Carr v. Carr
| Decision Date | 18 March 1991 |
| Citation | 567 N.Y.S.2d 495,171 A.D.2d 776 |
| Parties | Barbara CARR, Respondent, v. Brian CARR, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Alan D. Scheinkman, White Plains (John Ruti, of counsel), for appellant.
William J. Florence, Jr., Peekskill, for respondent.
Before THOMPSON, J.P., and ROSENBLATT, MILLER and RITTER, JJ.
MEMORANDUM BY THE COURT.
In an action for a divorce and ancillary relief, the defendant husband appeals, (1) from a judgment of divorce of the Supreme Court, Westchester County (Coppola, J), entered May 30, 1989, which granted the plaintiff wife a divorce, custody of the infant issue of the marriage, exclusive occupancy of the marital residence, and an award of maintenance and child support, and, (2) from an order of the same court entered August 22, 1989, which, inter alia, denied his motion to vacate an execution directing him to leave the marital residence and for related relief.
ORDERED that the plaintiff is awarded one bill of costs.
A trial court's findings of fact on the issue of cruel and inhuman treatment will not lightly be overturned on appeal (see, Rispoli v. Rispoli, 131 A.D.2d 556, 516 N.Y.S.2d 280; Davis v. Davis, 83 A.D.2d 547, 441 N.Y.S.2d 26). Under the circumstances of this case, the trial court properly granted the wife a divorce (see, Domestic Relations Law § 170[1].
Likewise, the findings of the trial court with regard to matters of custody must be accorded great respect, and should not be set aside in the absence of articulated reasons therefor (see, Eschbach v. Eschbach, 56 N.Y.2d 167, 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260). While both parties appear to be capable and loving parents, we find no basis to upset the trial court's conclusion that joint custody is inappropriate because of the parties' inability to put aside their differences for the good of the children (see, Braiman v. Braiman, 44 N.Y.2d 584, 589-590, 407 N.Y.S.2d 449, 378 N.E.2d 1019; Trolf v. Trolf, 126 A.D.2d 544, 510 N.Y.S.2d 666). Moreover, given her role as the primary care provider and her availability to the children, custody was properly awarded to the wife. In addition, the award of exclusive use and occupancy of the marital residence to the custodial parent until...
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