| Gulati v Gulati |
| 2008 NY Slip Op 04057 [50 AD3d 1095] |
| April 29, 2008 |
| Appellate Division, Second Department |
| Shikha Gulati, Appellant, v Dinesh Gulati,Respondent. |
—[*1] Moran, Brodrick & Elliot, Garden City, N.Y. (Robert H. Brodrick and Thomas A. Elliot ofcounsel), for respondent.
In an action for a divorce and ancillary relief, the plaintiff wife appeals (1) from a judgmentof the Supreme Court, Suffolk County (Bivona, J.), dated May 17, 2006, which, upon a decisionof the same court dated March 21, 2006, made after a nonjury trial, inter alia, dismissed her causeof action for a divorce on the ground of cruel and inhuman treatment, and (2), as limited by herbrief, from so much of an order of the same court dated November 27, 2006, as, uponreargument, adhered to the original determination dismissing the cause of action for a divorce onthe ground of cruel and inhuman treatment and denied that branch of her motion which was for ajudgment of divorce on the additional ground of constructive abandonment.
Ordered that the judgment is affirmed; and it is further,
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the respondent.
The plaintiff wife and the defendant husband were married in New York on June 9, 1990 andhave three children. On April 3, 2003 the wife commenced the instant action for a divorce,alleging cruel and inhuman treatment. At the ensuing trial, the wife testified that the husband hadlittle interest in sexual intercourse, and that they had sex as infrequently as three or four times ayear. [*2]She further testified that when the husband was angrywith her he would give her the "silent treatment," which could last for weeks, and on oneoccasion, lasted four months. At the conclusion of the trial, the court allowed the plaintiff toconform the pleadings to the proof in order to seek a judgment of divorce on the additionalground of constructive abandonment.
In a decision dated March 21, 2006 the Supreme Court held that the wife had not made out aprima facie case for divorce based on the ground of cruel and inhuman treatment. In a judgmentdated May 17, 2006 the Supreme Court, among other things, dismissed that cause of action withprejudice. However, neither the judgment nor the decision upon which it was based addressed theadditional claim of constructive abandonment. Thereafter, the wife moved for leave to reargueand for a judgment of divorce on the additional ground of constructive abandonment. In an orderdated November 27, 2006, made upon reargument, the court adhered to the originaldetermination and denied that branch of the wife's motion which was for a judgment of divorceon the ground of constructive abandonment. This appeal ensued.
In order to be entitled to a divorce based on cruel and inhuman treatment the plaintiff mustshow that the defendant's conduct "so endangers the physical or mental well being of the plaintiffas [to] render[ ] it unsafe or improper for the plaintiff to cohabit with the defendant" (DomesticRelations Law § 170 [1]; Cauthersv Cauthers, 32 AD3d 880 [2006]; Pfoltzer v Morris-Pfoltzer, 9 AD3d 615, 616 [2004]). In order toconstitute cruel and inhuman treatment, the misconduct must be "serious," and something morethan "mere incompatibility" must be shown (Brady v Brady, 64 NY2d 339, 343 [1985]).A "showing of irreconcilable or irremedial differences is insufficient by itself" (Tsakis vTsakis, 110 AD2d 763, 764 [1985]), as is a showing that the marriage is "dead" (Brady vBrady, 64 NY2d at 346). It is not enough for the plaintiff to show that the defendant engagedin only "[r]eprehensible and highly offensive behavior" (Gross v Gross, 40 AD3d 448 [2007]). However, the plaintiff is notrequired to "prove criminal conduct or actual physical or mental injury"; rather, it is sufficient forthe plaintiff to demonstrate a "pattern" of misconduct which includes "verbal abuse" and"physical harassment" (Ober v Rogers-Ober, 287 AD2d 282, 282 [2001]). The trial courthas broad discretion as to whether to grant a cruelty divorce (see Brady v Brady, 64NY2d at 345), and its determination should not be lightly overturned (see Freas v Freas, 33 AD3d 1069[2006]). Here, the most violent act the wife can point to is the husband throwing whiskey in herface. The wife's testimony regarding the husband's disinterest in sexual intercourse and refusal tospeak to her for periods of time demonstrates only that the marriage was "dead," which wasinsufficient to establish entitlement to a divorce on the ground of cruel and inhuman treatment(see Tissot v Tissot, 243 AD2d 462, 463 [1997]; Meier v Meier, 156 AD2d 348,350 [1989]).
" '[T]o 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 abandoningspouse unjustifiably refused to fulfill the basic obligations arising from the marriage contract andthat the abandonment continued for at least one year' " (Silver v Silver, 253 AD2d 756,757 [1998], quoting Lyons v Lyons, 187 AD2d 415, 416 [1992]). In order to rise to thelevel of constructive abandonment, the refusal must be "unjustified, willful, and continued,despite repeated requests from the other spouse for resumption of cohabitation"(Caprise v Caprise, 143 AD2d 968, 970 [1988] [internal quotation marks and citationomitted]). Evidence that a party refused sexual relations for the required period and that therefusal was willful, continued, and unjustified would be sufficient (see Ostriker vOstriker, 203 AD2d 343, 344-345 [1994]; Gunn v Gunn, 143 AD2d 393 [1988];Benarroch v Benarroch, 55 AD2d 943 [1977]). Here, the Supreme Court properly foundthat the wife failed to establish a prima facie case for divorce based on the ground of constructiveabandonment, because she failed to present any evidence that [*3]the husband's refusal to engage in sexual intercourse lasted for "atleast one year" (Silver v Silver, 253 AD2d at 757).
The wife's remaining contention is without merit. Spolzino, J.P., Lifson, Florio andDickerson, JJ., concur.