Brady v. Brady

• Decision Date: 14 February 1985
• Citation: 64 N.Y.2d 339,476 N.E.2d 290,486 N.Y.S.2d 891
• Parties: , 476 N.E.2d 290 Edward BRADY, Appellant, v. Dorothy BRADY, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 891

486 N.Y.S.2d 891

64 N.Y.2d 339, 476 N.E.2d 290

Edward BRADY, Appellant, v. Dorothy BRADY, Respondent.

Court of Appeals of New York.

Feb. 14, 1985.

Dale B. Weiss, Garden City, for appellant.

Herman Yellon, Mineola, for respondent.

OPINION OF THE COURT

WACHTLER, Chief Judge.

Plaintiff Edward Brady has brought this matrimonial action against his wife, defendant Dorothy Brady, seeking a divorce and sale of the marital residence. The complaint alleged, as grounds for obtaining a divorce, that Mrs. Brady committed acts constituting cruel and inhuman treatment and constructively abandoned plaintiff by refusing to engage in sexual relations with him (see, Domestic Relations Law § 170). The question presented is what conduct constitutes cruel and inhuman treatment in a "long-term" marriage so as to give rise to a cause of action for divorce. More specifically, we must determine whether the principles set forth in Hessen v. Hessen, 33 N.Y.2d 406, 353 N.Y.S.2d 421, 308 N.E.2d 891, with respect to the necessary showing of cruel and inhuman treatment in a long-term marriage, are still to be followed.

The parties were married in 1956 and have four children, who were born between 1957 and 1966. From May 1977 to September 1979, Mr. Brady lived in the marital residence on an infrequent basis and since September or October 1979 he has not resided there at all. Mr. Brady commenced this action for a divorce in 1981. His verified complaint set forth two causes of action, one for constructive abandonment and the other for cruel and inhuman treatment. Among the allegations relating to the claim of cruel and inhuman treatment were that Mrs. Brady, during 1976, struck him with objects, including a lamp and a vase, threatened him with a knife, attempted to choke him and frequently berated him. Her answer denied all of these allegations and set forth counterclaims for maintenance and child support, but not for a judgment of divorce.

At trial, plaintiff, with minimal corroboration, testified to the allegations in the complaint. Mrs. Brady, supported in much of her testimony by one of the Brady children, again denied the charges of constructive abandonment and cruel and inhuman treatment, and stated that she did not seek a divorce. The trial court, although apparently rejecting most of plaintiff's specific claims of cruel and inhuman treatment, granted him a divorce on that cause of action. The court termed the marriage a "dead" one, and concluded that based on the marital breakdown and the separation of the parties further cohabitation was improper. The court also awarded custody of the remaining infant child to Mrs. Brady, granted her exclusive use and occupancy of the marital residence until the emancipation of this child, at which time the residence would be sold, provided for the distribution of other marital property, and ordered plaintiff to make payments to her for maintenance and child support.

The Appellate Division, 101 A.D.2d 797, 475 N.Y.S.2d 470, unanimously modified the trial court judgment. The court found that plaintiff had not made out a cause of action for divorce based on cruel and inhuman treatment, and thus deleted the portions of the judgment granting plaintiff a divorce and ordering the sale of the marital residence upon the emancipation of the remaining infant child. We now affirm.

Prior to the 1966 amendments to the Domestic Relations Law, the sole ground for divorce in this State was adultery. The 1966 reforms added five additional grounds, one of which was, and remains, "The cruel and inhuman treatment of the plaintiff by the defendant 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" (Domestic Relations Law § 170[1], added by L.1966, ch. 254).

In Hessen v. Hessen, 33 N.Y.2d 406, 353 N.Y.S.2d 421, 308 N.E.2d 891, supra, we held that a plaintiff seeking a divorce under the cruel and inhuman treatment subdivision must show serious misconduct, and not mere incompatibility. Subsequent cases have established that a plaintiff, relying on this subdivision, must generally show a course of conduct by the defendant spouse which is harmful to the physical or mental health of the plaintiff and makes cohabitation unsafe or improper (Forcucci v. Forcucci, 96 A.D.2d 751, 465 N.Y.S.2d 320; Kennedy v. Kennedy, 91 A.D.2d 1200, 459 N.Y.S.2d 188; Warguleski v. Warguleski, 79 A.D.2d 1107, 435 N.Y.S.2d 857). The subdivision requires a finding of fault and thus a showing of irreconcilable or irremediable differences is insufficient by itself (De Felice v. De Felice, 92 A.D.2d 1044, 461 N.Y.S.2d 551; Warguleski v. Warguleski, supra; Filippi v. Filippi, 53 A.D.2d 658, 384 N.Y.S.2d 1010).

In Hessen, we also noted that the determination of whether conduct constituted cruel and inhuman treatment would depend, in part, on the length of the parties' marriage, because what might be considered substantial misconduct in the context of a marriage of short duration, might only be "transient discord" in that of a long-term marriage (Hessen v. Hessen, 33 N.Y.2d 406, 411, 353 N.Y.S.2d 421, 308 N.E.2d 891, supra). Thus, courts in this State have required a high degree of proof of cruel and inhuman treatment where there is a marriage of long duration and an isolated act of mistreatment will rarely suffice (see, Wilkins v. Wilkins, 91 A.D.2d 771, 458 N.Y.S.2d 3; Wald v. Wald, 70 A.D.2d 936, 417 N.Y.S.2d 519; Filippi v. Filippi, 53 A.D.2d 658, 384 N.Y.S.2d 1010, supra).

At the time the Hessen case was decided, only a wife was able to collect alimony following a divorce. If, however, her "misconduct" entitled the husband to obtain a divorce on a ground such as cruel and inhuman treatment, she was precluded under Domestic Relations Law § 236 from receiving alimony or exclusive possession of the marital home (Hessen v. Hessen, supra, 33 N.Y.2d, pp. 410-411, 353 N.Y.S.2d 421, 308 N.E.2d 891; Barry v. Barry, 93 A.D.2d 797, 460 N.Y.S.2d 601). ¹ Thus, the effect of granting a husband a divorce on the ground of his wife's cruel and inhuman treatment was a potential financial catastrophe to the wife. In Hessen, we noted that this negative effect could be particularly harmful where the defendant, as was the case therein, was a "dependent older woman" (Hessen v. Hessen, supra, 33 N.Y.2d, p. 412, 353 N.Y.S.2d 421, 308 N.E.2d 891), and this fact served as one of the bases for requiring a higher degree of proof of cruel and inhuman treatment in a long-term marriage.

In 1980, the Equitable Distribution Law was enacted and Domestic Relations Law § 236 was amended to provide, in part, that either spouse could be required to pay alimony ("mai...