plaintiff did not appeal from so much of the decree of divorce, entered August 2, 1979, as granted her husband a divorce on the ground of cruel and inhuman treatment, we are of the view that the portions appealed from are inextricably intertwined with said portion and, therefore, this court is not precluded from passing upon so much of the decree of divorce as is necessarily affected by the portion from which an appeal has been taken (see
Matter of Burk, 298 NY 450 , 455;
Foley v Roche, 68 AD2d 558 , 564). In order to be granted a divorce on the grounds of cruel and inhuman treatment, defendant was required to prove that plaintiff’s conduct so endangered his physical or mental well-being as to render it unsafe or improper for him to cohabit with plaintiff (Domestic Relations Law, §
170, subd [1]). In support of his counterclaim, defendant offered proof that during their separation plaintiff entered upon a course of conduct which created pressure upon the children of the marriage to refrain from visiting with or maintaining emotional ties with him. According to defendant’s testimony, he stopped exercising his visitation rights shortly after the parties entered into the separation agreement due to the fact that he believed continued visitation would be injurious to the children as a result of the pressure brought to bear upon them by plaintiff. It should be noted that at the time this action was commenced all of the children of the parties had reached the age of majority; that during the period of the parties’ separation defendant remarried; and that due to the Statute of Limitations contained in section
210 of the Domestic Relations Law, defendant was limited to proving plaintiff’s alleged cruel and inhuman treatment of him only during the five years before 1978, when this action was begun. Considering the length of time the parties had been married, a high degree of proof was required to show that plaintiff’s conduct so endangered defendant’s physical and mental well-being as to render it unsafe or improper to cohabit
(Denny v Denny, 65 AD2d 658 ). Even accepting defendant’s allegations as true, we are of the opinion that he has failed to prove “cruel and inhuman treatment” within the meaning of subdivision (1) of section
170 of the Domestic Relations Law. Accordingly, so much of the decree of divorce as granted defendant a divorce on the grounds of cruel and inhuman treatment must be reversed. Having so concluded, we find no impropriety in the granting of alimony payments to plaintiff. It is also contended by defendant that plaintiff failed to substantially comply with the terms of the separation agreement and, therefore, she was not entitled to a conversion divorce. Specifically, defendant urges that plaintiff prevented him from exercising his visitation rights provided in the separation agreement. Subdivision (6) of section
170 of the Domestic Relations Law requires that a plaintiff submit satisfactory proof of substantial performance of all the terms and conditions of the separation agreement in order to be granted a conversion divorce. In our view, upon examination of the entire record, the trial court could find that although plaintiff did not encourage visitation, she did not prevent it; that plaintiff did not deny defendant his right to visitation; and that defendant chose not to exercise his visitation rights because of his own beliefs concerning the emotional harm to the children that would result. The record also reveals that defendant did not discuss the problem with plaintiff nor did he take any legal action over the years to enforce his visitation rights or to gain custody of the children himself. We conclude,