| Kung v Kung |
| 2010 NY Slip Op 00633 [69 AD3d 1295] |
| January 28, 2010 |
| Appellate Division, Third Department |
| Kelly Kung, Also Known as Wan Ping Li, Respondent, v ConradKung, Also Known as Chein Nan Kung, Appellant. |
—[*1] Spada Law Firm, Albany (Justine L. Spada of counsel), for respondent.
Cardona, P.J. Appeal from a judgment of the Supreme Court (McNamara, J.), entered May27, 2009 in Albany County, granting plaintiff a divorce, upon a decision of the court.
The parties were married in May 1991 and have two children. In September 2007, plaintiffcommenced this action for divorce on the ground of cruel and inhuman treatment. Following anonjury trial, Supreme Court granted plaintiff a divorce, resulting in this appeal by defendant.
A judgment of divorce upon the ground of cruel and inhuman treatment is warranted when adefendant's conduct "so endangers the physical or mental well being of the plaintiff as renders itunsafe or improper for the plaintiff to cohabit with the defendant" (Domestic Relations Law§ 170 [1]). When a marriage of long duration is involved, as here, a higher degree of proofregarding serious and substantial misconduct is required (see Xiaokang Xu v Xiaoling Shirley He, 24 AD3d 862, 863[2005], lv denied 6 NY3d 710 [2006]; Pfoltzer v Morris-Pfoltzer, 9 AD3d 615, 616 [2004]). SupremeCourt is vested with broad discretion in determining whether a spouse's conduct rises to the levelof cruel and [*2]inhuman treatment and we defer to that court'sresolution of credibility issues (see Xiaokang Xu v Xiaoling Shirley He, 24 AD3d at863; Conrad v Conrad, 16 AD3d794, 795 [2005]).
The evidence adduced at trial established that during the five years prior to thecommencement of this action, defendant would normally come home after 1:00 a.m., many timesintoxicated, from the restaurant he managed and wake up plaintiff insisting that they have sexualrelations against her wishes. According to plaintiff, if she refused, defendant would begin yellingand would go "ahead with it anyway." Defendant's conduct continued despite plaintiff resortingto sleeping on the couch for over a year. Plaintiff testified that defendant's conduct, as well as theoverall demeaning manner in which he treated her, made her feel scared, disrespected andnervous. She also claims to suffer from sleeplessness and headaches. Furthermore, plaintifftestified that defendant came home on June 21, 2006 smelling of alcohol and again insisted onhaving sexual relations. According to plaintiff, when she refused, defendant became upset. Whenhe continued to persist, plaintiff bit him in order to get away. She indicated that he then pushedher causing her to hit her head on the coffee table. Plaintiff then called the police.
Although defendant denies some of plaintiff's allegations, he does not deny the manner inwhich he routinely engaged in sexual relations with plaintiff, explaining that plaintiff never said"no," either in English or their native language. Rather, she would cross her arms and put apillow over her head while he continued to have sexual relations with her.
Under all these circumstances, we conclude that there is a sufficient basis for SupremeCourt's determination that defendant engaged in a course of conduct that endangered plaintiff'smental well-being rendering it improper for her to cohabit with him. Furthermore, contrary todefendant's contention, a finding of cruel and inhuman treatment is not negated by plaintiff'scontinued residence in the marital home, given her inability to speak English, the presence of herdaughters at the house and her total reliance on defendant for financial assistance. Nor does thelack of medical proof require dismissal under the particular facts of this case.
Spain, Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed,with costs.