E.D. v M.D.

[*1] E.D. v M.D. 2005 NY Slip Op 50578(U) Decided on April 11, 2005 Supreme Court, Suffolk County Pastoressa, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 11, 2005
Supreme Court, Suffolk County

E.D., Plaintiff,

against

M.D., Defendant



02-26662



Attorney for Plaintiff

Dorothy A. Courten, Esq.

33 Kings Highway, Hauppauge, New York 11788

Attorney for Defendant

Sari M. Friedman, P.C.

666 Old Country Road, Ste.704, Garden City, New York 11530

Joseph C. Pastoressa, J.

In this divorce action, the defendant moves for an order pursuant to CPLR 4404(a) setting aside the jury's verdict and directing entry of judgment in her favor as a matter of law.

The plaintiff and defendant were married on September 7, 1991. The defendant wife has two children by a prior marriage, but there are no issue of this marriage. The plaintiff commenced this action in October 2002, and the matter was subsequently referred to this court for a jury trial on grounds. At the conclusion of the week long trial, the jury found for the plaintiff husband awarding him a divorce on the grounds of cruel and inhuman treatment. The defendant now brings the instant application to set aside the verdict as against the weight of the evidence. [*2]

It is well established that for a court to conclude that a jury verdict is unsupported "by sufficient evidence as a matter of law, there must be no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial"( Nicastro v. Park, 113 AD2d 129,132 , quoting Cohen v. Hallmark Cards, 45 NY2d 493, 499). Moreover, a jury verdict will not be set aside as against the weight of the evidence unless it could not have been reached on any fair interpretation of the evidence (see, Nicastro v. Park, supra at 134; Kiley v. Almar, Inc, 1 AD3d 570).

It is, however, equally well established that "a plaintiff seeking a divorce on the ground of cruel and inhuman treatment must show serious misconduct, not mere incompatability" (Domestic Relations Law § 170[1]; Brady v. Brady, 64 NY2d 339). It has been said that even "riotous quarrels" do not constitute cruel and inhuman treatment (see, Filippi v. Filippi, 53 AD2d 658, 659). A plaintiff relying on this ground must 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" (Brady v. Brady, supra at 343). Moreover, as the Court of Appeals has stated, when the marriage is one of long duration, such as the case at bar, a high degree of proof of cruel and inhuman treatment is required (see, Brady v. Brady, supra ; Hessen v. Hessen, 33 NY2d 406). A finding that the marriage is "dead" or that there are "irreconciliable differences" or that "no useful purpose would be served by perpetuating the marriage", will not satisfy the statutory requisite (see, Brady v. Brady, supra at 345-346; Hessen v. Hessen, supra; Silvera v. Silvera, 147AD2d 473; Warguleski v. Warguleski, 79AD2d 1107).

At the trial in this case, the conduct complained of consisted primarily of a failure to speak or communicate for periods of time, a strained relationship with the defendant's mother-in-law, a refusal to join [*3]in certain planned activities, and an accusation of marital infidelity. [FN1] Specifically, viewing the evidence in a light most favorable to the nonmovant and affording him, as the party opposing the motion, every inference which may properly be drawn from facts presented (see, Szczerbiak v. Pilat, 90 NY2d 553, 556; Xenakis v. Vorilas,166 AD2d 586, 586-587), evidence was adduced at trial that (1) in September 1999 defendant accompanied plaintiff on a vacation to Mystic CT., but then precipitously refused to go on a sailing trip because the couple had argued earlier; (2) In the summer of 1999 the defendant turned around and struck plaintiff in anger when plaintiff accidentally nicked defendant's neck while cutting defendant's hair for her; (3) In December 2001 defendant refused to accompany plaintiff to the wedding of a co-worker and shortly thereafter ignored plaintiff while seated together at a Christmas Eve Dinner at defendant's sister's home; (4) In March 2002 defendant refused to open birthday presents plaintiff had given her because, according to defendant, they were given in a perfunctory manner; (5) On May 5th and May 6th 2000, shortly after plaintiff told defendant that he wanted a divorce, the defendant stood in a doorway blocking plaintiff's exit and accused him of having an affair with a co-worker, with the second incident resulting in physical contact when plaintiff grabbed defendant by her arm and swung her out of his way in order to leave the room; (6) In October 1997 the defendant became angry with plaintiff's mother when plaintiff's mother made a gift check out to the couple in the plaintiff's name only and that thereafter the relationship between defendant and plaintiff's mother was strained with plaintiff's mother no longer visiting the marital residence because she felt uncomfortable; (7) In December 1997 defendant refused Christmas presents given by plaintiff's mother to defendant's family; (8) In July of [*4]2000 defendant left a marriage counseling session in a rage and accused the counselor of bias when the counselor inquired about her problems with plaintiff's mother; and finally (9) defendant complained to plaintiff about his absences from the marital home while he was working a second job on a ferry boat.

In addition to these incidents, the court permitted testimony about a incident occurring outside the applicable five year statute of limitations (see, Domestic Relations law § 210), namely, a confrontation between the parties at their work cafeteria where defendant flipped a plate of food onto plaintiff during a work related argument. While this evidence was properly admissible as relevant contextual evidence of an alleged course of conduct, it may not be employed to satisfy the plaintiff's burden of proving cruel and inhuman treatment (see, Habib v. Habib, 278 AD2d 277; Vestal v. Vestal, 273 AD2d 461; Miglio v. Miglio, 147 AD2d 460).

In her own defense at trial, the defendant testified that she objected to plaintiff's volunteering to work on the ferry only because she wanted to spend more time with him; and defendant explained that she did not want to go on the sailing trip because she had injured herself on the same trip a year earlier, but was afraid to tell plaintiff since the trip had already been booked; and defendant explained that she was deeply hurt and offended by her mother-in-law's decision to give gifts only in her son's name; and that her refusal to accompany plaintiff to the wedding or accept his birthday gifts was due to her perceived indifference on the part of plaintiff.

Regardless whether one credits her testimony or not, and the jury was free to reject it in its entirety, the defendant's conduct, satisfactorily explained or otherwise, clearly did not rise to the level of cruel and inhuman treatment in this long term marriage.

Evidence of a "stressful relationship", verbal abuse, and of a failure to speak or communicate for periods of time simply does not, under the applicable statute and controlling case law, constitute cruel and inhuman treatment (see, Domestic Relations Law § 170(1); Brady v. Brady, supra; Hessen v. Hessen, supra; Davey v. Davey, 293 AD2d 444; [*5]Stroke v. Stroke, 283 AD2d 992; Fairweather v. Fairweather, 256 AD3d 537; Garver v. Garver, 253 AD2d 512; Biegeleisen v. Biegeleisen, 253 AD2d 474; Arunas v. Arunas, 227 AD2d 424; Palin v. Palin, 213 AD2d 707; William MM v. Kathleen MM, 203 AD2d 883; Silvera v. Silvera,147 AD2d 473; Delgatto v. Delgatto, 142 AD2d 545; Stagliano v. Stagliano, 132 AD2d 975, 976; Andritz v. Andritz, 131 AD2d 529, 530; Meyn v. Meyn, 119 AD2d 644; O'Connell v. O'Connell, 116 AD2d 823; Tsakis v. Tsakis, 110 AD2d 763, appeal dismissed 5 NY2d 1053).

The evidence of physical contact between the parties was isolated and minimal, and, significantly, it was not the plaintiff husband who is seeking a divorce on cruelty grounds, who presented any evidence of injury to himself, but rather the defendant wife, opposing the divorce, who injured her own hand (see, Defelice v. Defelice, 92 AD2d 1044; Sirote v. Sirote, 54 AD2d 694; Concetto v. Concetto, 50 AD2d 883; cf. Echevarria v. Echevarria, 40 NY2d 262). Similarly, while the plaintiff testified to feeling "unhappy", "abandoned", and as if he "were walking on eggshells", there was not a scintilla of proof that the defendant's actions had affected or impaired the plaintiff's physical or mental health in any tangibly deleterious way (see, Bradley v. Bradley, 298 AD2d 485; Wilson v. Wilson, 244 AD2d 646; Johnson v. Johnson, 103 AD2d 820).

While there is no requirement that a plaintiff obtain medical treatment or psychological counseling to establish grounds for a divorce based on cruel and inhuman treatment (see, Habib v. Habib, 278 AD2d 277; Bailey v. Bailey, 256 AD2d 1030), and, although the absence of expert testimony is not necessarily fatal to an action based upon cruel and inhuman treatment (see, Doyle v. Doyle, 214 AD2d 918, mot. for lv. to app. den. 87 NY2d 803), plaintiff's failure to provide any medical proof of physical or mental impairment is a relevant factor which can be considered in determining the sufficiency of the trial evidence in a cruel and inhuman treatment divorce involving a long term marriage (see, Walczak v. Walczak, 206 AD2d 900, 901). In the same vein, the court notes that the record is also devoid of any evidence of the type of physical or verbal abuse which could give rise to an inference that [*6]defendant's misconduct created an actual threat to the plaintiff's safety (see, Doyle v. Doyle, supra; Krishnan v, Krishnan, 166 AD2d 357).

In sum, while the incidents of cruel and inhuman treatment to which plaintiff testified undoubtedly served to make cohabitation unpleasant and stressful at times, the proof failed to establish, as a matter of law, the requisite "serious or substantial misconduct" by defendant which so endangered plaintiff's physical or mental well being as to render it unsafe or improper for him to cohabit with the defendant (see, Palin v. Palin, supra; Wikiera v. Wikiera, 233 AD2d 896; Ostriker v. Ostriker, 203 AD2d 343, 344).

Accordingly, notwithstanding the appropriate deference accorded the trier of fact, the motion is granted, the jury's verdict vacated, and the defendant is awarded judgment as a matter of law and the complaint dismissed.

This shall constitute the decision and order of the court.

Dated: April 11, 2005

HON. JOSEPH C. PASTORESSA J.S.C. Footnotes

Footnote 1: While false accusations of infidelity , made in bad faith, can rise to cruelty, the court notes that the record contains no evidence that the accusations were unfounded or made maliciously and without reasonable basis (cf. Mante v. Mante, 34 AD2d 134; Jorgensen v. Jorgensen, 67 AD2d 902).