Berlin v. Berlin, V--A

• Decision Date: 22 October 1970
• Docket Number: V--A
• Parties: Georgina BERLIN, Plaintiff, v. Milton BERLIN, Defendant
• Court: New York Supreme Court

Page 911

314 N.Y.S.2d 911

64 Misc.2d 352

Georgina BERLIN, Plaintiff, v. Milton BERLIN, Defendant.

Supreme Court, Special Term, Nassau County, Part V--A.

Oct. 22, 1970.

Gene Howard, Mineola, for plaintiff.

Joseph D. Stim, Farmingdale, for defendant.

MEMORANDUM

BERTRAM HARNETT, Justice.

Mrs. Georgina Berlin seeks to divorce her husband Milton because of cruel and inhuman treatment. She does not claim any physical assault. Rather, she claims such abusive treatment as endangers her mental well-being making it unsafe or improper for the marriage to continue. Her husband defends, first, that her complaints are simply bearable irritants of marital life and not grounds for divorce, and, second, that in any event, there can be no divorce based on mental cruelty without a showing that the wife's physical or mental health has been seriously affected, and for this there must be the supporting testimony of a medical doctor.

Therein lies the case, posing issues fresh to this jurisdiction.

Before going to the facts, it may be helpful to outline the frame of legal reference. Domestic Relations Law § 170(1) provides among the various grounds for divorce:

'* * * cruel and inhuman treatment * * * such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant'.

Contested matrimonial decisions are not often easily resolved. The intense variables in the most intricate of all human relationships create levels of complication fundamentally unsuited for legal rules which aim at certainty. Only the extremes of the matrimonial trouble spectrum are reasonably plain. At one end is the husband who physically beats his wife with conspicuous regularity to her continued objection. This woman would have grounds for divorce for cruel and inhuman treatment. At the other end are the husband and wife who squabble constantly and engage in the psychological games and charades recognizable to many married couples who continue to reside within a generally acceptable relationship. The squabblers would not qualify for a New York divorce for cruel and inhuman treatment. There are jurisdictions which permit divorce for 'irreconcilable differences', for 'incompatibility', or even where the courts simply deem it appropriate (See Burch v. Burch, 3 Cir., 195 F.2d 799; Clark v. Clark, 54 N.M. 364, 225 P.2d 147; Sylvester v. Sylvester, 330 Mass. 397, 113 N.E.2d 830; Grow v. Grow, 134 Ky. 816, 121 S.W. 654; Reinhard v. Reinhard, 96 Wis. 555, 71 N.W. 803. See also 24 Am.Jur.2d, Divorce and Separation; Am.Jur.2d Desk Book, Doc. No. 125), but these most liberal grounds do not form the existing law in New York, regardless of privately held sociological tenets. Whatever the legislative wisdom, New York divorce policy rests by legislative prescription with some kinds of statutory standards, or perhaps these are delay obstacles.

But many, maybe most, disputed cases do not involve the wife beaters or the squabblers. They are like the one at bar. They are intermediate cases in the matrimonial trouble spectrum.

'Cruel and inhuman treatment' as generally declared in Domestic Relations Law § 170(1) may be paraphrased in its bearing in this case as such Conduct which so endangers the mental well-being of the wife as renders it improper for her to cohabit with the defendant husband. The word 'health' nowhere appears in the statute, nor does the statute prescribe any presumptions or standards of proof. And, it has been long held in the Appellate Division, Second Department that since the facts of each case are necessarily different, each requires a result attuned to the human components which constitute that family's problem. Tower v. Tower, 134 App.Div. 670, 119 N.Y.S. 506.

In statutory analysis, it is always helpful to search out legislative policy and intent, where plain meaning is challengeable. In 1966 the New York State Legislature cast aside the State's venerable divorce pattern and literally rewrote the book. The legislative purpose was manifestly one of reform. The classic statement of legislative intent is the now famous dictum of the Court of Appeals in Gleason v. Gleason, 26 N.Y.2d 28, 39, 308 N.Y.S.2d 347, 354, 256 N.E.2d 513, 519:

'* * * implicit in the statutory scheme is the recognition that it is socially and morally undesirable to compel a couple whose marriage is dead to remain subject to its bonds'.

The Court must now turn these principles to the facts of the case. Since this matrimonial action brought under Domestic Relations Law § 170(1) was tried before the Court without a jury, the Court must make the requisite findings of fact necessary to support a judgment.

The wife's case consisted of her testimony and that of a neighbor. The husband moved to dismiss the complaint after his wife rested and, when the Court reserved decision on that motion, elected to rest himself offering no testimony or evidence whatsoever. Accordingly, balances of credibility had to be struck by the Court as the trier of fact from the testimony of the plaintiff's witnesses alone. The husband, Milton Berlin, failed to testify notwithstanding the fact that he was present during the entire trial in a position to give evidence supporting his contentions and to contradict evidence opposing his wife's version of the cause. Moreover, he reflected no reasonable explanation for his failure to testify. Accordingly, the Court is justified, in weighing the evidence of the case, in inferring that his testimony would not support his version of the case and permits the Court to draw the strongest inferences against him that the opposing evidence permits. Dowling v. Hastings, 211 N.Y. 199, 105 N.E. 194; Isquith v. Isquith, 229 App.Div. 555, 242 N.Y.S. 383; Meyer v. Mayo, 196 App.Div. 78, 187 N.Y.S. 346.

Based upon its findings of fact and the applicable law, this Court decides that Mrs. Berlin is entitled to the divorce she seeks. This decision is reached in view of the total evidence offered during the trial. The Court must A fortiori resolve the husband's motion to dismiss against him, since under such a motion the non-moving party is conceded to have offered truthful evidence and entitled to a view of the proof most favorable to her and to the benefit of any reasonable inferences to be drawn from the proof. Wessel v. Krop, 30 A.D.2d 764, 291 N.Y.S.2d 986; Carter v. Castle Elec. Contracting Co., 26 A.D.2d 83, 271 N.Y.S.2d 51; Ford v. Snook,205 App.Div. 194, 199 N.Y.S. 630, affd. 240 N.Y. 624, 148 N.E. 732.

The Court finds that there is a dead marital relationship interred in the Berlin domicile in Woodbury, New York. Based on the evidence, the Court finds that the husband has embarked and continued for an extensive period on a deliberately hostile and rude course of conduct specifically calculated to create unhappiness and suffering to the wife. His many actions, such as not speaking to her for weeks and months at a time, his contemptuous treatment of her in public, his refusal to eat with his family and in general to participate in family life, reflect the morbidity of the marital relationship. His conduct is aggravatingly offensive when viewed in the uncontradicted testimony that his wife is prone to nervous and emotional disturbance and has in fact undergone psychiatric treatment and medication over an extended period. The evidence is undisputed that the husband has refused to cohabit with the wife, and in fact, the only act of cohabitation between them within the past fourteen months immediately followed an attempted reconciliation after the wife had dropped a previous divorce action at her husband's request. The husband's motivation was that a sexual encounter would bolster his legal case in the event of continuance of divorce proceedings. The husband had the utter callousness to say to the wife that not only was he not interested in sex with her, but that she should go out and find a 'boyfriend' to satisfy her sexual appetites. Such a statement could well be the epitaph on the tombstone of a dead marriage.

His treatment of their adopted children, which too is not denied, leaves considerable doubt as to whether the best interests of the children are served by continuing in his residential proximity. The uncontradicted...