Opinion
May 11, 1990
Appeal from the Supreme Court, Monroe County, Mastrella, J.
Present — Dillon, P.J., Callahan, Denman, Balio and Lowery, JJ.
Judgment unanimously modified on the law, and as modified affirmed with costs to defendant, in accordance with the following memorandum: The trial court erred in granting plaintiff a divorce on the ground of cruel and inhuman treatment. In a marriage of long duration, such as this one, a high degree of proof is required 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; Green v. Green, 127 A.D.2d 983). Plaintiff testified that there were six occasions between 1982 and 1985 when the parties argued and defendant used obscene and vulgar language. On one occasion, defendant pounded plaintiff's chest and grabbed his genitals. Plaintiff testified that, as a result of such conduct, he was upset and embarrassed, his ulcer was irritated, and his work performance was adversely affected. Defendant denied the allegations of fault.
The record does not establish a pattern of physical violence or other conduct sufficient to affect plaintiff's health or wellbeing and to render it unsafe or improper to cohabit with defendant (Domestic Relations Law § 170). At best, the record discloses strained relations and is insufficient to sustain a divorce based on cruel and inhuman treatment (see, Green v Green, 127 A.D.2d 983, supra; Kleindinst v. Kleindinst, 116 A.D.2d 988). Moreover, plaintiff presented no medical proof to establish that his health was adversely affected (see, Warguleski v Warguleski, 79 A.D.2d 1107; Gemayel v. Gemayel, 63 A.D.2d 831). Since the divorce should not have been granted, that portion of the judgment that directed the distribution of the marital property must be vacated (Domestic Relations Law § 236 [B] [5] [a]). Also, there is no necessity under the circumstances to grant defendant exclusive possession of the marital residence and that part of the judgment is vacated as well. Finally, we see no need to disturb the court's award of child support, spousal maintenance, and counsel fees.