Bernholc v. Bornstein

• Decision Date: 06 April 2010
• Citation: 72 A.D.3d 625,898 N.Y.S.2d 228
• Parties: Nicole M. BERNHOLC, respondent, v. Jay BORNSTEIN, appellant.
• Court: New York Supreme Court — Appellate Division

898 N.Y.S.2d 228

72 A.D.3d 625

Nicole M. BERNHOLC, respondent,

v.Jay BORNSTEIN, appellant.

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

April 6, 2010.

Law Offices of Clifford J. Petroske, P.C., Bohemia, N.Y., for appellant.

Kurtzberg & Kurtzberg, P.C., Melville, N.Y. (Linda A. Kurtzberg and Joshua Adam Kittenplan of counsel), for respondent.

PETER B. SKELOS, J.P., JOSEPH COVELLO, RUTH C. BALKIN, and SANDRA L. SGROI, JJ.

In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Suffolk County (Cohen, J.), entered December 4, 2008, which, inter alia, upon a jury verdict, awarded the plaintiff a divorce on the grounds of constructive abandonment and cruel and inhuman treatment and, after a nonjury trial, awarded him only 40% of the marital property as his equitable share, directed him to pay 40% of certain credit card debt incurred by the plaintiff consisting of a debt to American Express Costco in the sum of $1,835. 93 and a debt to Smith Barney Visa Platinum Selection in the sum of $1,005, failed to award him equitable distribution of a specified Teachers Federal Credit Union account in the plaintiff's name, awarded him the sum of only $900as a distributive award attributable to the marital residence, and failed to award him maintenance and counsel fees.

ORDERED that the judgment is modified, on the law and the facts, (1) by deleting the provision thereof directing the defendant to pay 40% of certain credit card debt incurred by the plaintiff consisting of a debt to American Express Costco in the sum of $1,835.93 and a debt to Smith Barney Visa Platinum Selection in the sum of $1,005, and (2) by deleting the provision thereof awarding the defendant the sum of $900 as a distributive award attributable to the marital residence and substituting therefor a provision awarding the defendant the sum of $34,189.96; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements.

The parties were married on March 8, 1992, and have one child, who was born on June 10, 1996. At the time of the marriage, the plaintiff wife owned the marital residence, which she purchased in 1984. The parties agree that certain renovations performed around the time of the marriage resulted in an appreciation in its value in the sum of $35,000.

On February 6, 2007, the plaintiff commenced this actionseeking, inter alia, a divorce on the grounds of constructive abandonment and cruel and inhuman treatment. The issue of whether the plaintiff had grounds for a divorce was tried before a jury, which unanimously found in her favor with respect to both grounds alleged. Additionally, following a nonjury trial on ancillary issues, the Supreme Court, inter alia, awarded the defendant 40% of the marital property as his equitable share, treated the plaintiff's credit card debt as marital debt and directed the defendant to pay 40% of that debt, limited the defendant's distributive award for the value of improvements made to the marital residence to the sum of $900, failed to award the defendant a distributive award from a specified Teachers Federal Credit Union account in the plaintiff's name, an award of maintenance, and an award of counsel fees. We modify.

For a court to determine that a jury verdict is not supported by legally sufficient evidence, it must conclude that there is "no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial" ( Cohen v. Hallmark Cards, Inc., 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145). Furthermore, a jury verdict should not be set aside as against the weight of the evidence unless the verdict could not have been reached upon any fair interpretation of the evidence ( see Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163). Here, the jury properly found that the plaintiff was entitled to a divorce on the ground of cruel and inhuman treatment. A party seeking a divorce on the ground of cruel and inhuman treatment "must generally show 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). "A pattern of conduct which includes verbal abuse and physical harassment is sufficient" ( Bulger v. Bulger, 88 A.D.2d at 896, 450 N.Y.S.2d 601; see Freas v. Freas, 33 A.D.3d 1069, 1070, 822 N.Y.S.2d 798). In the case of a long marriage, "courts in this State have required a high degree of proof of cruel and inhuman treatment ... and an isolated act of mistreatment will rarely suffice" ( Brady v. Brady, 64 N.Y.2d at 344, 486 N.Y.S.2d 891, 476 N.E.2d 290). Contrary to the defendant's contention, his tumultuous behavior on several occasions, as well as his verbalabuse, were sufficient to establish a cause of action for a divorce based on cruel and inhuman treatment ( see Bulger v. Bulger, 88 A.D.2d 895, 896, 450 N.Y.S.2d 601). Further, the plaintiff's doctor and therapist testified that the defendant's conduct was affecting her mentally and physically. Accordingly, the jury's finding that the plaintiff was entitled to a divorce on the ground of cruel and inhuman treatment was supported bylegally sufficient evidence and was not against the weight of the evidence.

On the question of equitable distribution of marital property, a trial court is vested with broad discretion in making an equitable distribution award, and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed; equitable distribution does not necessarily mean equal distribution ( see Michaelessi v. Michaelessi, 59 A.D.3d 688, 689, 874 N.Y.S.2d 207; Evans v. Evans, 57 A.D.3d 718, 719, 870 N.Y.S.2d 394; Mavra v. Mavra, 131 A.D.2d 447, 448, 516 N.Y.S.2d 472). Under the totality of the circumstances in this case, the award of 40% of the marital property to the defendant was a provident exercise of discretion.

However, the evidence did not establish that the plaintiff's credit card debt constituted marital debt that should be shared equally by the parties, as opposed to a debt incurred by the plaintiff for her personal expenses ( see Preisner v. Preisner, 47 A.D.3d 695, 696, 850 N.Y.S.2d 492; Mulcahy v. Mulcahy, 255 A.D.2d 565, 681 N.Y.S.2d 66), and some of that debt was incurred subsequent to the commencement of the divorce action. Therefore, we find that the Supreme Court erred in directing the...