Cruel and Inhuman Treatment
In the mid-1960s, the New York Divorce Reform Act of 1966 modernized the New York divorce law. Before that time, the only ground for divorce was adultery. Under the new law, divorce could be granted for several reasons, but the most popular was “cruel and inhuman treatment”. Unlike the prior law which required an impartial witness to the adultery, cruel and inhuman treatment could be proven by the plaintiff’s own uncorroborated testimony. [There was one Troy attorney whose wife, remarkedly, was frequently a witness to the adultery committed by the spouse of her husband's client in uncontested cases.] Although the procedure has since been liberalized to permit the plaintiff's testimony in an uncontested divorce to be submitted to the Court in affidavit form, the earlier procedure required that the plaintiff be questioned under oath before the justice conducting a Part II Special Term. A justice might hear from five to twenty uncontested divorces on a Friday morning in Rensselaer County. The number usually varied depending upon the plaintiff’s attorney’s assessment of the quality of testimony that the attorney could elicit from the client and the reputation of the judge in matrimonial matters. A very liberal judge would have a full calendar, while those considered to have a poor temperament would breeze through their short calendar, sometimes denying a divorce even when there was no opposition.
Sometimes there would be a last-minute substitution of the Part II judge, which would produce a flurry of reaction by the divorce bar. If a judge reputed to be tough on divorces was substituted for an assigned liberal judge, many of the attorneys would yell “Next special term at Troy” to the clerk when the calendar was called, or “Adjourned to ________________” with a date and/or court in another county to which a liberal judge was assigned.
George Cobb became a New York Supreme Court judge in January 1969. He was a former County Attorney and County Judge in Greene County, just south of Albany, in the same Third Judicial District as Rensselaer County. Supreme Court justices were elected district-wide, and rotated throughout the seven counties of the district, usually monthly. They held trial terms, but also “special terms” where motions in civil cases were heard in Part I, and uncontested divorces in Part II. Albany County had the most civil litigation of any county in the judicial district and had a special term every Friday. Rensselaer County only had two special terms a month, as did other smaller counties in the district.
I presented an uncontested cruel and inhuman treatment divorce to Judge Cobb in early 1969 at the first Part II Special Term that he presided over in Rensselaer County after his election to the fourteen-year term. He was an unknown quantity to matrimonial lawyers, but he was a gentleman, and I confidently brought the application of “Carmella” before him for the required testimony. Carmella was an attractive young lady of Italian ethnic background from Green Island, a small village across the Hudson River from Troy. Carmella was about twenty years old and had been married for less than a year to her high school boyfriend. Although they had known each other for several years, their romance soured after marriage for a variety of reasons, not the least of which was her husband’s drinking and abusive behavior. Fortunately, there were no children, and Carmella was employed and just wanted out of the marriage, so there were no support issues.
When the case was called, I brought Carmella into the judge’s chambers behind the main courtroom. It was an informal setting with the judge, the court stenographer, Carmella, and me sitting around a table. Judge Cobb sat at the head of the table with the stenographer to his right, and Carmella to his left. I sat next to Carmella, who was very nervous.
After I introduced Carmella to Judge Cobb, she was administered an oath by the stenographer. While Judge Cobb read the divorce complaint and my affidavit attesting to the regularity of the proceeding and the defendant’s default in contesting the divorce, I asked threshold questions to establish her age, residence, date of marriage, name, age, and residence of her husband, whether there were children of the marriage, her employment status, etc.
New York law required that the plaintiff prove that the spouse’s cruel and inhuman treatment of the plaintiff so endangered the physical and mental well-being of the plaintiff to render it unsafe and improper for the plaintiff to cohabit with the defendant. Mental cruelty was not sufficient; there had to be a showing of physical danger or harm.
Judge Cobb listened attentively as Carmella tearfully told how her former boyfriend, now husband, rarely took her out for dinner or a movie as they had done before marriage, but now left her home while he went bowling or to bars with his friends, and they argued over his behavior and lack of attention to her. Frequently, she said, the arguments became physical, and he sometimes struck her. Although this testimony would have been sufficient for most judges, Judge Cobb asked her whether she ever had been bruised. She replied that just a few days before her court appearance, she and her husband argued after he came home drunk. He threw one of her high-heeled shoes at her, and it struck her and bruised her, leaving a black and blue mark. Judge Cobb considered this for a moment, and then he asked to see the bruise. Carmella became very flustered, but finally stood up next to Judge Cobb and hoisted her skirt up to her waist. She pointed to a half dollar size fading black and blue mark that started in the crease between her right thigh and torso and disappeared beneath the pubic area of her modest underpants. I don’t recall whether Carmella or Judge Cobb blushed more, but Judge Cobb quickly looked away and said “Divorce granted”. I never knew Judge Cobb to ask to see physical evidence of abusive treatment after that case.
Sometimes lower court judges were assigned as “Acting Supreme Court Justices” for a particular term to relieve the burden of the elected Supreme Court justices. These lower court judges were frequently county-level Surrogate Court judges, whose courts handled probate matters and adoptions. Surrogate Court judges usually had a much lower caseload than other full-time judges. Although they were frequently assigned to act as Supreme Court justices to hear Part II divorces in their home counties, they sometimes were assigned to hear Part II divorce cases in an adjoining county. Rensselaer County’s Surrogate, Matthew M. Dunne, a liberal judge, was sometimes assigned to hear Part II divorce cases in Albany on the same day that Albany County’s Surrogate, John McCall, an intelligent judge but with little judicial temperament, was assigned to hear Part II divorce cases in Rensselaer County. The reason for this arrangement was strictly to benefit the judges themselves and the divorce attorneys in Albany County. The judges received an additional monetary allowance when they served outside of their home county, and the divorce attorneys in Albany County sometimes had the benefit of a liberal judge.
Judge McCall’s demeanor put off many matrimonial attorneys. He was outspoken. One morning, during a period of racial unrest in Albany during the 1960s, I was on the crowded Albany County Court House elevator. Judge McCall, a tall, elderly, white-haired Irishman, stepped into the elevator carrying his lunch in a brown paper bag. As the elevator rose, he said to no one in particular: “What are the niggers up to today?”
I frequently presented divorce cases for James Reilly, an attorney with whom I shared offices in Troy. Jim, a very devoted Roman Catholic, was uncomfortable handling divorces, and if his client was a plaintiff, I usually met with his client, reviewed the grounds for the divorce, and conducted a dry run of the testimony before the court date. One day Jim asked me to present the testimony for “Doug” a blue-collar worker in his mid-sixties, who was suing his wife for divorce on the grounds of cruel and inhuman treatment. I did not meet Doug until the morning of the hearing, however, and after speaking with him I told Jim that I didn’t think there was enough evidence to meet the burden of proof. Judge Dunne was the assigned judge, and since I had never known him to deny an uncontested divorce, we decided to proceed. However, when the matrimonial calendar was called, I learned that Judge Dunne and Judge McCall had switched assignments, and I found myself before Judge McCall.
The testimony went badly. Doug was very nervous and even had a difficult time testifying as to such minor matters as his date and place of marriage. My attempt to elicit testimony of cruel and inhuman treatment went nowhere. He talked only of arguments, which sometimes resulted in her calling him names and refusing to cook dinner. I felt that the case was lost, a view clearly shared by a scowling Judge McCall. The end of the testimony of cruel and inhuman treatment usually ended with a question to the plaintiff on the order of: “Doug, as a result of your wife’s conduct to which you have testified, do you feel that it is unsafe and improper for you to continue to cohabit with her?” I asked the question and he meekly answered in the affirmative. Judge McCall, obviously irritated, turned to Doug and snapped: “What the hell did she do to make you afraid of her?" Doug looked Judge McCall in the eye, and said: “Judge, she said that she was going to take the kitchen knife and cut my balls off while I was sleeping.” There was a silence, and then Judge McCall broke into a big grin and granted the divorce.
