REID v. REID (2008)

In an action for a divorce and ancillary relief, the defendant wife appeals from an interlocutory judgment of the Supreme Court, Nassau County (Diamond, J.), entered May 19, 2008, which, after a nonjury trial, awarded the plaintiff husband a divorce on the ground of abandonment.

ORDERED that the interlocutory judgment is affirmed, with costs.

Contrary to the defendant's contention, the plaintiff made out a prima facie case of divorce on the ground of constructive abandonment by testifying at trial that for at least one year prior to the commencement of this action, the defendant had unjustifiably refused to engage in sexual relations with him, despite his repeated requests (see Czaban v. Czaban, 44 A.D.3d 894, 844 N.Y.S.2d 383).

The defendant's testimony that the parties had reached an agreement that they would continue in a sexless marriage raised an issue of credibility, and we decline to disturb the Supreme Court's determination with respect thereto (see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 470 N.Y.S.2d 350, 458 N.E.2d 809;  Zeltser v. Sacerdote, 52 A.D.3d 824, 860 N.Y.S.2d 624;  Campbell v. Campbell, 50 A.D.3d 614, 854 N.Y.S.2d 543).

The defendant's remaining contentions are without merit.