Klein v Klein

[*1] Klein v Klein 2004 NY Slip Op 51062(U) Decided on September 22, 2004 Supreme Court, Nassau County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 22, 2004
Supreme Court, Nassau County

LAWRENCE KLEIN, Plaintiff,

against

STEPHANIE KLEIN, Defendant,



03-200558

Anthony J. Falanga, J.

This is a motion by the wife for an order pursuant to CPLR 3211(a)(7) dismissing the verified amended complaint.

The parties were married on October 28, 1984. The wife is 52 and the husband is 51 years old. There are two children of the marriage, Elizabeth born March 9, 1988 and Brittany born July 11, 1990. The husband commenced the above captioned action for divorce on the ground of constructive abandonment on or about February 26, 2003. A summons and complaint were served on or about March 26, 2003. On or about May 4, 2004, the husband served a verified amended complaint seeking a divorce on the sole ground of cruel and inhuman treatment. The complaint sets forth three allegations of conduct that are claimed to so endanger the physical or mental well-being of the husband as to render it unsafe or improper for him to cohabit with the wife, to wit: 1) in August 2001 the wife became verbally abusive, jabbed her finger at the husband, blocked the door and prevented him from leaving the bedroom and called the police alleging he had assaulted her; 2) commencing in 2000, the wife refused to turn off the bedroom television interfering with his ability to sleep; in June 2002 when he attempted to remove the television from the master bedroom, she physically attacked him and called to the children to call the police; and 3) in August 2002 during an argument, the wife threatened to throw his clothes out the window, causing him to leave the marital residence in fear that she would call the police and he would be arrested.

The wife contends that even if the Court were to find all of the above allegations to be true, the alleged conduct does not, as a matter of law, rise to the level of cruel and inhuman treatment in view of the fact that the parties were married almost 19 years prior to the commencement of the within action. The husband contends that the allegations are sufficient. He advises the Court that subsequent to the commencement of the action, the wife did have him arrested and he spent a night in jail. The charges against him were dismissed after a trial. He contends that he was incarcerated without cause and was required to retain counsel to defend him [*2]against "baseless allegations." In the event the court dismisses his pleading, he seeks leave to serve a second verified amended complaint.

The law is well settled that on a motion to dismiss for failure to state a viable claim, the complaint is to be liberally construed; the facts alleged are accepted as true; and the plaintiff is to be accorded every possible favorable inference (see, Habib v Habib, 278 AD2d 277; Bartkowski v Bartkowski, 273 AD2d 942; Vestal v Vestal, 273 AD2d 461; Steinberger v Steinberger, 248 AD2d 706; M.M. v E.M., 248 AD2d 109). Accordingly, the court must determine whether the allegations in the verified amended complaint, if true, would constitute a course of cruel and inhuman conduct.

DRL 170(1) requires that a plaintiff "generally show a course of conduct by the defendant which is harmful to the physical or mental health of the plaintiff and makes cohabitation unsafe or improper." A plaintiff seeking a divorce on the ground of cruel and inhuman treatment must demonstrate serious misconduct and not mere incompatibility or irreconcilable differences (see, Brady v Brady, 64 NY2d 339; Jacob v Jacob, __AD2d __, 2004 WL 1207908; Bigeleisen v Bigeleisen, 253 AD2d 474; Feeny v Feeny, 241 AD2d 510; Palin v Palin, 213 AD2d 707).

The determination as to whether the conduct complained of constitutes cruel and inhuman treatment is a question of fact which will depend upon the circumstances of each case (Soto v Soto, 216 AD2d 455). Allegations of physical violence are not necessary and misconduct of verbal and mental abuse may suffice (Vaiana v Vaiana, 272 AD2d 916). Further, the law is clear that there is no requirement that a plaintiff obtain medical treatment or psychological counseling to establish grounds for divorce based upon cruel and inhuman treatment (see, Habib v Habib, supra; Bailey v Bailey, 256 AD2d 1030; Mikhail v Mikhail, 252 AD2d 772). "A divorce may be granted based upon a showing that the mental well-being of the complaining spouse is endangered by conduct which renders cohabitation improper, though not necessarily unsafe" (Habib v Habib, supra). While individual acts in and of themselves may not rise to the level of the requisite proof, the cumulative affect of such incidents may constitute the basis for finding a course of conduct that can be viewed as harmful to plaintiff's physical or mental well being (see, Brady v Brady, supra; S.C. v A.C., __Misc2d __, 2004 WL 1852894). In determining whether the defendant's conduct justifies the granting of a divorce on the ground of cruel and inhuman treatment, the conduct complained of must be viewed in the context of the entire marriage including its duration (see, Bradley v Bradley, 298 AD2d 485).

The duration of the marriage is a significant factor in deciding whether the offending behavior constitutes "serious misconduct" (see, Hessen v Hessen, 33 NY2d 406; M.M. v E.M., supra; Rieger v Rieger, 161 AD2d 227, 228). "An appearance of misconduct, which in a matured marriage might fail to justify a finding of substantial misconduct, but only transient discord, may in a newer marriage justify or even compel an inference of substantial misconduct" (Hessen v Hessen, supra at 411; see, Brady v Brady, supra; Whaley v Whaley, 277 AD2d 1025; Soto v Soto, supra).

It is axiomatic that where the marriage is of long duration, as in the instant case where the parties were married for almost 19 years before the commencement of the action, the courts have consistently demanded a high degree of proof of cruel and inhuman treatment (see, Brady v Brady, supra; Bradley v Bradley, supra; Davey v Davey, 293 AD2d 444). The complaint must allege misconduct which constitutes "calculated cruelty" rather than "mere incompatibility" or "transient discord" (Hessen v Hessen, supra at 410-411; see, Brady v Brady, supra; Stroke v Stroke, 283 AD2d 992; Bartkowski v Bartkowski, supra).

Applying the aforesaid principals of law, the Court finds that even if true, the allegations set forth in the verified amended complaint do not constitute substantial misconduct sufficient to support the granting of a judgment of divorce to the husband on the ground of cruel and inhuman treatment. Accordingly, the verified amended complaint must be dismissed.

Leave to replead is denied. The husband has been aware that grounds would be contested in this action since on or before November 3, 2003 and he has previously amended his complaint to assert instances of misconduct that occurred during the marriage. He has not demonstrated that if he were granted leave to serve a second verified amended complaint, he would be able to set forth additional acts of cruelty that occurred prior to the commencement of the action.

With regard to the events of alleged misconduct that occurred subsequent to the commencement of the action, resulting in his arrest, incarceration, a trial and the dismissal of criminal charges after trial, the husband is relegated to commencing a new action for divorce on the ground of cruel and inhuman treatment. Such post commencement conduct, when viewed together with previous incidents during which the wife called the police or threatened to call the police, would state a viable cause of action for divorce, since on a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a viable claim, the Court is required to deem as true, the allegations that the wife's accusations to the police, resulting in the husband's arrest and incarceration, were baseless. Clearly, a pattern of conduct by a spouse of calling the police and making baseless allegations resulting in the arrest of the other spouse, if proven at trial, would make out a prima facie case that it would be improper for the parties to continue to cohabit (see, Raynore v Raynore, 186 AD2d 1082). However, as explained by Justice Silbermann in Hallingby v Hallingby, 159 Misc2d 988, as the date of the commencement of an action for divorce "cuts off" a defendant's rights with regard to certain assets comprising the marital estate, it would be improper in this case, where the husband did not have grounds for divorce on the commencement date of February 26, 2003, to permit him to replead misconduct by the wife that occurred after that date.

The husband's remedy is to commence a new action and move to consolidate same with the wife's counterclaim for necessaries and for ancillary relief in the above captioned action. In the interest of financial and judicial economy, counsel should consider encouraging the parties to enter into a stipulation 1) permitting the husband to serve a second verified amended [*3]complaint, and 2) fixing the valuation date for appropriate assets, such as the husband's pension, as of the date of service of the second amended complaint (see, Scheinkman, Alan D., 11 NY Practice. New York Laws of Domestic Relations 10:72 [database update 2004]).

This constitutes the decision and order of the Court. Any relief not specifically addressed is denied. The trial on grounds heretofore calendared for October 20, 2004 will not proceed as the complaint had been dismissed. The parties and counsel shall appear for a conference on that date at 9:30a.m.

E N T E R:

_________________________

Dated: September 22, 2004 KAnthony J. Falanga, Justice

Mineola, NY Supreme Court, Nassau County