Opinion
October 5, 1976
In an action for divorce, the defendant wife appeals from so much of a judgment of the Supreme Court, Nassau County, dated February 13, 1976, as, after a nonjury trial, (1) granted the plaintiff a divorce upon a finding of cruel and inhuman treatment, (2) fixed alimony, upon the "voluntary stipulation" of the plaintiff, at $150 a week, (3) awarded her a counsel fee of $6,500, and (4) dismissed her counterclaim, inter alia, for maintenance and support. Judgment modified, on the law, by (1) deleting the first decretal paragraph thereof, which granted the plaintiff a divorce, and (2) deleting the fourth decretal paragraph thereof, which awarded the defendant alimony, and so much of the eighth decretal paragraph as dismissed her counterclaim insofar as it sought support, and substituting therefor provisions (a) that the question of support for the defendant shall be decided by the Family Court and (b) transferring the matter to the Family Court for such determination. As so modified, judgment affirmed insofar as appealed from, with costs to the defendant. The facts are not affirmed. In our opinion, Special Term erred in granting a divorce to the husband based upon the ground of cruel and inhuman treatment. Even if the wife's conduct was not the result of her unstable mental condition, the husband would not be entitled to a divorce since the proof failed to establish that her conduct so endangered his physical or mental well-being as to render it unsafe or improper for him to cohabit with her (see Domestic Relations Law, § 170, subd [1]). Hopkins, Acting P.J., Margett, Damiani, Shapiro and Titone, JJ., concur.