Echevarria v. Echevarria

• Citation: 386 N.Y.S.2d 653,353 N.E.2d 565,40 N.Y.2d 262
• Parties: , 353 N.E.2d 565 Lisa ECHEVARRIA, Appellant, v. Aurelio ECHEVARRIA, Respondent.
• Decision Date: 08 July 1976
• Court: New York Court of Appeals

Page 653

386 N.Y.S.2d 653

40 N.Y.2d 262, 353 N.E.2d 565

Lisa ECHEVARRIA, Appellant, v. Aurelio ECHEVARRIA, Respondent.

Court of Appeals of New York.

July 8, 1976.

Marjory D. Fields and John C. Gray, Jr., Brooklyn, for appellant.

No appearance for respondent.

GABRIELLI, Judge.

In this matrimonial action, plaintiff wife sued for divorce on grounds of 'cruel and inhuman treatment' (Domestic Relations Law, § 170, subd. (1)), ^* alleging that, within the four-year period of their marriage, her husband had beaten her twice by repeatedly striking her with his hands and causing bruises and black and blue marks on her face, head and body. The first alleged beating occurred just after the parties were married in 1970. Following the second beating in 1974, plaintiff obtained an order of protection from the Family Court at which time she was compelled to move out of the marital residence for fear of her life. Plaintiff testified that her husband frightened and harassed her and made her 'very nervous' to the point of rendering her unable to work. At the conclusion of plaintiff's case, the Trial Judge dismissed the complaint, holding that, as a matter of law, two beatings within a four-year period were insufficient grounds for a judgment of divorce. He noted that the wife might have grounds for divorce based upon 'constructive abandonment' (Domestic Relations Law, § 170, subd. (2)) but that the action would not accrue until a year of separation had elapsed. We conclude that the Trial Judge erred in dismissing the complaint as a matter of law.

This case involves more than a single act of violence resulting from momentary anger, 'transient discord' or mere incompatibility (see Johnson v. Johnson, 43 A.D.2d 842, 351 N.Y.S.2d 347, affd., 36 N.Y.2d 667, 365 N.Y.S.2d 851, 325 N.E.2d 167; Rios v. Rios, 34 A.D.2d 325, 311 N.Y.S.2d 664, affd., 29 N.Y.2d 840, 327 N.Y.S.2d 853, 277 N.E.2d 786; Hessen v. Hessen, 33 N.Y.2d 406, 410--411, 353 N.Y.S.2d 421, 425, 308 N.E.2d 891, 894; Single Act as Basis of Divorce or Separation on Grounds of Cruelty, Ann., 7 A.L.R.3d 761). Rather, there is testimony as to two fierce beatings within the brief four-year period of this marriage (cf. Hessen v. Hessen, supra, pp. 411--412, 353 N.Y.S.2d 421, 426, 308 N.E.2d 891, 894), the last of such severity that the Family Court deemed it necessary to grant the wife an order of protection. Even one beating constitutes more than a single act of violence when it is composed of repeated and prolonged acts of physical abuse. Despite his dismissal of the complaint, the Trial Judge found that the wife 'had to flee the (marital) premises for her life and obtain an order of protection.' As we noted in Hessen v. Hessen (supra, p. 411, 353 N.Y.S.2d p. 427, 308 N.E.2d p. 895), '(o)bjective proof of physical or mental injury to the complainant spouse would certainly be a decisive basis for granting the divorce.' The plaintiff in this case has made out a prima facie case that it would be 'unsafe or improper' for her to cohabit with defendant (Johnson v. Johnson, supra; Hessen v. Hessen, supra, pp. 409--410, 353 N.Y.S.2d 421, 425, 308 N.E.2d 891, 894; Barnier v. Barnier, 43 A.D.2d 568, 349 N.Y.S.2d 113). She testified that she was frightened and harassed by defendant who made her ...