Johnson v. Johnson

¶1— In a matrimonial action, defendant wife appeals from a judgment of the Supreme Court, Dutchess County (Buell, J.), dated January 3, 1983, which, inter alia, granted plaintiff husband a divorce on the ground of cruel and inhuman *821treatment. 11 Judgment reversed, on the law, with costs, and complaint dismissed. U Plaintiff’s allegations that defendant was frequently absent from the marital home during the last year of the marriage, and had assaulted him on two occasions, do not entitle him to a divorce on the ground of cruel and inhuman treatment where there was no evidence that the complained of course of conduct “so endanger[ed] the physical or mental well being of the plaintiff as render[ed] it unsafe or improper” for him to continue to cohabit with defendant (Domestic Relations Law, § 170, subd [1]; Sirote v Sirote, 54 AD2d 694; De Felice v De Felice, 92 AD2d 1044, 1045). Where the marriage is of long duration, the party seeking the divorce will be held to a high degree of proof (see Hessen v Hessen, 33 NY2d 406; Phillips v Phillips, 70 AD2d 30, 35-36). In this case, the parties were married 29 years, and there was no proof that defendant’s actions affected plaintiff in any deleterious way. Accordingly, the complaint should be dismissed. ¶ Titone, J. P., Gibbons, Thompson and Boyers, JJ., concur.