Donley v. Donley

Order unanimously affirmed without costs. Memorandum: We reject the contention of plaintiff that Supreme Court erred in granting defendant’s motion, made at the close of plaintiffs proof, to dismiss the complaint in this action seeking a divorce on the ground of cruel and inhuman treatment. To be entitled to a judgment of divorce on that ground, "plaintiff [is] required to establish serious misconduct on the part of defendant such that [her] physical or mental well being was endangered and continued cohabitation with defendant was unsafe or improper” (Urtis v Urtis, 181 AD2d 1001 , 1002; see, Domestic Relations Law § 170 [1]; Brady v Brady, 64 NY2d 339 , 343). Moreover, because of the long duration of the parties’ marriage, 18 years, a "high degree of proof’ is required to establish cruel and inhuman treatment (Walczak v Walczak, 206 AD2d 900 , 901; see, Brady v Brady, supra, at 344 ; Wikiera v Wikiera, 233 AD2d 896 [decided herewith]).

Here, plaintiffs proof established, at best, an acrimonious, unhappy and strained marital relationship, which is insufficient to meet the high degree of proof required in a long-term marriage to establish cruel and inhuman treatment (see, Brady v Brady, supra, at 344-346 ; Wikiera v Wikiera, supra; Gulisano v Gulisano, 214 AD2d 999 ; Walczak v Walczak, supra, at 901 ; Marciano v Marciano, 161 AD2d 1163 , 1164, lv denied 76 NY2d 707 ). No evidence was introduced of any physical violence between the parties or any vulgar or obscene language by defen