Gray v. Gray

• Decision Date: 04 December 1997
• Citation: 245 A.D.2d 584,664 N.Y.S.2d 878
• Parties: , 1997 N.Y. Slip Op. 10,369 Ronald GRAY, Respondent, v. Patricia GRAY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 878

664 N.Y.S.2d 878

245 A.D.2d 584, 1997 N.Y. Slip Op. 10,369

Ronald GRAY, Respondent, v. Patricia GRAY, Appellant.

Supreme Court, Appellate Division Third Department.

Dec. 4, 1997.

Patricia A. Gray, Highland, in person.

Ronald Gray, Beacon, in person.

Before MIKOLL, J.P., and MERCURE, CREW, WHITE and YESAWICH, JJ.

CREW, Justice.

Appeal from a judgment of the Supreme Court (Torraca, J.) granting plaintiff a divorce, entered October 2, 1995 in Ulster County, upon a decision of the court.

Plaintiff commenced this action for divorce in October 1993 alleging cruel and inhuman treatment (see, Domestic Relations Law § 170[1] ). The parties were married in October 1986 and apparently have no children. Following a nonjury trial, at which plaintiff, defendant and the certified social worker with whom plaintiff had treated appeared and testified, Supreme Court granted plaintiff a divorce upon the stated ground. This appeal by defendant ensued.

We affirm. As the party seeking a divorce on the ground of cruel and inhuman treatment, plaintiff bore the burden of establishing by a preponderance of the credible evidence (see generally, Reutenauer v. Reutenauer, 229 A.D.2d 776, 777, 645 N.Y.S.2d 583) that "defendant's conduct so endangered his physical or mental well-being as to render it unsafe or improper for him to cohabit with her" (Sim v. Sim, 241 A.D.2d 660, 661, 659 N.Y.S.2d 574, 575). In this regard, Supreme Court is vested with broad discretion in determining whether the acts alleged constitute cruel and inhuman treatment (see, Gaudette v. Gaudette, 234 A.D.2d 619, 622, 650 N.Y.S.2d 880, appeal dismissed 89 N.Y.2d 1023, 657 N.Y.S.2d 594, 679 N.E.2d 1074) and, as the trier of fact, its decision on this issue will not be overturned lightly on appeal (see, Sim v. Sim, supra, at 661, 659 NYS2d at 575).

Based upon our review of the record as a whole, we cannot say that Supreme Court abused its discretion in determining that defendant's conduct indeed rose to the level of cruel and inhuman treatment. Although Supreme Court's decision does contain two factual errors, plaintiff's testimony, which Supreme Court plainly credited, regarding the marked change in defendant's religious beliefs and practices and her ensuing conduct toward plaintiff, his friends and his family, coupled with the testimony of the certified social worker as to the effect that continued cohabitation would be likely to have upon plaintiff, nonetheless is sufficient to sustain the...