted periods of time when the child would not go to sleep.

On November 6, 2002 ACS filed a neglect petition against both parties in Bronx county family court. An order of protection was issued against them on behalf of the child. The family court subsequently modified its order of protection to allow the plaintiff visitation with the child. Meanwhile, the three-year criminal court order of protection issued in favor of the plaintiff and child was still in effect. On February 7, 2003 the family court again modified its order to protect the child and the plaintiff, who finally succeeded in leaving the defendant. Eventually, the family court disposed of the neglect allegations against the plaintiff by granting her an adjournment in contemplation of dismissal. The dismissal was conditioned upon her compliance with court-ordered services for her and the child who was released to her custody.

On October 11, 2003 while the neglect proceeding was still pending against the defendant and the criminal court and family court orders of protection were still in effect, the defendant called the plaintiff at home, threatened to burn down the house, kill her and take the child. The defendant was arrested for violating the criminal court order of protection, and charged with two counts of aggravated harassment in the second degree for making the calls. The contempt charge was subsequently dismissed but the criminal charge of aggravated harassment remains pending before this integrated domestic violence court, which is empowered to hear criminal, family and matrimonial matters.

In addition to provoking the criminal action, the October 11, 2003 incident led ACS to file another petition against the defendant in the family court neglect case that was still pending. That filing resulted in an inquest on February 2, 2004, after which the defendant was found to have willfully violated the family court order of protection by telephoning and threatening the plaintiff. The defendant was incarcerated for two consecutive three-month periods for contempt of the family court orders. A finding of neglect was also rendered against him, based on proven allegations of a long history of domestic violence. A final, three-year order of protection was also issued for the protection of the plaintiff and child. That order expires on February 1, 2007 and specifically precludes the defendant from any contact with the plaintiff and the child.

In addition to the above-described incidents of physical abuse, the plaintiff also testified to a pattern of verbal abuse perpetrated by the defendant. During the course of their six-year marriage, the defendant referred to the plaintiff as "stupid," and accused her of being a bad mother. The defendant admitted he called the plaintiff "stupid," but said it was in response to discovering she was using cocaine during her pregnancy.

The plaintiff also testified to the defendant's abusive pattern of exerting dominance and control over her. The defendant refused to allow her to have contact with her friends or to permit her to maintain a good relationship with her parents. He would escort her to work and wait for her outside her job at the end of the workday. He squandered the money she earned on drugs and alcohol. She claimed to have lost a job at a travel agency because of the defendant's obsessive behavior. Specifically, she claimed she called in sick frequently at the defendant's [*4]insistence and that her productivity was often poor because of injuries suffered from beatings by the defendant. The defendant denied he coerced her into calling in sick. He claimed the plaintiff's absences from work were related to hangovers.

In addition to denying all the allegations of cruel and inhuman treatment, the defendant painted a picture of the plaintiff as a heavy cocaine abuser. He alleged that when she gave birth, their son had "drugs in his system." The defendant insisted the plaintiff's friends were drug dealers and users. With respect to the assertions of domestic violence, the defendant presented himself as the victim, claiming the plaintiff burned him with irons, scratched him and beat him in December of 1998. He testified that during this attack, the plaintiff "knocked" their child into a bus. No corroborating evidence was introduced to support these claims. The plaintiff admitted she became violent at times but said it was "to defend myself . . . maybe once or twice [I] went to attack with my hands because I was so overwhelmed and distraught about the situation I was in."

The defendant was not a credible witness. Even taking into account the fact he was pro se and unfamiliar with trial procedure and the rules of evidence, much of his testimony was rambling and bizarre. He claimed he was victimized by a conspiracy of his in-laws, the police, the federal government and this Court. He claimed he went to federal authorities to request a polygraph test to prove he was telling the truth about the plaintiff's abusive behavior towards him. Obsessed with the need to take a lie detector test, he also asked this Court to administer one. He called his mother as a witness on his behalf, and even she corroborated the plaintiff's testimony about the defendant's controlling personality.

The plaintiff, unlike the defendant, accepted responsibility for her past. She did not deny having been a drug abuser. She admitted her child was born with a positive toxicology for drugs. The plaintiff acknowledged returning to live with the defendant despite a criminal court order of protection issued on her behalf. She was credible in her presentation of a marriage plagued by physical, verbal and emotional abuse, and of her own difficulty in extricating herself from the defendant.

CONCLUSIONS OF LAWThe plaintiff, seeking a divorce under the cruel and inhuman treatment subdivision of DRL §170, has the burden of proving the conduct of the defendant so endangers her physical or mental well being as to render it "unsafe or improper" for her to cohabit with him. See DRL§170(1). While proof of physical violence is not necessary to meet this burden (see Vaiana v. Vaiana, 272 AD2d 916 (4thDept. 2000), the plaintiff testified about four specific incidents of physical abuse as fully outlined above. Three of them resulted in injury to her. The first incident occurred in December 1997 when the defendant threw her down a staircase while she was pregnant. The second was in December of 1998 when the plaintiff suffered a broken nose. The third incident was in March of 2001 when the plaintiff sustained a hairline fracture of the face. The last was in October 2003, when the defendant threatened to burn down her house and kill her. The March 2001 and October 2003 incidents resulted in the criminal conviction of the defendant, a family court sentence of incarceration, and the pending criminal prosecution against him for aggravated harassment in the second degree. In fact, the Bronx County criminal and family courts have already found the defendant responsible for acts which constitute domestic violence. [*5]

The legislature of the State of New York does not yet require proven acts of domestic violence to be considered in matrimonial actions like this one, where custody and visitation are not at issue.[FN1] Here, however, domestic violence has been proven and two courts have found it would be unsafe for the parties to cohabit. As a result, judges of those courts issued orders of protection to prevent it. It is this Court's opinion that in situations such as these, domestic violence constitutes cruel and inhuman treatment per se. To not recognize such proven domestic violence in divorce actions as prima facie proof of cruel and inhuman treatment is to minimize the dangers of domestic violence. Moreover, by issuing orders of protection to the plaintiff and her child, the criminal and family courts have each independently concluded the defendant's conduct endangered their well being. Thus, it is academic that in addition to being a violation of those orders, it would be improper and unsafe for the parties to cohabit.

Besides recounting four incidents of physical abuse, which would have been sufficient to meet her burden of proof under DRL§240(1) the plaintiff testified to a pattern of verbal abuse that allowed the defendant to exercise power and control over her. She testified he repeatedly demeaned her by referring to her as "stupid" and that he isolated her from friends and family. She said he coerced her into calling in sick to work and, she feared he would kill her if she did not return to him after she received an order of protection against him. Cumulatively this is sufficient evidence that the defendant's actions had an effect on her mental condition. The plaintiff did not need an expert to prove such conduct was harmful to her mental health so as to render it unsafe or improper for the parties to cohabit. Levine v. Levine, 2 AD3d 498 (2nd Dept. 2003). This evidence of harm to her mental health, as well as physical well being, provide a decisive basis for granting the divorce. See Bulger v. Bulger, 88 AD2d 895 (2nd Dept. 1982); Echevarria v. Echevarria, 40 NY2d 262 (1976); Hessen v. Hessen, 33 NY2d 406 (1974). Accordingly, the Court finds the plaintiff is entitled to a judgment of absolute divorce against the defendant herein upon the grounds of cruel and inhuman treatment.

This constitutes the decision and order of the Court.

Dated: March 21, 2005

Bronx, New York

Diane Kiesel, JSC Footnotes

Footnote 1:DRL §240 (1)(a) in relevant part requires that ". . . Where either party to an action concerning custody of or a right to visitation with a child alleges in a sworn petition or complaint or sworn answer, cross-petition, counterclaim or other sworn responsive pleading that the other party has committed an act of domestic violence against the party making the allegation or a family or household member of either party, as such family or household member as defined in article eight of the family court act, and such allegations are proven by a preponderance of the evidence, the court must consider the effect of such domestic violence upon the best interests of the child. . . ."