Rios v. Rios

• Decision Date: 18 June 1970
• Citation: 311 N.Y.S.2d 664,34 A.D.2d 325
• Parties: Tomas RIOS, Plaintiff-Respondent, v. Isabel Valentine RIOS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 664

311 N.Y.S.2d 664

34 A.D.2d 325

Tomas RIOS, Plaintiff-Respondent, v. Isabel Valentine RIOS, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

June 18, 1970.

Kalman Finkel, New York City, of counsel (Diana D. DuBroff, New York City, on the brief) for appellant.

Frederick J. Miller, Port Chester, of counsel (Samuel Friedlander, New York City, on the brief) for respondent.

Before McGIVERN, J.P., and MARKEWICH, McNALLY, and TILZER, JJ.

McNALLY, Justice.

In this action for divorce, the defendant-wife appeals from a judgment which granted plaintiff-husband a divorce pursuant to Domestic Relations Law § 170 subd. 1, as amended.

Section 170 of the Domestic Relations Law reads as follows:

'An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds:

'(1) 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. * * *'

Prior to 1967 a divorce could only be obtained on the ground of adultery. In 1967 the legislature added four new grounds for divorce, one of which is quoted above. This ground for divorce parallels § 200(1) of the Domestic Relations Law which established the same ground for a separation.

The finding by the trial court that the husband was subjected to such inhuman treatment by the defendant as to endanger his physical or mental well-being and to render it unsafe for him to cohabit with the defendant is not supported by the record. Plaintiff-husband, age 28, and defendant-wife, age 37, were married in 1957. The wife had been married before and had a 15 year old son by the previous marriage. The parties had one child, a daughter, 10 years of age at the time of trial. During the period of the marriage there were four separations and three reconciliations with periods of absence ranging from four to eight months covering the period from 1961 to 1967. Only one alleged act of violence was testified to. This occurred at the time of the first separation in 1961. Plaintiff was engaged in conversation with friends in the kitchen of the home. Their daughter created a scene and began to cry. Plaintiff told her to be quiet. Defendant then came into the kitchen, struck plaintiff and told him to get out of the house.

The law is well settled in this State that in order to obtain a separation on the ground of cruel and inhuman treatment, the plaintiff must either establish a pattern of actual physical violence or if actual violence is not involved, the conduct must be such as seriously affects the health of the spouse and threatens to impair it and renders it unsafe to cohabit. The measure of proof to sustain a divorce on the ground of cruel and inhuman treatment is no less than that required for a separation. Pierone v. Pierone, 57 Misc.2d 516, 293 N.Y.S.2d 256. The record here does not evidence any such proof.

It has been held that conduct may produce such mental pain as to be even more cruel and inhuman than if physical pain had been inflicted. The conduct, however, must be of such a character as to seriously affect the health of the party seeking the decree. Cruelty implies wantonness or the intent to inflict suffering or conduct of such character as to seriously affect or impair the health of a spouse so as to render it unsafe or improper to cohabit with the defendant. Occasional strife, lack of domestic harmony, frequent quarrels between husband and wife and incompatibility furnish no grounds for a decree. Avdoyan v. Avdoyan, 265 App.Div. 763, 40 N.Y.S.2d 665; Traylor v. Traylor, 3 A.D.2d 727, 159 N.Y.S.2d 818. Plaintiff failed to show that his physical or mental condition was in any way affected by appellant's conduct. Nor did he offer any evidence which would even remotely suggest that it was unsafe to cohabit.

In Smith v. Smith, 273 N.Y. 380, 383, 7 N.E.2d 272, 274, our Court of Appeals stated the rule as follows: 'Otherwise, giving plaintiff the advantage of every favorable inference that can possibly be drawn from the testimony, this record contains nothing further than that there were more or less frequent quarrels between the parties and incompatibility. That furnishes no ground for a decree of separation in this State.' Pearson v. Pearson, 230 N.Y. 141, 129 N.E. 349; Morris v. Morris, 260 A.D. 6, 20 N.Y.S.2d 782; Greene v. Greene, 244 A.D. 219, 278 N.Y.S. 954; Donohue v. Donohue, 180 A.D. 561, 167 N.Y.S. 715. In Pearson, supra, 230 N.Y. p. 148, 129 N.E. p. 351, the following language appears: 'The misery arising out of domestic quarrels does not justify a termination of the legal rights and duties of husband and wife. For such ills the patients must minister unto themselves; our courts of justice offer no cure.'

Accordingly, the judgment should be reversed on the law and the facts, without costs and without disbursements, and judgment directed in favor of defendant dismissing the complaint on the merits. Finding of fact No. 5 and conclusion of law No. 1 should be reversed and new findings and conclusions of law are made as indicated. Conclusion of law No. 3 should be modified to provide that the Family Court of the State of New York shall have concurrent jurisdiction with regard to the amount plaintiff will pay to the defendant as and for the support and maintenance of herself and of the infant daughter. Settle order on notice making new findings of fact, conclusions of law and providing for an amended judgment.

Judgment...