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In what may be a growing trend, some recent decisions at trial out of state Supreme Court in Nassau ( M.G. v. L.G. 1), Suffolk ( Ozkan v. Ozkan 2), Richmond ( Gerard v. Gerard 3), and Queens ( S.C. v. A.C. 4) counties have seen the refusal to grant judgments of divorce in contested matrimonial cases. 5 The Appellate Division, Third Department, also has recently affirmed the denial of a divorce out of Schoharie County in its June 30 decision in Jacob v. Jacob. 6 These cases illustrate that the law, as presently constituted, requires grounds to be proven or the parties will remain in a perpetual “non-marriage.” New York was one of the last states to expand the grounds for divorce when the Divorce Reform Act was passed in 1966. Before, the only ground for divorce was adultery. Since then, New York has recognized the following additional grounds for divorce: 7 cruel and inhuman treatment, abandonment, confinement to prison for three or more consecutive years, conversion of a legal separation, and absence for five successive years. In the 38 years since the Divorce Reform Act, New York remains one of a minority of states not to permit pure “no-fault” grounds for divorce. The New York State Bar Association Family Law Section has submitted a proposal seeking to amend the act to provide such a ground. Failure to meet the statutory requirements for relief mandates the denial of a judgment of divorce and precludes equitable distribution. 8 This latter result is often the intent of the more formidably titled spouse. It has also been used to extract a higher price for the “consent” to the divorce when grounds are tenuous. The most commonly rejected ground, cruel and inhuman treatment, requires the alleged conduct to so endanger the physical or mental well being of the other spouse that it is rendered “unsafe or improper” for the accusing spouse to cohabit with the accused spouse. The longer the marriage, the heavier the burden to be demonstrated in the conduct alleged. 9 Mere incompatibility is insufficient to meet the requirements of the statute as the proponent must show “serious misconduct.” 10 This is also true of “irreconcilable differences.” 11 The Court of Appeals in its seminal decision in Hessen v. Hessen, 12 analyzed the changes brought about by the Divorce Reform Act as to cruel and inhuman treatment and its relationship to then existing pre-equitable distribution law. The Hessen Court made it clear that the Legislature, in enacting the act, specifically intended to maintain “fault” as a requirement for granting a divorce, except upon the conversion of a legal separation. The Court held that “it was intended that marital misconduct to constitute cruel and inhuman treatment be distinguished from mere incompatibility, and that serious misconduct be distinguished from trivial.” The Court continued, “An appearance of misconduct, which in a matured marriage might fail to justify a finding of substantial misconduct, but only of transient discord, may in a newer marriage justify or even compel an inference of substantial misconduct.” Objective proof of physical or mental injury to the complaining spouse would certainly be a decisive basis for granting the divorce, but is not a prerequisite. Among the factors that the courts may properly consider are the respective ages of the husband and wife and the duration of the marriage. Unfortunately, in many instances, the deleterious effects of the aging process on the physical and mental disposition of spouses will inevitably create problems in an otherwise long and happy marriage. Similar problems may occur because of changes in a family’s situation, as with the departure of grown children, family tragedies, economic disasters, and other untoward events from which no life is ever free. In such cases it would seem entirely proper that the court give heed to the admonition and interest in “for better or worse.” ‘Brady’ Standard Reaffirmed Eleven years after Hessen and four years after the enactment of the Equitable Distribution Law, the Court of Appeals in Brady v. Brady, 13 reaffirmed the Hessen standard including the higher level of proof required for marriages of long duration 14 holding that “substantial misconduct” is required to be demonstrated, and finding insufficient, claims that the marriage is “dead.” Physical violence, however, is not required to prove cruel and inhuman treatment where a party’s mental well-being is endangered by the other’s misconduct. 15 In Silver v. Silver, 16 the Second Department held that in a 20-year marriage proof that it was “strained, tense, and unpleasant” was insufficient to warrant the granting of a divorce. “Riotous quarrels” are also insufficient. 17 Evidence of an adulterous relationship may also constitute cruel and inhuman treatment even where the adultery itself is not sustained as a ground for the divorce. 18 What does constitute cruel and inhuman treatment is a question of fact that will depend on the circumstances of the case and the trial court is given great deference in the making of that determination. 19 In Doyle v. Doyle, 20 the Third Department reversed the trial court, however, and denied the divorce, holding, “Although the absence of expert testimony is not necessarily fatal to an action based upon cruel and inhuman treatment, plaintiff’s failure to submit any medical proof is a relevant factor which can be considered in determining the sufficiency of the trial evidence in a cruel and inhuman treatment divorce action involving a long-term marriage.” The court also found no proof “such as objective evidence that defendant’s misconduct adversely affected plaintiff’s health” and no “evidence of the type of physical or verbal abuse which could give rise to an inference that defendant’s misconduct created an actual threat to plaintiff’s safety.” ‘Boorish Behavior’ In another Third Department case, Omahen v. Omahen, 21 the court denied the divorce, where the wife acknowledged there was no physical abuse nor swearing and the husband primarily engaged in “boorish behavior, bigoted comments or name calling” directed at others. While some bigoted remarks directed at the wife were made, she did not complain about them at the time and showed no substantive physical signs of their ill effect on her health. The Omahen court held, “Cruelty implies wantonness or the intent to inflict suffering or conduct of such character as to seriously affect or impair the health of a spouse as to render cohabitation unsafe or improper.” Accordingly, based on the consistent precedent that “merely unpleasant conduct, such as name calling or a cold, uncommunicative and unsympathetic manner, does not of itself constitute cruel and inhuman treatment” and the lack of physical or mental symptomatology, the court could not grant the divorce. Turning to those cases referenced initially, the court, in the most recent case, Ozkan, addressed the wife’s failure to meet the statutory requirements of both cruel and inhuman treatment and adultery in a 16-year marriage. It found that not only did her testimony prove lacking in its substance and credibility, but that even the husband’s notorious commission of adultery, which would normally constitute cruel and inhuman treatment, was unavailable since the “rigid evidentiary proofs” of that ground were not met and the parties’ voluntary cohabitation constituted a valid defense. 22 Similarly, in M.G. v. L.G., the court denied the wife’s claim of cruel and inhuman treatment in an 11-year marriage where the record was “bare” as to the physical and emotional toll allegedly resulting from the limited conduct complained of. In Jacob, the Third Department, in a 22-year marriage, found the husband’s request for a divorce on the grounds of cruel and inhuman treatment was properly denied by the trial court, but that the wife’s counterclaim for abandonment, which was granted by the trial court, should also have been denied. The court held that the husband’s “general, nonspecific and conclusory statements . . . without other corroborating evidence, is simply insufficient to justify a judgment of divorce” and that the wife’s attempt to transform the husband’s six-month abandonment at the time she interposed her counterclaim into a statutory abandonment at the time of trial by “conform(ing) the pleadings to the proof” was also unavailing and required reversal of the trial court. Both parties, then, seeking a divorce against the other, remain married. Constructive Abandonment In Gerard, the court denied a divorce in a 22-year marriage based on the wife’s failure to prove her claim of constructive abandonment even though the court found her testimony to be credible. Such a claim, made under DRL 170(2), requires the abandonment to exist for a period of one or more years from the time of commencement of the action or counterclaim. 23 The court noted, “In order to rise to the level of constructive abandonment, the refusal must be unjustified, willful and continued, despite repeated requests” from the other spouse for the resumption of relations. Where there is no proof that one spouse repeatedly requested a resumption of sexual relations, evidence that the other spouse refused a single request to engage in sexual relations is insufficient to sustain a cause of action for divorce on the ground of constructive abandonment. Moreover, the details regarding the constructive abandonment cannot be “too vague and unspecific” in order to support a finding that plaintiff spouse continuously, or at least periodically, requested a resumption of normal sexual relations. The Second Department in Silver cited above, and by the Gerard court, further held, “It is well settled that to establish a cause of action for 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 and that the abandonment continued for at least one year.” Finally, the court in S.C. v. A.C. denied the wife a divorce after a 30-year marriage, and commented as follows: “[I]n finding that Defendant’s conduct in this long term marriage does not rise to a level sufficient to grant a divorce, the ultimate result is that there are no winners. The Plaintiff may be forced to remain in a marriage she clearly is desirous of ending, or may be required at her own personal and financial sacrifice to relocate and set up residence outside of the state so as to take advantage of the no-fault divorce laws offered by sister jurisdictions. Defendant may have won the battle but in fact has lost the war as he will remain in a marriage with a partner who is no longer desirous of continuing the relationship.” The cost of divorce in financial and emotional terms is already enormous in many instances. The matrimonial bar awaits the outcome of the pending legislative proposal and whether or not grounds will remain subject to litigation. Lee Rosenberg is a partner in Saltzman Chetkof & Rosenberg in Garden City specializing in matrimonial and family law. Endnotes: 1. NYLJ, May 7, 2004, at 24, col 1. 2. NYLJ, Aug. 8, 2004, at 19, col 3. 3. NYLJ, April 5, 2004, at 19, col 1. 4 NYLJ, Jul. 6, 2004, at 19, col 3. 5. In Klein v. Klein, 2004 NY Slip Op 51062(U), Justice Anthony J. Falanga in Nassau County dismissed a cruel and inhuman treatment complaint on motion pursuant to CPLR 3211(a)(7). 6. 8 AD3d 725, 778 NYS2d 191. 7. DRL ��170 and 220. 8. DRL 236B(5) permits the court to distribute marital property only where the marriage is actually dissolved. 9. Brady v. Brady, 64 NY2d 339, 486 NYS2d 891, 476 NE2d 290 (1985); Bradley v. Bradley, 298 AD2d 485, 748 NYS2d 504 (2nd Dept 2002). 10. Brady at endnote 8; Silver v. Silver, 253 AD2d 756, 677 NYS2d 593 (2nd Dept 1998). 11. Denny v. Denny, 65 AD2d 658, 409 NYS2d 443 (3rd Dept 1978) aff’d 48 NY2d 915, 425 NYS2d 91, 401 NE2d 213 (1979). 12. 33 NY2d 406, 353 NYS2d 421, 308 NE2d 891 (1974). 13. Brady at note 8. 14. In Shortis v. Shortis, 274 AD2d 880, 711 NYS2d 578 (3rd Dept 2000), the Third Department held that a marriage of 11 years was a “long term” marriage requiring heightened scrutiny on the issue of cruel and inhuman treatment. 15. Meltzer v. Meltzer, 255 AD2d 497, 680 NYS2d 618 (2nd Dept 1998). 16. Silver at note 9. 17. Palin v. Palin, 213 AD2d 707, 624 NYS2d 630 (2nd Dept 1995). 18. Gentner v. Gentner, 289 AD2d 886, 736 NYS2d 431 (3rd Dept 2001). 19. French v. French, 262 AD2d 280, 691 NYS2d 121 (2nd Dept 1999). 20. 214 AD2d 918, 625 NYS2d 693 (3rd Dept., 1995) lv. den. 87 NY2d 809, 639 NYS2d 310, 662 NE2d 791 (1995). 21. 289 AD2d 890, 735 NYS2d 236 (3rd Dept., 2001). 22. See DRL �171 23. Jacob at note 5; Adams v. Adams, 255 AD2d 535, 680 NYS2d 663 (2nd Dept 1998); Phillips v. Phillips, 70 AD2d 30, 419 NYS2d 573 (2nd Dept 1979).

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