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DivorceAppeals Court Denies Divorce To Wife Assaulted- No Cruel and Inhuman Treatment

May 23, 2007

The Appellate Division, in the aptly named case, Gross v. Gross, reversed a trial court’s grant of a divorce based upon the husband’s cruel and inhuman treatment of the wife.

In reaching this decision, the appeals panel reaffirmed that in marriages of long duration, a high degree of proof of cruel and inhuman treatment is necessary to make out a cause of action.   In this case, Mrs. Gross claimed that Mr. Gross forced himself on her sexually ramming her up against the bathroom wall. Perhaps, if the parties had not been married for thirty seven years, this sexual assault may have been a sufficient basis for a divorce.

Not to beat a dead horse, but if New York had a no fault divorce, it would have been unnecessary to measure the amount abuse needed to sustain a cause of action for cruel and inhuman treatment.

The New York Legal Update wrote this about the decision:

“Cruel and inhuman treatment” is one of the six grounds for granting a divorce in New York. Just what type of conduct constitutes “cruel and inhuman treatment.” It is defined by Domestic Relations Law § as:

treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.

A decision from the First Department yesterday (Gross v Gross, 2007 NY Slip Op 04362) illustrates and reminds that obtaining a divorce on cruel and inhuman treatment is not necessarily an easy thing to do, and that somewhat isolated incidents involving physical altercations is not necessarily enough. The evidence at trial was as follows.

Plaintiff wife was asked at trial whether defendant had ever “physically force[d] himself on [her] sexually.” In response, plaintiff testified that “I would have to say yes. It’s only one time that, really where he hurt me.” Plaintiff explained that defendant “[r]ammed [her] up against the wall” in the bathroom of their residence. Plaintiff did not elaborate in any other way about what she meant in stating that defendant had “force[d] himself on [her] sexually.” Plaintiff offered no evidence that she had sustained any injuries as a result of this incident. In fact, she testified on cross-examination that she did not suffer any physical injuries as a result of the incident. Plaintiff also testified that defendant, on many occasions, “physically grabbed [her].” When asked to describe how defendant “grabbed” her, plaintiff stated: “[h]e’ll grab me, he’ll pull me down the hall, he’ll block me so I can’t leave the room, throw me on the bed, push me against the wall.” Again, no testimony was elicited from plaintiff that she sustained any injuries as a result of defendant’s conduct.

The Supreme Court had granted the divorce. However, on this evidence, the First Department reversed and dismissed the complaint. The Court noted that the parties had been married for over 37 years, and that under such circumstances, a “high degree” of proof of cruel and inhuman treatment was required. With respect to the plaintiff’s testimony, the Court stated that it could include conduct ranging from the criminal (e.g., forcible rape) to the merely obnoxious. But it stated that reprehensible and highly offensive behavior is not necessarily sufficient to establish the cruel and inhuman treatment. Here it found that the plaintiff’s uncorroborated testimony regarding unwanted physical contact was vague and general, and there was no evidence as to the effects of defendant’s conduct on her physical or mental well-being. The Court further noted that the parties continued to reside together in the marital residence through the trial, they were able to talk to each other in a civilized manner, have dinner together every night, go out for meals and to the movies, and attend social functions.

The lesson here is clear that if there is not a lot of evidence of cruel and inhuman treatment another ground for divorce should be pleaded

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