Filippi v. Filippi

• Decision Date: 21 June 1976
• Citation: 53 A.D.2d 658,384 N.Y.S.2d 1010
• Parties: Josephine FILIPPI, Appellant, v. William J. FILIPPI, Respondent, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 1010

384 N.Y.S.2d 1010

53 A.D.2d 658

Josephine FILIPPI, Appellant, v. William J. FILIPPI, Respondent, et al., Defendants.

Supreme Court, Appellate Division, Second Department.

June 21, 1976.

Morton & Pomerantz, Great Neck (Burton D. Pomerantz, Great Neck, of counsel), for appellant.

Cline, Hallissey & Hausman, Garden City (John J. Hallissey, Garden City, of counsel), for respondent.

Before HOPKINS, Acting P.J., and MARTUSCELLO, MARGETT, RABIN and HAWKINS, JJ.

MEMORANDUM BY THE COURT.

In an action Inter alia for divorce, plaintiff appeals, as limited by her notice of appeal and brief, from so much of a judgment of the Supreme Court, Nassau County, dated September 2, 1975, as, after a nonjury trial, (1) dismissed the complaint, (2) adjudged that she has no right, title or interest in and to moneys (a) received by respondent from his employer's profit sharing trust or (b) deposited by respondent in certain banks, (3) vacated all liens and restraints initiated by her against certain bank accounts and (4) failed to award her ancillary relief in the form of support for herself and one minor child.

Judgment affirmed insofar as appealed from, without costs or disbursements.

In our opinion, the evidence adduced at the trial failed to establish a course of conduct by respondent against plaintiff which endangered her physical and mental well being and redered it unsafe or improper for her to cohabit with him (see Domestic Relations Law, § 170, subd. (1)). A marriage of long duration (24 years here) requires a high degree of proof to show that the conduct of the defendant so endangered the physical and mental well being of the plaintiff as rendered it unsafe or improper for the plaintiff to cohabit with the defendant (Johnson v. Johnson, 36 N.Y.2d 667, 365 N.Y.S.2d 851, 325 N.E.2d 167). The statutory provision establishing cruel and inhuman treatment as a ground for divorce does not authorize dissolution of a marriage for irreconciable differences, incompatibility or irremedial differences. Nor is it a ground for divorce that two parties acquiesce in a sex-limited relationship (see Hammer v. Hammer, 34 N.Y.2d 545, 354 N.Y.S.2d 105, 309 N.E.2d 874). The course of conduct alleged by plaintiff to constitute cruel and inhuman treatment related to mutual unwillingness to engage in sex, and riotous quarrels among plaintiff, respondent and their daughters. At no time did plaintiff seek or receive medical attention subsequent to these quarrels and at no time was she put in fear for her safety. None of the incidents set forth approach the character of actual violence; nor do they establish a pattern of cruelty (see Berlin v. Berlin, 64 Misc.2d 352, 314 N.Y.S.2d 911, mod. on other grounds, 36 A.D.2d 763, 321 N.Y.S.2d 511, mot....