GARVER v. GARVER

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Supreme Court, Appellate Division, Second Department, New York.

Suzanne GARVER, Appellant, v. John A. GARVER, Respondent.

Decided: August 24, 1998

O'BRIEN, J.P., SULLIVAN, PIZZUTO and JOY, JJ. William Dunnegan, New York City, for appellant. Carol Eisenberg, Garden City, for respondent.

In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief, from stated portions of a judgment of the Supreme Court, Nassau County (Adams, J.), dated September 26, 1996, which, after a nonjury trial, inter alia, (1) awarded the defendant a divorce on the ground of cruel and inhuman treatment and denied her a divorce on the ground of constructive abandonment, (2) determined that a “Special Pension Benefit” payable to the defendant was not marital property, (3) determined that the parties had $951,317 in unsecured marital debt, (4) awarded her maintenance only in the amount of $300 per week for three years, (5) transferred custody of the accounts of the parties' children to the defendant, and (6) denied her application for counsel fees.

ORDERED that the judgment is modified by (1) deleting the provision thereof which granted the defendant's counterclaim for a divorce on the ground of cruel and inhuman treatment and substituting therefor a provision denying the defendant's counterclaim for a divorce, (2) deleting the provisions thereof concerning equitable distribution of the marital assets and debts, and (3) deleting the provision thereof which required the defendant to pay to the plaintiff maintenance in the amount of $300 per week for three years or her sooner remarriage or the death of either party and substituting therefor a provision that the defendant pay to the plaintiff maintenance in the amount of $300 per week until the death of either party or upon modification of the provision pursuant to Domestic Relations Law § 236(B)(1)(a) or § 248;  as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements.

 We agree with the plaintiff wife that the court erred in granting the defendant husband a divorce on the ground of cruel and inhuman treatment.   A party seeking a divorce on that ground “must show serious misconduct, and not mere incompatibility”, i.e., “a course of conduct by the defendant spouse which is harmful to the physical or mental health of the plaintiff and makes cohabitation unsafe or improper” (Brady v. Brady, 64 N.Y.2d 339, 343, 486 N.Y.S.2d 891, 476 N.E.2d 290;  see, Hessen v. Hessen, 33 N.Y.2d 406, 353 N.Y.S.2d 421, 308 N.E.2d 891;  Palin v. Palin, 213 A.D.2d 707, 624 N.Y.S.2d 630).   Here, the husband's testimony that the wife was verbally abusive to him and that they had a “stressful relationship” was insufficient to establish “cruel and inhuman treatment” by the wife, especially in light of the fact that the parties continued to live in the same residence after the commencement of the instant action (see, Arunas v. Arunas, 227 A.D.2d 424, 644 N.Y.S.2d 520;  Palin v. Palin, supra;  Stagliano v. Stagliano, 132 A.D.2d 975, 976, 518 N.Y.S.2d 506).

We reject the wife's contention, however, that the court erred in refusing to grant her a divorce on the ground of constructive abandonment (see, Domestic Relations Law § 170[2] ).   Resolution of that issue depended upon the trial court's assessment of the parties' credibility, and we decline to substitute our judgment for that of the trial court on this issue (see, Kalinich v. Kalinich, 205 A.D.2d 736, 614 N.Y.S.2d 907;  Schottenfeld v. Schottenfeld, 152 A.D.2d 690, 544 N.Y.S.2d 27;  Raso v. Raso, 129 A.D.2d 692, 514 N.Y.S.2d 516).

 Since neither the husband nor the wife established their entitlement to a divorce, the marital property (and debt) was not subject to equitable distribution (see, Walczak v. Walczak, 206 A.D.2d 900, 901, 614 N.Y.S.2d 835;  Meier v. Meier, 156 A.D.2d 348, 548 N.Y.S.2d 301).  Moreover, absent the termination of the marital relationship, the court does not have the authority to direct the sale of the marital residence without the consent of the parties (see, Kayden v. Kayden, 234 A.D.2d 345, 650 N.Y.S.2d 790;   Brady v. Brady, 101 A.D.2d 797, 475 N.Y.S.2d 470, affd. 64 N.Y.2d 339, 486 N.Y.S.2d 891, 476 N.E.2d 290).   Therefore, we need not address the wife's contentions with respect to the trial court's determinations on these issues.

 Despite the failure of the divorce action, the trial court was still authorized to award permanent maintenance to the wife (see, King v. King, 230 A.D.2d 775, 646 N.Y.S.2d 377).   However, while we agree that the amount awarded for maintenance was proper, under the circumstances the duration of the maintenance must be for an indefinite period of time (see, Schildkraut v. Schildkraut, 223 A.D.2d 585, 636 N.Y.S.2d 411;  Blisko v. Blisko, 149 A.D.2d 127, 544 N.Y.S.2d 670).

The court did not improvidently exercise its discretion in denying the wife's request for counsel fees in the instant case (see, Domestic Relations Law § 237 [a];  Kret v. Kret, 222 A.D.2d 412, 634 N.Y.S.2d 719;  Shoenfeld v. Shoenfeld, 168 A.D.2d 674, 677, 563 N.Y.S.2d 500).

Finally, under the circumstances of this case, the court did not improvidently exercise its discretion in directing that custody of the children's accounts be transferred from the wife to the husband.

MEMORANDUM BY THE COURT.

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