Helm v. Helm

• Decision Date: 23 February 2012
• Citation: 92 A.D.3d 1164,2012 N.Y. Slip Op. 01395,939 N.Y.S.2d 592
• Parties: Dawn M. HELM, Respondent, v. Matthew HELM, Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01395

92 A.D.3d 1164

939 N.Y.S.2d 592

Dawn M. HELM, Respondent,

v.Matthew HELM, Appellant.

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

Feb. 23, 2012.

Waite & Associates, P.C., Guilderland (Stephen J. Waite of counsel), for appellant.

Becker & Becker, Albany (Akilah Rawlins of counsel), for respondent.

Mark J. Gaylord, Schenectady, attorney for the children.

Before: MERCURE, Acting P.J., PETERS, MALONE JR., KAVANAGH and McCARTHY, JJ.

MALONE JR., J.

Appeal from a judgment of the Supreme Court (Powers, J.), entered May 21, 2010 in Schenectady County, granting plaintiff a divorce and ordering, among other things, primary physical custody of the parties' children to plaintiff, upon a decision of the court.

Plaintiff and defendant married in 1993 and are the parents of three children (born in 1994, 1995 and 1997).¹ In November 2007, plaintiff commenced this action for divorce on the ground of cruel and inhuman treatment, alleging that defendant controlled and harassed her. Following a trial, Supreme Court granted plaintiff a divorce and awarded the parties joint legal custody of the children, with primary physical custody to plaintiff. Defendant appeals, arguing, as limited by his brief, that plaintiff failed to prove that she was entitled to a divorce and that Supreme Court erred by awarding physical custody of the children to plaintiff.

In an action for divorce, to prevail on the ground of cruel and inhuman treatment, “ ‘the party seeking the divorce must establish that the other party's conduct so threatened his or her physical or mental well-being that it would be unsafe or improper to continue to cohabit with the offending party’ ” ( Redgrave v. Redgrave, 304 A.D.2d 1062, 1063, 759 N.Y.S.2d 233 [2003], quoting Shortis v. Shortis, 274 A.D.2d 880, 880–881, 711 N.Y.S.2d 578 [2000]; accord Armstrong v. Armstrong, 72 A.D.3d 1409, 1411, 900 N.Y.S.2d 476 [2010]; see Domestic Relations Law § 170[1] ). Supreme Court is vested with broad discretion in determining whether a spouse's conduct rises to the level of cruel and inhuman treatment, and its factual determinations and assessment of witness credibility will be accorded deference ( see Bennett v. Bennett, 82 A.D.3d 1294, 1295, 918 N.Y.S.2d 617 [2011]; Armstrong v. Armstrong, 72 A.D.3d at 1411, 900 N.Y.S.2d 476).

Here, plaintiff's proof, which Supreme Court specifically found to be more credible than defendant's, established defendant's controlling nature and ongoing abusive behavior toward plaintiff throughout their marriage. Plaintiff testified that defendant's behavior caused her to suffer stress, anxiety, headaches and loss of appetite, among other ailments. According to plaintiff's testimony, over the course of the parties' marriage, defendant unilaterally determined how the children would be disciplined and where and when they would spend their holidays, and controlled the amount of time she and the children spent with plaintiff's family. Plaintiff testified that, after she announced her intention to divorce him, defendant's behavior escalated to the point where he deprived her of privacy by following her into the bathroom and remaining there while she attended to personal needs and by reviewing her cell telephone call log on a daily basis. During one argument, according to plaintiff, defendant “trapped” her in the house by taking her car keys and cell telephone and prevented her from going to a neighbor's house.

Defendant's controlling behavior continued even after plaintiff vacated the marital residence. For instance, because all of the couple's vehicles were registered in defendant's name, defendant denied plaintiff permission to use any of them after she left and he disconnected the service to her cell telephone. On one occasion when plaintiff arrived to pick up the children, an argument ensued during which defendant again took plaintiff's car keys, forcibly pulled plaintiff away from a window when she attempted to signal for help and then threw her onto a couch. According to plaintiff, whose testimony the court expressly credited, defendant then threatened to kill her and attempted to choke her, stopping only when one of the parties' children entered the room. Considering the proof in the record as a whole, and deferring to Supreme Court's finding that plaintiff's testimony was more credible than defendant's, we find that the court did not abuse its discretion by finding that defendant's conduct threatened plaintiff's physical or mental well-being such that it would be unsafe or improper for her to continue to live with him ( see Sanacore v. Sanacore, 74 A.D.3d 1468, 1470, 904 N.Y.S.2d 234 [2010]; Kung v. Kung, 69 A.D.3d 1295, 1295–1296, 893 N.Y.S.2d 391 [2010] ).

As for defendant's contention that Supreme Court erred by granting plaintiff primary physical custody of the children, it is well settled that, in custody matters, the court's overriding concern is the best interests of the children, “which requires consideration of all relevant factors including ‘the parents' ability to provide a stable home environment for the child[ren], the child[ren's] wishes, the parents' past performance, relative fitness, ability to guide and provide for the child[ren's] overall well-being, and the willingness of each parent to foster a relationship with the other parent’ ” ( Matter of Shearer v. Spisak, 90 A.D.3d 1346, 1347, 935 N.Y.S.2d 215 [2011], quoting Matter of Rundall v. Rundall, 86 A.D.3d 700, 701, 927 N.Y.S.2d 414 [2011]; see Porcello v. Porcello, 80...