Davis v. Davis

In an action for divorce, defendant appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Westchester County (Dachenhausen, J.), entered March 12, 1980, as (1) dismissed his counterclaim for divorce, (2) granted plaintiff a divorcé on the ground of cruel and inhuman treatment, (3) awarded plaintiff alimony of $190 per week and child support of $70 per week, and (4) awarded plaintiff a counsel fee of $3,500. Judgment affirmed, insofar as 548 appealed from, without costs or disbursements. A trial court possesses wide discretion to determine the issue of cruel and inhuman treatment and such determinations will not be lightly overturned on appeal (McKay v McKay, 78 AD2d 676; Arnold v Arnold, 52 AD2d 546). The trial court’s determination herein that the defendant had engaged in cruel and inhuman treatment of the plaintiff is supported by the record. In any event, it appears that based upon the findings of the trial court plaintiff would also be entitled to a divorce based on constructive abandonment as pleaded in her complaint (see Diemer v Diemer, 8 NY2d 206; Benarroch v Benarroch, 55 AD2d 943; Dudzick v Dudzick, 84 Misc 2d 731). Although defendant contends that he was entitled to a divorce based on the latter ground because it was the plaintiff who refused to enter into sexual relations with him, we defer to the trial court’s resolution of the conflicting testimony in this regard (see Mante v Mante, 34 AD2d 134, 138). The awards of alimony, child support and counsel fees were not improper in light of the parties’ needs, financial positions and employment capabilities, the marital standard of living and the duration of the marriage. Damiani, J. P., Gibbons, Rabin and Margett, JJ., concur.