Opinion
July 21, 1997
Appeal from the Supreme Court, Kings County (Jackson, J.).
Ordered that the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
The parties were married in June 1988. The plaintiff left the marital residence in March 1992 and commenced this action in March 1994 seeking a divorce on the ground of cruel and inhuman treatment, and equitable distribution of the marital property.
A plaintiff seeking a divorce pursuant to Domestic Relations Law § 170 (1) "must show serious misconduct, and not mere incompatibility" (Brady v. Brady, 64 N.Y.2d 339, 343). The conduct complained of must constitute calculated cruelty so as to render cohabitation unsafe or improper (see, Martin v. Martin, 224 A.D.2d 597, 598; Hirschhorn v. Hirschhorn, 194 A.D.2d 768). Here, the plaintiff's testimony regarding the defendant's abusive conduct towards her when he returned home late in the evening, the defendant forcing her to flee the marital residence on several occasions, and the resulting anxiety and depression she suffered, sufficiently established a reasonable apprehension of violence or conduct of such a character that seriously affected her health and threatened to permanently impair it (cf., Rios v Rios, 34 A.D.2d 325, and 29 N.Y.2d 840; Meyn v. Meyn, 119 A.D.2d 644).
The court's distribution of 80% of the marital property to the defendant and 20% to the plaintiff was proper. Moreover, the court's award to the plaintiff of only a portion of her counsel fees was not an improvident exercise of discretion (see, Domestic Relations Law § 237 [a]; DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879, 881).
The parties' remaining contentions are without merit.
Miller, J. P., Friedmann, Krausman and Florio, JJ., concur.