Freas v. Freas

Peters, J. Appeal from a judgment of the Supreme Court (O’Shea, J.), entered December 23, 2004 in Chemung County, granting plaintiff a divorce and ordering, inter alia, maintenance and counsel fees to plaintiff, upon a decision of the court. The parties were married in October 1972 and have three emancipated children. Despite some initial difficulties, plaintiff described the parties’ relationship as good until early 2000, at which time plaintiff temporarily moved out of the marital residence. The impetus for this move was defendant’s alleged rela [1070] tionship with a female coworker. The marital relationship apparently continued to deteriorate, prompting plaintiff to permanently move out of the marital residence in July 2003. Plaintiff commenced this action for divorce in September 2003 upon the ground of cruel and inhuman treatment. Following joinder of issue, Supreme Court conducted a brief nonjury trial, consisting of testimony from plaintiff, defendant and his alleged paramour. Although defendant moved to dismiss at the close of plaintiff’s case based upon insufficient proof, Supreme Court ultimately granted plaintiff the requested divorce and awarded her, among other things, maintenance and counsel fees. This appeal by defendant ensued. It is by now well settled that Supreme Court is vested with broad discretion in determining whether a spouse’s conduct constitutes cruel and inhuman treatment (see Xiaokang Xu v Xiaoling Shirley He, 24 AD3d 862, 863 [2005], lv denied 6 NY3d 710 [2006]; Conrad v Conrad, 16 AD3d 794, 795 [2005]; Delliveneri v Delliveneri, 274 AD2d 798, 798 [2000], lv denied 95 NY2d 767 [2000]). As the trier of fact, it is in the best position to gauge the demeanor and credibility of witnesses, warranting its findings of credibility to be entitled to great deference (see Shortis v Shortis, 274 AD2d 880, 881 [2000]; Myers v Myers, 255 AD2d 711, 712 [1998]; Newkirk v Newkirk, 212 AD2d 951, 952 [1995]). These determinations shall not be overturned lightly on appeal (see Xiaokang Xu v Xiaoling Shirley He, supra at 863; Conrad v Conrad, supra at 795; Delliveneri v Delliveneri, supra at 798). Here, Supreme Court presided over this nonjury trial where it heard undisputed testimony from plaintiff regarding both the treatment that she endured from defendant, as well as her reasons for suspecting an extramarital affair. The court noted that “defendant’s lack of communication, isolation, name calling, controlling behavior and refusal to end his ‘friendship’ with [the alleged paramour] and to attend marriage counseling are all acts which demonstrate that continued cohabitation is improper.” Significantly, Supreme Court credited plaintiff’s testimony that defendant’s conduct caused her to increase her antidepressant medication and, ultimately, vacate the marital residence. In addition, it reviewed the testimony of defendant’s alleged paramour, as well as that propounded by defendant which was limited to his employment and financial information. From the totality of the testimony, Supreme Court found defendant’s conduct to amount to a “systematic pattern of emotional neglect.” Having carefully set forth, in a lengthy decision, each and every basis to support its ultimate conclusion [1071] that continued, cohabitation with defendant would be unsafe, we respect the deference accorded to Supreme Court and its decision that defendant’s conduct constituted cruel and inhuman treatment. Nor do we find an abuse of discretion in the award of maintenance. Fully acknowledging the factors set forth in Domestic Relations Law § 236 (B) (6) (a), Supreme Court relied upon testimony establishing the reasons underlying both the disparate incomes between the parties and their future earning potential. Plaintiff stayed home, upon mutual agreement, to care for the children from 1974 until 1991 and, although she rejoined the work force in 1994, she stopped because of the injuries that she sustained in a car accident. By the time of trial, she was working part time, seeking full-time employment, which would yield an estimated income of approximately $17,000 per year. Defendant was grossing over $57,000 in 2002, decreasing to $38,891 at the time of trial because of a voluntary change in his work shift. Having studied welding, electric work and machine work, he also testified that he receives additional income from odd jobs that he performs outside of his full-time employment. In light of the disparity in income and the parties’ future earning capacity, there is no abuse of discretion in the award of $450 per month in maintenance to plaintiff until she reaches the age of 62 (see Shortis v Shortis, supra at 882). In so finding, we note that Supreme Court did not need to consider each and every statutory factor in determining that award (see Wheeler v Wheeler, 12 AD3d 982, 983 [2004]). As to the award of counsel fees, a determination left to the sound discretion of the trial court (see Nelson v Nelson, 290 AD2d 826, 828 [2002]; Strang v Strang, 222 AD2d 975, 979 [1995]), we again find no error. The total of $3,000 awarded, $2,000 after trial and $1,000 for interim fees from the pendente lite order, was entirely reasonable considering the disparate financial circumstances of the parties. Cardona, EJ., and Spain, J., concur.