Underwood v. Underwood

Judgment unanimously modified in accordance with memorandum and, as modified, affirmed, without costs. Memorandum: Although we recognize that the marriage between the plaintiff and his wife, the defendant, is no longer a viable relationship, this factor standing alone is not a sufficient basis to prompt a court to grant a divorce decree on the ground of the wife’s alleged cruel and inhuman treatment of her husband. There must be sufficient probative evidence to convince a trier of fact that the wife has pursued a course of conduct which renders it improper and unsafe for the plaintiff to cohabit with her. We believe that the evidence before the trial court amply supports its findings of fact and see no reason to disturb its determination which denied plaintiff a divorce (Hessen v Hessen, 33 NY2d 406; cf. Newmann v Newmann, 55 AD2d 822). No award for support properly should have been made. In this seven-year marriage, without issue, the defendant wife who is 15 years younger than the 60-year-old plaintiff has earnings nearly equal to his, i.e., she earns in excess of $9,000 and he earns slightly over $13,000 annually. Further, the husband used a portion of his income during the marriage to make substantial improvements to the house which the wife owns and which she will continue to occupy (Domestic Relations Law, § 236). (Appeal from judgment of Monroe Supreme Court — divorce.) Present — Marsh, P. J., Moule, Cardamone, Dillon and Goldman, JJ.