Opinion
51032/2009.
Decided February 10, 2011.
Jay S. Baum, Esquire, Staten Island, New York, Plaintiff.
Raoul Felder, Esquire, Defendant.
This is a motion by Defendant (hereinafter "Wife") seeking an Order: (a) pursuant to CPLR 3211(a)(1) and (7) of the Civil Practice Law and Rules, Rule 3016(c) of the Civil Practice Law and Rules, and Section 210 of the Domestic Relations Law dismissing the Verified Complaint. Defendant (hereinafter "Husband") opposes this motion.
Facts
The parties were married on October 18, 1980. At the time of commencement, the parties were married twenty nine years. There are two children of this marriage.
Procedural History
On March 12, 2010, a Preliminary Conference was held. The parties were unable to resolve grounds, custody, child support, equitable distribution and maintenance. On October 5, 2010, the parties resolved the issue of custody of the only minor child of this marriage, with a Final Order of Joint Legal and Physical Custody. The parties further agreed that they would share equal parenting time.
On April 6, 2010, Wife filed a Cross Motion seeking to dismiss Husband's Verified Complaint (hereinafter "Original Complaint"). The Original Complaint sought a divorce solely on the ground of cruel and inhuman treatment. Wife filed an Answer to the Original Complaint asserting general denials. Wife did not assert any counterclaims for grounds for divorce. On June 9, 2010, Wife agreed to withdraw her motion to dismiss without prejudice. On June 7, 2010, Husband filed an Amended Verified Complaint (hereinafter "Amended Complaint") seeking a divorce on the ground of cruel and inhuman treatment. On July 13, 2010, Wife moved to dismiss the Amended Complaint.
Wife agreed to accept an amended complaint from Husband subject to her ability to file another motion to dismiss.
A plaintiff seeking a divorce on the ground of cruel and inhuman treatment must allege a course of conduct that is harmful to the physical or mental health of the plaintiff and makes cohabitation either unsafe or improper. See DRL § 170(1). In this regard, Husband alleges, among other things, in his Amended Complaint, that from September 2008 through April 2010:
Wife would bang on his bedroom door and threaten to kill him; Wife in front of the parties' children and without provocation uncontrollably raged at Husband threatening to destroy his career and those close to him; Wife would make telephone calls to relatives, friends of family and the parties' children accusing Husband of "sleeping around"; Wife communicated with various people by email, telephone and/or mail accusing Husband of being a "sex addict," "victimizing women" and of having a sexually transmitted disease; when Husband left the marital home to run errands or pick up the children, Wife would continuously call Husband on his cell phone demanding to know where he was and what he was doing, and regardless of his response, would accuse him of lying; Wife forced the parties' children to read a sixteen-page letter addressed to the child's lawyer containing graphic sexual material about Husband; Wife accused Husband of having a sexually transmitted disease; Wife made it impossible for Husband to have sexual relations with her, because she did not bathe for days at a time; Wife would tell the parties' children that Husband refused to have sexual relations with her and on occasion added, "but he wants to do it with his prostitutes"; an order of protection was issued against Wife on February 5, 2010 restricting Wife from contacting Husband's business, thereafter, on February 9, 2010 Wife was taken into custody by the New York City Police Department; Wife without Husband's permission, would rifle through Husband's personal effects including, but not limited to, his wallet, automobile, pockets, clothing, briefcase, etc., and as a result of what was contained there, Wife would harass and disturb Husband, demanding to know the particulars of the information contained therein while Husband was awake or sleeping, or she would do so by telephone; Wife without Husband's permission or consent, secretly accessed pharmaceutical records pretending she was Husband and shared the information with members of Wife's family, the parties' children and members of Husband's family; at a joint therapy session with Dr. William Walsh, Wife lost control of herself screaming, shouting and cursing and as a result, the parties were required to leave by a back door.
Wife argues that Husband's allegations constitute only a ten month time period of events in this twenty nine year marriage. Wife alleges that the time period alleged in the Amended Complaint was very significant in the history of the parties' marriage. Wife alleges that, on or about August 17, 2008, she found a love letter written to Husband by a woman with whom Husband had a sexual relationship. Wife alleges she was extremely distraught when she discovered the letter and confronted Husband. According to Wife, Husband did not deny the existence of the adulterous relationship and said "You think I want your forgiveness I want a divorce." Husband moved out of the marital home on or about July 12, 2009 leaving behind Wife and the children.
Wife denies many of the allegations alleged by Husband. She also claims that certain actions on her part were justified by her discovery of Husband's extramarital affair. Wife argues that Husband seeks a divorce because he has found happiness with another woman and not because of any cruel and inhuman treatment by her.
Applicable Law
In determining a motion to dismiss for failure to state a cause of action, the allegations in the complaint must be accepted as true. See Steinberger v. Steinberger , 248 AD2d 706 (2d Dept. 1998). The Court "must examine the four corners of the complaint, and give the plaintiff the benefit of every possible favorable inference." See Hirschhorn v. Hirschhorn , 194 AD2d 768 (2d Dept. 1993). The Court is permitted broad discretion in balancing factors in each case in determining whether the cause of action for divorce based on cruel and inhuman treatment has been adequately pled. See Gianis v. Gianis , 67 AD3d 963 (2d Dept. 2009).
Applying this standard to this case, and after accepting the non movant Husband's allegations as true, the Court finds that the Amended Complaint states a cause of action for divorce on the ground of cruel and inhuman treatment. Gianis v. Gianis , 67 AD3d 963 (2d Dept. 2009). Specifically, the allegations detailed in the Amended Complaint establishes a course of conduct that, if proven, would endanger Husband's physical and mental well being such that continued cohabitation would be unsafe or improper. Gianis v. Gianis , 67 AD3d 963 (2d Dept. 2009); Steinberger v. Steinberger , 248 AD2d 706 (2d Dept. 1998). The Court further finds that the allegations are sufficiently pled to advise Wife of the allegations against her and enable her to prepare a defense. See Nolletti v. Nolletti , 2 AD3d 421 (2d Dept. 2003); Kapchan v. Kapchan , 104 AD2d 358 (2d Dept. 1984).
Wife argues that the Amended Complaint should be dismissed as Husband has failed to meet the very high burden of proof of cruel and inhuman treatment in a long term marriage. Wife cites Brady v. Brady , 64 NY2d 339 (1985), and several other cases where the Plaintiff was denied a divorce on the ground of cruel and inhuman treatment. However, all of the cases were decided after a full trial. Moreover, the dismissal cases cited by Wife are factually dissimilar to the allegations alleged by Husband here. Miller v. Miller , 104 AD2d 1032 (2d Dept. 1984) (plaintiff failed to allege actual physical violence or conduct which seriously affects the health of the spouse and threatens to impair it, rendering it unsafe to cohabit); Horvath v. Horvath , 177 AD2d 617 (2d Dept. 1991) (the instances alleged in the 45 year marriage show only strained relations and embarrassment rather than a course of conduct that would render it unsafe or improper to cohabit). Here, Husband alleges that, from January 2009 through June 2009, Wife would bang on his bedroom door and threaten to kill him. Furthermore, Husband alleges that Wife's conduct has caused him physical and mental ailments for which he has sought medical attention and psychotherapy treatment. The Amended Complaint further alleges that Husband sought and obtained a temporary order of protection on February 5, 2010 against Wife prohibiting her from, among other activities, contacting Husband's business associates. These allegations, taken as true as required on this motion, are sufficient to allow the Amended Complaint to proceed to trial. For these reasons, this motion to dismiss the Amended Complaint is denied.
Palin v. Palin , 213 AD2d 707 (2d Dept. 1995); Justin v. Justin , 47 AD3d 615 (2d Dept. 2008); Cauthers v. Cauthers , 32 AD3d 880 (2d Dept. 2006); Ehrman v. Ehrman , 67 AD3d 955 (2d Dept. 2009); Kaplan v. Kaplan , 46 AD3d 628 (2d Dept. 2007); Brody v. Brody , 72 AD2d 802 (2d Dept. 1979); Bernholc v. Bernstein , 72 AD3d 625 (2010).
This constitutes the Decision and Order of the Court.