Brunhuber v. Brunhuber

Order unanimously reversed, on the law, and facts, without costs, and matter remitted to Supreme Court, Monroe County, Trial Term, White, J. for further proceedings in accordance with the following memorandum: In this uncontested action for divorce on the ground of cruel and inhuman treatment, there was some proof that the defendant rejected plaintiff; belittled her constantly; made her feel inadequate; failed to support her and her young children financially; refused to show her normal love and affection and, in fact, lived in a two-bedroom home with plaintiff’s sister-in-law and her two children for a period of two months during the marriage. The record is lacking, however, in detailed evidence on these points and also on the question of whether and how defendant’s alleged cruelty made it unsafe or improper for plaintiff to continue to reside with him as his wife. It is apparent, however, that the trial court’s attitude—from its indication before the plaintiff had finished her case that it was dissatisfied with the proof and intended to deny the divorce—made further elicitation of details seem futile. Counsel’s request for leave to file a memorandum of law was denied and it does not appear, therefore, that the court considered our decisions in Armstrong v Armstrong (47 AD2d 800); Good v Good (37 AD2d 682); George v George (34 AD2d 888); or those in Hessen v Hessen (33 NY2d 406); and see Ucci v Ucci (50 AD2d 665). The case is remitted for further proof and the granting of a decree if warranted by the evidence in light of Armstrong v Armstrong (supra) and the other authorities cited. (Appeal from order of [1016] Monroe Supreme Court—divorce.) Present—Cardamone, J. P., Simons, Hancock, Denman and Witmer, JJ.