C.W. v G.W.

[*1] C.W. v G.W. 2006 NY Slip Op 52708(U) [25 Misc 3d 1241(A)] Decided on May 8, 2006 Supreme Court, Westchester County Giacomo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 8, 2006
Supreme Court, Westchester County

C.W., Plaintiff,

against

G.W., Defendant.



01112/05



Evelyn K. Isaac, Esq.

175 Main Street

Suite 800

White Plains, New York 10601

Kathleen Donelli, Esq.

McCarthy Fingar LLP

11 Martine Avenue

White Plains, New York 10606

William J. Giacomo, J.

Plaintiff and defendant were married on April 17, 1982. They have two children, a 22-year-old daughter and a 19-year-old son. On January 24, 2005 plaintiff commenced this divorce action by filing a Summons with Notice with the Westchester County Clerk. Defendant was served with the Summons with Notice on January 28, 2005. Thereafter, on October 25, 2005, plaintiff filed and served her Verified Complaint (the Complaint).

In the Complaint, plaintiff has asserted three grounds for divorce. The first two are claims of constructive abandonment, [*2]which are set forth in a single cause of action, while the third is a claim of cruel and inhuman treatment. Defendant served an answer to the Complaint dated November 7, 2005, in which he denied plaintiff's allegations concerning the grounds for divorce.

On January 20 and February 1, 2006 a trial on the issue of grounds for divorce was conducted by this Court. Pursuant to a schedule established at the conclusion of the trial, both parties have submitted post-trial memoranda of law setting forth their respective positions. Upon consideration of the evidence presented to the Court and the applicable law, the Court concludes that plaintiff has failed to sustain her burden of proof on the grounds issue. Accordingly, the complaint is dismissed.[FN1]

I. CONSTRUCTIVE ABANDONMENT (SEXUAL RELATIONS)

In the first cause of action set forth in the Complaint plaintiff alleges that defendant constructively abandoned her by virtue of his failure to engage in sexual relations. In relevant part, the Complaint alleges that without justification, defendant "cease[d] to cohabit with Plaintiff as husband and wife" and has "refuse[d] and cease[d] to have sexual relations" with her (Complaint, par.8). The Complaint further asserts that this constructive abandonment has continued "[f]or a period of more than one year, to wit; since May, 2003, to the present time", i.e., the January 24, 2005 commencement of the action (ibid.).

A. RELEVANT EVIDENCEIn May 2002, defendant was diagnosed with prostate cancer. Shortly thereafter, together with plaintiff he met with his urologist, Dr. Charles N. Glassman, to discuss his treatment options. Defendant elected to undergo a surgery known as a "radical prostatectomy", which involves removal of the prostate seminal vesicles and lymph nodes. During those meetings, the parties were informed that erectile dysfunction could result from the removal of defendant's prostate . Indeed, at trial Dr. Glassman confirmed that the vast majority of patients who undergo this operation later suffer from erectile dysfunction. On July 17, 2002, defendant underwent the radical prostatectomy surgery.

The parties did not engage in sexual relations during defendant's recovery from the surgery, which took several months. Then, in early November 2002, they attempted to have sexual [*3]relations, but were unable to do so because defendant could not achieve an erection. Consequently, during a post-surgical visit with Dr. Glassman on November 12, 2002, defendant reported having erectile dysfunction. For that condition, Dr. Glassman prescribed 50 mg. of Viagra. Later in November, although he took a 50 mg. Viagra pill, defendant again was unable to achieve an erection when the parties attempted to have sexual relations. In fact, as agreed by the parties at trial, defendant was unable to maintain an erection on that dosage.

In February 2003, plaintiff arranged a "weekend away" with defendant at an inn in Sturbridge, Massachusetts to celebrate defendant's fiftieth birthday (Tr.21)[FN2]. Defendant brought the Viagra pills with him, but made "no overtures" to have sexual relations with plaintiff during that weekend. Although he took a pill on the Saturday evening, when plaintiff fell asleep before the Viagra took effect, he did not wake her, but merely told her the next morning that he had taken the medication (Tr.21-22). Thus, while plaintiff "thought ... that it would be our chance to reconnect and be intimate", the parties had no sexual relations that weekend (Tr.21). Plaintiff did, however, concede that defendant was under a lot of stress that weekend because his father was dying.

Notwithstanding his continued problem with erectile dysfunction, defendant did not immediately consult with Dr. Glassman. Instead, he waited until his next scheduled appointment, on April 22, 2003, to report that this problem was ongoing. At that time, Dr. Glassman gave defendant a sample consisting of four tablets of Viagra 100 mg. and wrote him a prescription for that dosage. Defendant filled the prescription on July 18, 2003.

In May 2003, after defendant took one of the sample Viagra pills, the parties successfully engaged in sexual intercourse. As described by plaintiff, on that occasion "[defendant] was very affectionate and very loving", and their sexual relations "consisted of foreplay and then the sexual act was performed" (Tr. 14).

The parties went on a seven-day summer vacation in July 2004, to Bethany Beach, Delaware, where they rented a town house (the Bethany Beach vacation). Plaintiff testified that during this vacation she hoped that they would be sexually intimate and claimed she made daily overtures toward the defendant. Moreover, she knew that defendant brought Viagra with him on the vacation "[b]ecause [he] wanted to have sex" (Tr.63). But, according to plaintiff, defendant "seemed really fed up" due to her "nagging" (Tr.18-19). Notably, plaintiff conceded that her verbal [*4]complaints did not encourage defendant to have sex with her (Tr.62).

For his part, defendant admitted that although he brought Viagra with him on the vacation, he did not take it. However, as explained by defendant, notwithstanding that he "was interested in having sex with [plaintiff]", he refused to go into the bedroom with her because "[t]here was no amorousness" and "[i]t was very clinical and a directive" (Tr.174-175). Consequently, as he acknowledged, the parties had no sexual relations that weekend.

Plaintiff maintains that after the Bethany Beach vacation, although defendant took Viagra 100 mg. pills "on occasion" (Tr.70), he only initiated sexual relations with her one time, that being later in July 2003. However, she claimed that because "he was drunk" on that occasion, she "refused to have sex with him" (Tr.69-70).

As is undisputed, the parties' situation with respect to their sexual relationship did not improve in the several months following from the Summer through the Fall of 2003. This is highlighted by two incidents.

First, shortly after the Bethany Beach vacation, plaintiff attempted to discuss with defendant "the failure of [their] sexual relationship during the course of that vacation week" (Tr.176). At that time, plaintiff slammed her hand down on the table and, "being sarcastic", asked defendant: "do I have to get a vibrator?" (Tr.25). Defendant admitted that he offered to buy one for her (Tr.177). Despite his assertion that he was "interested in giving her the real thing" (ibid.), defendant neither attempted to have sexual relations with plaintiff after that, nor even took any Viagra to enable him to do so.

Second, in September or October of 2004, plaintiff tossed a bottle of Viagra at defendant and directed him to "[t]ake this, what is it for, let's get going" (Tr.146). Although it is plaintiff's view that "[m]any men would have seen this as a sexual opportunity with a willing and eager partner" (Pl. Mem, p.7)[FN3], defendant did not engage in sexual relations with her because he felt "embarrassed", "inadequate", and "like a piece of meat" (Tr.146).

Plaintiff characterizes this last episode as her "final attempt to engage him sexually" (Pl. Mem., p.7). Thus, it is her position that after the occasion in May 2003 when they had intercourse, they have not had any further sexual relations because defendant has refused her requests to do so.

At the core of their dispute over this ground for divorce is [*5]defendant's contrary claim. According to defendant, although he has not made any sexual overtures toward plaintiff since June 2004, the the last time the parties engaged in sexual intercourse was not in May 2003, but in June 2004, just prior to his visit with Dr. Glassman on June 21st (the June 21 appointment). In support of this contention, defendant testified that of the four-pill sample of Viagra 100 mg. given to him by Dr. Glassman and the ten-pill Viagra prescription that he filled in July 2003, six pills have been used since April 2003. He also offered the testimony and records of Dr. Glassman concerning, inter alia, the June 21 appointment.

At trial, Dr. Glassman testified that his medical records from the June 21 appointment indicated that defendant "continues to have mild erectile dysfunction for which he is perfectly responsive to [one hundred][FN4] milligrams of Viagra" (Glassman Tr.9 [emphasis added])[FN5]. With respect to the efficacy of Viagra, Dr. Glassman testified as follows:

"Q. Dr. Glassman, even if there had been some impairment [as a result of the surgery], would it be possible to achieve adequate erection by the use of erectile enhancing drug such as Viagra?A. The answer is yes." (Glassman Tr.14).***"Q. Does Viagra work just by itself like instantly or is there some other component.A. Viagra only works if you are stimulated.***Q. ... does Viagra always work even if somebody is stimulated.A. No." (Glassman Tr.7).

The parties slept in the marital bed together until July or August 2005, at which point plaintiff began sleeping elsewhere. It is undisputed that there have been no further attempts by either party to have sexual relations with the other since that time.

B. DISCUSSIONUnder DRL §170(2), a party is entitled to a judgment of divorce

if it is proven that he or she has been abandoned by the other spouse "for a period of one or more years." Because sexual relations are considered basic obligations arising from the marital contract, it is recognized that "a refusal to have [*6]marital sexual relations undermines the essential structure of marriage" (Diemer v. Diemer, 8 NY2d 206,210 [1960]). Consequently, "a total and irrevocable negation of [sexual relations] ... constitutes abandonment in the eyes of the law" (ibid.; see Caprise v. Caprise, 143 AD2d 968,969-970 [2d Dept. 1988]).

In order to be entitled to a divorce on the ground of constructive abandonment, "the spouse who claims to have been constructively abandoned must prove that the abandoning spouse unjustifiably refused to fulfill the basic obligations arising from the marriage contract" (George v. Ann, 171 AD2d 651,651-652 [2d Dept. 1991]). In addition to being unjustified, the refusal or failure to have sexual relations must be " willful, and continued, despite repeated requests from the other spouse for resumption of cohabitation'" (Caprise v. Caprise, supra , 143 AD2d , at 970). And of course, the abandonment must have "continued for at least one year" (George v. Ann, supra , 171 AD2d , at 651-652; Phillips v. Phillips, 70 AD2d 30,36 [2d Dept. 1979] [Under DRL §170[2], "the duration of the year is a jurisdictional prerequisite"]).

In the instant case, the one-year statutory period is measured backwards from the January 24, 2005 filing of the Complaint. Viewed in terms of that period, plaintiff's evidence fails to sustain her burden of proving that the defendant willfully and unjustifiably refused her requests for sexual relations for a period of at least one year.

As noted above, notwithstanding the erectile dysfunction experienced by defendant following his surgery, the parties did successfully engage in sexual intercourse in May 2003. Although plaintiff maintains that that was the last occasion when they had sexual relations, defendant disputes that claim.

While the parties' conflicting testimony creates a credibility issue to be resolved by this Court, there is other evidence to which the Court may turn to determine that credibility issue (see Gunn v.

Gunn, 240 AD2d 704,705 [2d Dept. 1997], lv. dismissed in part, denied in part 91 NY2d 911 [1998] ["The contradictions in each party's testimony [regarding claim of sexual abandonment] raised an issue of credibility, resolution of which is best left to the trier of fact, who had the opportunity to observe the parties"]). In particular, Dr. Glassman's testimony concerning defendant's statement to him at the June 21 appointment that he is "perfectly responsive to" the 100 mg. Viagra dosage, supports defendant's claim that the parties had continued to engage in sexual relations. That statement, made six months prior to this litigation, does not appear to have been motivated by a desire to defeat an abandonment cause of action, and is itself bolstered by defendant's assertion that he had used several of the 100 mg. [*7]Viagra pills since they were obtained by him, when coupled with plaintiff's concession that defendant would have no purpose for taking the pills except to have sexual relations with her.

Viewing the evidence in its entirety, and crediting defendant's testimony that the parties engaged in sexual relations in June 2004, the Court concludes that plaintiff has failed to establish her claim that defendant willfully and unjustifiably refused to engage in marital relations for a period of at least one year (see Quaedvlieg v. Quaedvlieg, 183 Misc 2d 86,92 [Sup. Ct. Queens Co. 1999] [Resolving the credibility issued raised by parties' conflicting testimony, Trial Court "[found] that plaintiff's testimony was legally insufficient to establish either that defendant unjustifiably refused to fulfill the basic obligations arising from the marriage contract or that there was any abandonment that continued for at least one year prior to the commencement of this action"]; see also Gunn v. Gunn, supra , 240 AD2d , at 705 ["[D]efendant's credibility was bolstered by evidence that belied the plaintiff's assertions" [as to constructive abandonment cause of action]). For that reason, plaintiff's first cause of action for constructive abandonment is dismissed (see De Angelis v. De Angelis, 54 AD2d 1088 [4th Dept. 1976] [Where plaintiff's refusal to have sexual relations "existed for much less than one year prior to the institution of this action", it did not support constructive abandonment counterclaim]; see also Quaedvlieg v. Quaedvlieg, supra ).

II. CONSTRUCTIVE ABANDONMENT (Social Relations)

As noted, the first cause of action actually asserts two separate claims of constructive abandonment. Plaintiff's second claim is one of constructive abandonment as a result of defendant's failure to engage in social relations with her. In sum, it is her contention that for a period of more than one year, defendant failed to be supportive of her by being critical of her, embarrassing her, and failing to discuss financial matters with her prior to making decisions.

A. RELEVANT EVIDENCE

Plaintiff's allegations begin with her assertion that in June 2002, while at their daughter's graduation ceremony, defendant embarrassed her in front of approximately 40 people. As explained by her, defendant proposed a toast "[t]o my daughter", but when plaintiff reminded him that "she's our daughter", he stated in front of the guests, "[H]ere she goes again; she's correcting me" (Tr.34). She also testified as to an incident that occurred on her birthday, on November 21, 2004, when, although the parties went out for brunch together, later that afternoon defendant went to a Giants football game without her.

It is also alleged by plaintiff that defendant is "cheap", and does not include her in his decisions as to financial matters [*8]that effect the family. As examples of that conduct, she first claimed that defendant frequently obtained three or four estimates prior to having work done on the marital residence and usually selected the least expensive estimate, which sometimes delayed the work that needed to be done. In addition, she asserted that she bore the costs of non-business vacations taken by defendant and her to Massachusetts in February 2003, Mexico in April 2003, and Bethany Beach in July 2004. Moreover, she alleged that when she was diagnosed with breast cancer, his sole concern was whether her treating physicians were participants in his health plan. She further claimed that defendant reneged on a promise to pay the full cost of lasik eye surgery that she underwent.

In sum, defendant denies plaintiff's social abandonment claims. As explained by him, with one exception in 2003, the parties have spent every Christmas and Christmas Eve together and have taken numerous vacations and business trips together, including trips to Switzerland, Puerto Rico, San Antonio, Boca Raton, the Bahamas, Mexico, London, and Bethany Beach. He also notes that in August 2004, they took a trip together and drove their son to college at Tulane University.

In response to her claims about his "cheapness", defendant testified that the parties have a joint checking account which is solely funded by him, and that in order for plaintiff to establish her own credit, she opened a personal checking account to which he has no access. He further testified that he pays for all household bills, groceries and cleaning services from the joint account, and that for fifteen years he has paid for the plaintiff's psychological and gynecological doctor's visits. Although he admits a dispute with plaintiff concerning the cost of her lasik surgery, he maintains that it arose merely because he asked her to delay this elective surgery until the following year so that the parties could save approximately $1,500 by having certain monies withheld from his salary as pre-tax deductions.

B. DISCUSSION

As made clear by the Court in Deimer v. Deimer, "abandonment is not limited to mere technical physical separation'", but rather "[t]he essence of ... abandonment ... is a refusal on the part of one spouse to fulfill basic obligations springing from the marriage contract'" (supra , 8 NY2d , at 210 [internal citation omitted]). In addition to sexual relations, social intercourse has been recognized as one of the basic marital obligations which, when denied to a spouse, may support a divorce on the ground of constructive abandonment, as espoused in C.P. v. G.P. (6 Misc 3d 1034[a], 6 Misc 3d 1001(A)[Sup. Ct. Nassau Co. 2005]).

In C.P. v. G.P., plaintiff-wife served an amended complaint [*9]asserting causes of action for constructive abandonment and cruelty, with the former ground based upon failure to engage in social relations. Among plaintiff's allegations was that despite her desire for her husband to attend social functions and participate in celebrations with her, for over ten years he refused to speak to her except sporadically and did not eat a meal with her or a meal prepared by her. In addition, she asserted that he refused to sleep in the marital bedroom with her, or celebrate or participate in holidays, birthdays or the children's graduation parties with her. Discussing the application of DRL §170(2) to the denial of social relations, the Trial Court observed:

"The very core of a marriage is the concept of a relationship.' A defendant spouse who has completely refused to engage in any form of social interaction with the plaintiff spouse, for more than one year prior to the commencement of an action for divorce pursuant to DRL 170(2), without cause or condonation, has unquestionably failed to fulfill a basic obligation arising from the marital contract, thereby abandoning the plaintiff, no less than if the defendant had physically abandoned the plaintiff or unjustifiably refused to engage in sexual relations." (Id., 6 Misc 3d 1034[A], at *6).

Based upon that view, on defendant's cross-motion to dismiss the amended complaint, the Trial Court held that plaintiff's allegations of her husband's refusal to engage in social intercourse for a period more than one year would support a cause of action for constructive abandonment.

A similar factual scenario was presented in Michaelessi v. Michaelessi (10 Misc 3d 1067[A], 2005 WL 3607077 [Sup. Ct. Queens Co. 2005]), where the plaintiff-wife asserted a ground of constructive abandonment upon her claim that the defendant refused to engage in social intercourse. Therein, plaintiff alleged that the couple had not slept in the marital bedroom together for approximately nine years; had never celebrated holidays or anniversaries together; and never attended social functions together. Although the defendant-husband offered conflicting testimony, he conceded that "the parties' relationship essentially stopped' sometime after April 2003, that their last social involvement was when they went dancing around that time", that "they did not celebrate their wedding anniversary and that they attend family functions, including Christmas Eve celebrations at their daughter's home, separately" (id., at *3). Upon its assessment of the parties' credibility and application of the "totality of the circumstances" test (ibid.), the Trial Court ruled that plaintiff had been constructively abandoned.

Although this Court finds that the decisions in C.P. v. G.P. [*10]and Michaelessi v. Michaelessi are persuasive authority on the issue of social-relations abandonment, neither is apposite in this case. In both of those cases, there was a near-complete cessation of social relations between the parties. At bar, it is undisputed that notwithstanding the difficulties in their sexual relationship, the parties continued to travel together on vacations and in connection with work obligations, attended family functions together, celebrated birthdays and graduations together, and accompanied each other to medical appointments involving serious health conditions. Moreover, unlike the situation in Michaelessi, there is no claim in this case of a termination of conversation or other daily contact between the parties. Thus, upon application of the totality of the circumstances test, as proposed by the Trial Court in Michaelessi v. Michaelessi (supra ), the instant case is readily distinguishable from both that case and C.P. v. G.P. (supra ).Thus viewed, plaintiff has presented insufficient evidence to prove that defendant refused to have social relations with her for a period of more than one year. Therefore, the Court also dismisses her constructive abandonment cause of action which is based upon a denial of social relations by defendant.

III. CRUEL AND INHUMAN TREATMENT

Plaintiff's second cause of action alleges a single claim of cruel and inhuman treatment. In sum, she contends that defendant is parsimonious and drinks excessively, and that his behavior "has caused her "great pain and suffering in body and mind, thereby endangering ... [her] mental well being ... and rendering it unsafe for [her] to cohabit with the Defendant" (Complaint, par.12).[FN6]

A. RELEVANT EVIDENCE

With respect to her claim that defendant is cheap, as noted above, plaintiff relies, in part, upon his practice of obtaining multiple estimates for repairs to their home. As a further example, she complained that defendant converted the mortgage on the marital residence from thirty years to fifteen years without consulting her, although she acknowledged that this refinancing was to her advantage, because it reduced the overall interest rate from 13% to 9%, thereby increasing the parties' equity in their home. She also relied upon defendant's request to delay her lasik surgery, and her claim that she bore the costs of the party's vacations in February 2003, April 2003, and July 2004.

As to her claim that defendant drinks excessively, plaintiff [*11]testified that he consumes approximately three to four drinks every day during the weekday, and more on the weekends. According to plaintiff, when defendant drinks "he becomes very noncommunicative" and "withdrawn" (Tr.46).

Plaintiff further claimed that as a result of defendant's parsimonious behavior and excessive drinking, she became depressed, suffered from great physical and mental pain, and had to undergo psychological treatment. At trial she testified that she saw a counselor between 1991 and 2004 and that defendant joined her in that therapy from approximately 1993 until 1998. She further testified that she took Prozac between 1993 and 2004, but conceded that she "would be on it for about a year and then be off until the next depression occurred" (Tr.72), and that she stopped taking Prozac in 2004 because she is no longer suffering from the symptoms of depression.

Responding to the claims of parsimony, defendant offered his unchallenged testimony that he paid for all household bills, groceries and cleaning services from a joint account funded solely by him, and that for approximately fifteen years, he paid for plaintiff's doctor's visits, even when they were not covered by his insurance plan. In addition, it was undisputed that during the marriage he bought plaintiff numerous gifts, including Rockwell figurines, clocks, ruby and sapphire rings, a bracelet and diamond earrings. Finally, as to the claim of excessive drinking, defendant testified that he is not an alcoholic, and has never been arrested for any alcohol-related offense or been treated for alcoholism.

B. DISCUSSION

In order to sustain her cause of action for cruel and inhuman treatment, plaintiff must prove that defendant's conduct "so endanger[ed] [her] physical or mental well being ... as renders it unsafe or improper for [her] to cohabit with [him]" (DRL §170 [1]). To satisfy that burden, plaintiff "must show serious misconduct, not mere incompatibility" (Palin v. Palin, 213 AD2d 707,707 (2d Dept. 1995]). For that reason, a showing that the marriage is "dead" will not suffice (Brady v. Brady, 64 NY2d 339,345 [1985]). Moreover, the determination of whether the requisite showing of cruel and inhuman treatment has been made depends upon the length of the parties marriage, "because what might be considered substantial misconduct in the context of a marriage of short duration[] might only be transient discord' in that of a long-term marriage" (id., at 344).

Here, plaintiff asserted in the Complaint that defendant endangered her physical and mental well being, rendering it unsafe for her to cohabit with him. At trial, however, she effectively limited her claim to one of mental endangerment, when she testified that the defendant has never done anything to endanger her physical safety (Tr.77). Nevertheless, even that [*12]limited claim is not sufficiently established in this case, because plaintiff failed to prove that defendant's conduct is "of such a character as to seriously affect the health of the party seeking the decree" (Rios v. Rios, 34 AD2d 325,326 [1st Dept. 1970], affd. 29 NY2d 840 [1971]).

Certainly, long-term abuse of alcohol can warrant a divorce on cruelty grounds, where the result of the offending spouse's excessive drinking is harmful to the spouse seeking the divorce (see Pfeil v. Pfeil, 100 AD2d 725 [4th Dept. 1984] [Divorce complaint sufficiently stated cruelty cause of action where it "allege[d] that defendant constantly initiates violent and vicious arguments and subjects him to ranting, raving, vile language and threats;' that she throws household items about; that she drinks to excess at times and then becomes particularly argumentative; that she has refused to communicate with plaintiff for over five years and has refused to have sexual relations with him for the past five years"]; see also

C.L. v. R.G., 185 Misc 2d 613,615-616 [Sup. Ct. Monroe Co. 2000] ["[I]n the context of defendant's refusal to address his severe alcohol problem for the past 12 years, his admitted family-destroying behavior is neither mere incompatibility nor a vague claim of a course of conduct involving excessive drinking'", but rather "is continuously serious misconduct constituting cruel and inhuman treatment"] [internal citations omitted]). In this case, however, plaintiff's general claims that defendant drinks excessively, causing him to become non-communicative, argumentative, abusive, and withdrawn, are insufficient to entitle her to a divorce on cruelty grounds (see Murphy v. Murphy, 257 AD2d 798,798 [3d Dept. 1999] [Affirming dismissal of complaint alleging cruelty ground where "plaintiff offered evidence of but two altercations between the parties, neither of which resulted in physical injury, arrest, an order of protection or other court action, and a vague claim of a course of conduct involving excessive drinking, name-calling, accusations and recriminations"]; cf. Knox v. Knox, 70 AD2d 652 [2d Dept. 1979], appeal dismissed 48 NY2d 655 [1979] [Cruelty ground was not supported by proof that "plaintiff's recurrent intoxication and abrogation of her household duties" caused defendant "no physical injury to himself other than headaches and, as to these, there was no proof that plaintiff was the cause thereof other than defendant's self-diagnosis"]).[FN7]

Similarly insufficient is plaintiff's claim that defendant [*13]is "cheap". Indeed, most of plaintiff's central examples of defendant's parsimony, including the request to delay elective surgery, the refinancing of the home mortgage, and the obtaining of several estimates for home repairs, appear to be based on legitimate family financial concerns, and not an intent to be cruel to plaintiff.

Taken in its entirety, plaintiff's evidence as to her cruelty cause of action demonstrates, at most, "[o]ccasional strife, lack of domestic harmony, frequent quarrels between [defendant] and [her] and incompatibility" (Rios v. Rios, supra , 34 AD2d , at 327). That showing is insufficient to constitute the "high degree of proof" required to support a claim of cruel and inhuman treatment in a marriage of long duration (see Archibald v. Archibald, 15 AD2d 431,432 [2d Dept. 2005]). Based upon that determination, the second cause of action is dismissed.

IV. CONCLUSION

Having heard the testimony in this case, the Court is sympathetic to plaintiff's plight as a spouse who feels trapped in a marriage that appears to be "dead".[FN8] Unfortunately, unless and until the Legislature acts on this most important issue which appears all too often in this Part, under this State's current divorce law, "[w]hile the trial court does have broad discretion as to whether to grant a cruelty divorce, such a divorce cannot be granted simply because the court concludes that there is a dead marriage'" (Brady v. Brady, supra , 64 NY2d , at 345-346). Accordingly, it is

ORDERED that the complaint is dismissed.

Dated: White Plains, New York

May 8, 2006

HON. WILLIAM J. GIACOMO, J.S.C.

Footnotes

Footnote 1: The relevant facts established by the credible evidence presented during the trial are discussed in connection with the Court's analysis of each ground for divorce asserted in the Complaint.

Footnote 2: Citations to "Tr.___" refer to the trial transcript.

Footnote 3: Citations to "Pl. Mem., p." refer to plaintiff's post-trial submission.

Footnote 4: Dr. Glassman's notes of that appointment actually read "fifty milligrams" (Glassman Tr.9). However, he testified that: "I must either made a correction, he might have called me back, but I made a note on the bottom of my record it was Viagra one hundred" (ibid.).

Footnote 5: Citations to "Glassman Tr.___" refer to the trial transcript of Dr. Glassman's testimony.

Footnote 6: Although her complaint also alleges physical cruelty, as noted below, plaintiff admitted at trial that defendant has done nothing to endanger her physical well-being.

Footnote 7: Plaintiff has also failed to offer any competent proof establishing that defendant's conduct was the cause of her depression or any other mental health injury.

Footnote 8: In order to protect the privacy of plaintiff and defendant, for the purposes of the publication of this decision and order, the Court has used abbreviations in the caption of the action.