The Plaintiff (“Husband “) commenced this action for divorce on November 24, 2008, by filing the Summons with Notice with the Nassau County Clerk. Plaintiff’s Verified Complaint sets forth causes of action for cruel and inhuman treatment, abandonment, and adultery. Defendant (“Wife”) interposed a Verified Answer denying certain allegations, demanding certain relief, and setting forth Affirmative Defenses for, inter alia, violation of the relevant statute of limitations; lack of specificity; failure to state a cause of action; forgiveness of the acts of adultery; and recrimination.
The parties were married on May 22, 1979 in Jerusalem, Israel. There are two emancipated children of the marriage. Husband filed a prior action for divorce in the Supreme Court, Suffolk County, which was discontinued on June 25, 2008. A second action was commenced by Husband in Nassau County Supreme Court on July 1, 2008 by the filing of a Summons with Notice with the Nassau County Clerk. The second action was discontinued on consent of both parties. The instant action is the third action for divorce commenced by Husband.
The husband testified that Wife engaged in numerous extramarital affairs. He testified that he discovered numerous e-mail exchanges between the Wife and at least two separate men, which caused him to suffer extreme emotional pain, leading to medical and psychological problems, requiring medical attention and medications. He testified that he discovered the details of her affairs when he was cleaning Wife’s computer in November of 2005.
The husband testified that the parties have lived separate and apart since in or about April 2007, when Wife removed most of her belongings from the marital residence and moved, without the consent of Husband, to Richmond, Virginia, where she has been operating a bath and shower business. He further testified that prior to her permanent relocation to Virginia, Wife voluntarily lived in the basement of the marital residence starting since in or about 1991. He testified that Wife refused to return to the marital bedroom, despite his repeated requests.
The husband testified that although Wife resided in Virginia on a full-time basis, starting in or about April of 2007, Wife returned to the marital residence approximately ten times, during which times she stayed in the parties’ daughter’s bedroom, and had no interaction with Husband, other than negative interaction. She did not engage in sexual relations with Husband. He testified that the duration of her visits were anywhere from overnight to just hours.
Husband testified that the physical abandonment of the Husband by Wife commenced in or about 1991, when Wife moved out of the marital bedroom and into the basement and refused to return and resume cohabitation with Husband. He also testified that he did not recall when the parties had last had sexual relations but that it was at least five years prior to the commencement of the instant action.
Husband testified that Wife was extremely physically abusive, and that in or about August of 2005, Wife attempted to attack him with a Japanese sword. Husband testified that Wife could have killed him if not for the parties’ daughter’s intervention. He testified that the sharp edge of the sword came within a few inches of his chest.
Husband testified that he observed Wife pushing their daughter back in an attempt to reach the bedroom, but when she saw Husband in the kitchen, she began to charge at him and waive the sword through the sides of their daughter’s body. He testified that Wife became frantic in her attempts to reach him and almost did hit him on the head and parts of his chest. He testified that he slowly retreated back in the bedroom and locked himself in for the night, fearing that Wife would come back and hurt him in the middle of the night. He did not call the police at any point in this incident, nor did he testify as to any actual injuries inflicted by Wife upon him during the course of the incident.
Husband testified that in or about November of 2005, Wife requested that he, a computer expert, clean her computer as she believed it was too slow due to a virus.He testified that the e-mail file look suspiciously large and he looked inside and found volumes of e-mail exchanges between the Wife and various male lovers. He downloaded these e-mails from Wife’s computer. The explicit e-mails were entered into evidence and the content of one such e-mail was read into the record. The content of the e-mail was extremely sexually explicit, describing a sexual encounter, although it is unclear if it was description of an actual encounter or simply an explicit story.
The husband testified that in or about December of 2006, he found, among Wife’s belongings in the basement, the confirmation page for hotel reservations for a one-night stay from December 22 to December 23, at a Hotel in Rybrook, New York. The reservation was under the name of the husband and the charge was made on his American Express credit card. Husband testified that Wife was away that Friday, and did not return from work at all, and did not answer her cellular telephone all weekend, although Husband called every hour. Upon her return, Husband showed Wife the hotel reservations printout and asked her where she had been. Wife started screaming and yelling that she could do what she wants.
Husband testified that the Defendant had violent outbursts every “couple of weeks” within the five years proceeding the commencement of this divorce action. He particularly recalled at least one outburst which occurred in 2006, and testified that while sitting on his bed with his laptop, Wife appeared at his bedroom door, and began to grab books and throw them at him. He testified that some books hit him and some missed. He testified that she then picked up a bottle and threw it at him, which missed him.
Husband testified that Wife did not spend Jewish or civil holidays, birthdays, Mother’s Day or Father’s Day with him or their children for at least two years prior to the commencement of the action.
Husband testified that he began to suffer from a sleeping disorder as he feared sneak attacks from Wife in the middle of the night. He testified that he was forced to lock his bedroom door each night, and in the morning he left wood markers by the door so he could have advance notice upon his return to the marital residence that Wife was at the house.
Husband testified that in or about November 2006, while still employed at Alexander Holding, Wife revealed to him that she planned to open a bath and shower renovation business, the same type of business conducted by her then current employer. He further testified that she only revealed that the business would be located in Virginia, because it is a good market for such a business. He testified that he attempted to persuade Wife to stay in New York with him and work on their marriage. Wife quit her job in or about March of 2007, moved to Virginia in or about April of 2007, against Husband’s objections and she refused to reveal to him where she resides and with whom.
He testified that he pleaded with her not to move to Virginia, and to go with him to marriage counseling to work on their marriage. She refused and stated that she did not believe in counseling, that she had already secured a location for her business and rented an apartment for herself.
On May 23, 2007, Wife returned to New York, after not having appeared in New York for weeks, for a mutual friend’s birthday party, which took place in a restaurant. Wife did not reveal to Husband that she intended to attend the party. He testified that she went straight to the restaurant, without stopping at the marital residence prior thereto.
Husband testified that although Wife moved to Virginia in or about April of 2007, she moved her remaining personal property, including furniture, in or about October of 2008. She used a large van with Virginia license plates and loaded the remaining personal belongings from the basements, and boxes left in their daughter’s room. She removed four wooden cabinets and two dressers containing her clothing, and all the clothing hung up on a rack in the basement. After she moved to Virginia in April of 2007, Husband testified that Wife did not keep any personal belongings in the marital residence for daily use. She did not keep a toothbrush, toiletries, make-up, or sleep wear. She always brought such items with her when she came up to New York.
During her testimony, Wife denied living in the basement of the marital residence. She, however, testify that while she was in college, there were occasions when she slept in the basement either because she was studying or because Husband’s snoring prevented her from sleeping. However, she further testified that she continued to reside in the marital bedroom even after she was spending time in Virginia.
Wife testified that she never intended to remove herself from the marital residence, and that it was never her intent to permanently leave New York. She testified that she continues to maintain her New York State driver’s license.
She testified that it was her intention to hire a manager and only spend a few days a week in Richmond, but that unfortunately, as a result of a serious downturn in the economy and in the home improvement field, she had to alter her plans and spend more time in Richmond then she had originally anticipated. Nonetheless, she continued to return to the marital residence, on an on-going basis. In further support of her testimony, an e-mail exchange between the parties from June of 2007, entered into evidence. In the e-mails, Wife described what was taking place in her business, how busy her work week was and that she would be returning to Plainview on the following weekend.
During her testimony, Wife produced numerous travel receipts, gasoline receipts and other miscellaneous receipts, to demonstrate her continual travel to and from Richmond, Virginia and Plainview, New York. Said receipts covered the period from May or June, 2007 through 2008 and into 2009. She testified that in addition to her continuous returns to New York, she was present for numerous social and religious events. These included her daughter’s college graduation, Passover, a party for a close family friend, Mother’s Day and other events. She noted that her husband was frequently out of the country, on trips to Israel and Italy.
Also entered into evidence was Wife’s New York State driver’s license, which, she testified, was the only driver’s license that she possessed. Wife’s current New York State registration for her 2008 Nissan motor vehicle, the only vehicle she owned, along with her New York State Insurance Identification Card, both showing her address at xxxx, Plainview, New York, 11803, the address of the marital residence, were also marked into evidence.
Wife further testified that her doctors and dentist were all located in Nassau County.
She also testified that in 2008, after receiving an extension, she filed her 2007 Federal tax return, showing her residence at xxxx, Plainview, New York 11803. She also testified that she never filed a return in the State of Virginia
During cross-examination, Wife asserted her Fifth Amendment right against self-incrimination when asked whether she had engaged in extramarital affairs in the past with other men, either prior to the five year statute of limitation period or during the five years immediately prior to the commencement of the action.
To obtain a divorce on the grounds of cruel and inhuman treatment, a plaintiff must show “a course of conduct by the defendant which is harmful to the physical or mental health of the plaintiff such that it makes cohabitation unsafe or improper.” A plaintiff must demonstrate more than incompatibility or that they have irreconcilable differences — serious misconduct must be shown.
In determining whether the defendant’s conduct justifies the granting of a divorce on the grounds of cruel and inhuman treatment, the conduct complained of must be viewed in the context of the entire marriage including its duration.
The duration of the marriage is a significant factor in deciding whether the offending behavior constitutes “serious misconduct”. “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” In a marriage of longer duration, however, a higher degree of proof is required to establish cruel and unhuman treatment.
Whether the conduct complained of constitutes cruel and inhuman treatment is a question of fact which will depend upon the circumstances of each case and is to be decided by the finder of fact. See, Soto v. Soto, supra. “The intense variables in the most intricate of all human relationships create levels of complication fundamentally unsuited for legal rules which aim at certainty”.
The court may also grant a divorce on the grounds of cruel and inhuman treatment based upon evidence that a spouse engaged in an open extramarital affair. Such conduct if proven by credible evidence, may render cohabitation improper, though not necessarily unsafe.
Issues of credibility have arisen in the case at bar as a result of the parties’ contradictory testimony relating to the Plaintiff’s claim of cruel and inhuman treatment. The Court having carefully considered the testimony given and the evidence presented, finds the Plaintiff’s testimony to be more credible than that of the Defendant, with respect to the allegations of cruel and inhuman treatment. Accordingly, where issues of credibility have arisen with respect to the issue of cruel and inhuman treatment, the Court has resolved such issues in favor of the Plaintiff.
Notwithstanding the determination on credibility, after careful and thoughtful review of the totality of the evidence, including the long duration of the parties’ marriage, and failure of the Plaintiff to prove adultery on the part of the Defendant, it is the Court’s determination that the credible evidence is insufficient to sustain a cause of action based upon cruel and inhuman treatment.
Plaintiff provided no testimony from any physicians nor did he even produce any medical records. Additionally, those allegations of adulterous acts on the part of Defendant made in substantiation of Plaintiff’s cause of action for cruel and inhuman treatment were not proven by the testimony or evidence presented.
Accordingly, having failed to establish a prima facie showing of cruel and inhuman treatment by the Defendant, the FIRST Cause of Action contained in Plaintiff’s Verified Complaint is dismissed.
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