Baecher v. Baecher
| Decision Date | 11 July 1977 |
| Citation | 396 N.Y.S.2d 447,58 A.D.2d 821 |
| Parties | Elizabeth R. BAECHER, Respondent, v. John J. BAECHER, Jr., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Giangrande & Herold, White Plains (Philip A. J. Giangrande, White Plains, of counsel), for appellant.
Doris L. Sassower, New Rochelle (Dennis G. Katz, White Plains, of counsel), for respondent.
Before COHALAN, J. P., and DAMIANI, HAWKINS and MOLLEN, JJ.
MEMORANDUM BY THE COURT.
In a matrimonial action, defendant appeals from a judgment of divorce of the Supreme Court, Westchester County, dated September 1, 1975.
Judgment modified, on the facts, by reducing (1) the award of alimony to the amount of $35 per week and (2) the award of child support to the amount of $30 per child per week for the two younger children. As so modified, judgment affirmed, with costs to respondent.
The record amply demonstrates that the defendant husband engaged in a course of conduct which constituted cruel and inhuman treatment endangering the plaintiff-respondent's physical and mental well-being, and thereby rendered it unsafe and improper for her to continue to cohabit with him.
The defendant's assertion of the psychologist-client privilege (see CPLR 4507) is without merit. Although, abstractly, the privilege applies in matrimonial proceedings (see Yaron v. Yaron, 83 Misc.2d 276, 372 N.Y.S.2d 518), in this case the defendant waived his right to the privilege by actively contesting custody, thereby putting his mental and emotional well-being into issue. In addition, the defendant was not significantly prejudiced by the psychologist's testimony, since it was primarily corroborative of testimony by the plaintiff and the two older children. Similarly, by stipulating to its use, the defendant waived any objection to Special Term's use of the confidential probation reports. Nor was there any proof that these reports constituted a major evidentiary basis for the court's determination. A review of these reports indicates that they are largely corroborative of testimony on the issues of divorce and custody.
Although the defendant has substantial earning potential, which should be utilized, his current unemployment and work history of nine jobs in five years, cannot be ignored. The modification is not so large that it will allow the defendant to avoid his responsibility to use his actual and potential resources to fulfill his support obligations.
To continue reading
Request your trial
-
Perry v. Fiumano
...has ruled that the psychologist-client privilege is automatically waived by a party who actively contests custody (Baecher v. Baecher, 58 A.D.2d 821, 396 N.Y.S.2d 447). One trial court in a custody case has held that any communication which is privileged when made remains privileged forever......
-
LeVien v. LaCorte
...Connell v. Bernstein-Macaulay, Inc., 407 F.Supp. 420 [1976]. In this regard, the Court acknowledges the case of Baecher v. Baecher, 58 A.D.2d 821, 396 N.Y.S.2d 447 [1977], app. den. 43 N.Y.2d 645, 402 N.Y.S.2d 1026, 373 N.E.2d 995 [1978] where the Appellate Court found without discussion or......
-
Foster v. Foster
...for lv. to app. den. 43 N.Y.2d 646, 402 N.Y.S.2d 1028, 373 N.E.2d 997). Concern must be with more liquid assets (e.g., Baecher v. Baecher, 58 A.D.2d 821, 396 N.Y.S.2d 447; Clements v. Clements, 55 A.D.2d 943, 391 N.Y.S.2d 140; Matter of Schleimer v. McMillan, 54 A.D.2d 701, 387 N.Y.S.2d 301......
-
S.G. v. I.B.
...by a party "actively contesting custody, thereby putting his mental and emotional well-being into issue" ( Baecher v. Baecher , 58 A.D.2d 821, 821, 396 N.Y.S.2d 447 [2nd Dept. 1977] ), or that even when not waived, the privilege is not absolute "that where it is demonstrated that invasion o......
-
Privileges
...concerning a prior false accusation privilege should have yielded to Sixth Amendment right of confrontation. Baecher v. Baecher , 58 A.D.2d 821, 396 N.Y.S.2d 447 (2d Dept. 1977). The psychologist-client privilege is waived by a party seeking custody of children in a matrimonial action since......
-
Privileges
...and not for other issues for which he may have received treatment, and which may have been embarrassing to him. Baecher v. Baecher , 58 A.D.2d 821, 396 N.Y.S.2d 447 (2d Dept. 1977). he psychologist-client privilege is waived by a party seeking custody of children in a matrimonial action sin......
-
Table of cases
...A.D.3d 229, 785 N.Y.S.2d 52 (1st Dept. 2004), § 8:20 Badr v. Hogan, 75 N.Y.2d 629, 555 N.Y.S.2d 249 (1990), § 15:110 Baecher v. Baecher, 58 A.D.2d 821, 396 N.Y.S.2d 447 (2d Dept. 1977), § 7:130 Bagailuk v. Weiss, 110 A.D.2d 284, 494 N.Y.S.2d 205 (3d Dept. 1985), §§ 3:100, 19:40, 19:80, 19:1......
-
Privileges
...and not for other issues for which he may have received treatment, and which may have been embarrassing to him. Baecher v. Baecher , 58 A.D.2d 821, 396 N.Y.S.2d 447 (2d Dept. 1977). he psychologist-client privilege is waived by a party seeking custody of children in a matrimonial action sin......