Siu Nam Wong Pun v. Che Kwok Pun , 921 N.Y.2d 27 ( 2011 )

Plaintiff testified that during the marriage, defendant regularly lost his temper and yelled at her, verbally abused and demeaned her, and made disparaging remarks in response to her cancer diagnosis. She further testified that several years before she commenced this action, defendant choked her. In addition, she testified that he frequently yelled at her insisting that the family had to listen to him because he was the master of the household. Plaintiff recounted defendant’s threat to kill her if she sought a divorce, and explained that she ultimately moved out because she feared defendant and was concerned for her safety. This testimony, portions of which were corroborated by the testimony of the parties’ adult son, was sufficient to support the finding of cruel and inhuman treatment (Bartha v Bartha, 15 AD3d 111, 114-115 [2005]; Stoothoff v Stoothoff, 226 AD2d 209 [1996]).

Although plaintiff periodically returned to the marital residence after she moved out, she credibly explained that she did so to cook and clean the residence for her sons, who resided there. The lower court was not persuaded by defendant’s claim that this behavior undermined plaintiffs contention that it was unsafe and improper for her to cohabit with defendant, and we agree with that determination. Moreover, plaintiff testified that when she did return on occasion, defendant scolded and berated her.

In light of our decision to uphold the divorce on the ground of cruel and inhuman treatment, we need not address whether the court’s decision to grant a divorce on the additional ground of constructive abandonment was warranted. Concur — Mazzarelli, J.P, Andrias, Moskowitz, Richter and Manzanet-Daniels, JJ.