WALCZAK v. WALCZAK, 206 A.D.2d 900 [4th Dept 1994]
614 N.Y.S.2d 835M
JEROME B. WALCZAK, Respondent, v. JANET G. WALCZAK, Appellant.
Appellate Division of the Supreme Court of New York, Fourth Department.
July 15, 1994
Appeal from the Supreme Court, Herkimer County, Tenney, J.
Judgment unanimously reversed on the law with costs, complaint
dismissed and matter remitted to Supreme Court for further
proceedings on the counterclaim in accordance with the following
Memorandum: We agree with the contention of defendant that
Supreme Court erred in granting plaintiff a divorce on the ground
of cruel and inhuman treatment. Plaintiff testified that, prior
to the parties' separation, defendant told him that she had lost
affection for him and that she no longer loved him, and that
those comments upset him. He further testified that, during the
last year before their separation, he and his wife had limited
communication, slept in separate bedrooms and had some arguments,
and that things were difficult. Plaintiff admitted, however,
that, during that period, the parties were able to talk to each
other in a civilized manner. No evidence was introduced of any
physical violence between the parties or of any obscene or vulgar
language by defendant. Additionally, no medical proof was presented to establish that defendant's
conduct adversely affected plaintiff's health (see, Warguleski v
Warguleski, 79 A.D.2d 1107; Gemayel v. Gemayel, 63 A.D.2d 831).
Because this marriage was of long duration, i.e., 25 years,
plaintiff's evidence, at best, disclosed strained relations and
is insufficient to meet the high degree of proof required in a
long-term marriage to establish cruel and inhuman treatment
(see, Brady v. Brady, 64 N.Y.2d 339, 345; Hessen v. Hessen,
33 N.Y.2d 406, 411-412; Marciano v. Marciano, 161 A.D.2d 1163, 1164,
lv denied 76 N.Y.2d 707; Green v. Green, 127 A.D.2d 983).
Consequently, the divorce was improperly granted, and the marital
property was not subject to equitable distribution (Domestic
Relations Law § 236 [B] [5] [a]). Because the record indicates
that the court also granted the counterclaim of defendant for a
separation from bed and board, we remit the matter to another
Justice for determination of the economic issues arising from the
granting of that counterclaim.
Present — Green, J.P., Lawton, Fallon, Doerr and Boehm, JJ.