Kaufman v. Kaufman

• Decision Date: 29 August 1994
• Citation: 207 A.D.2d 528,616 N.Y.S.2d 65
• Parties: Joan A. KAUFMAN, Respondent-Appellant, v. Harvey J. KAUFMAN, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 65

616 N.Y.S.2d 65

207 A.D.2d 528

Joan A. KAUFMAN, Respondent-Appellant, v. Harvey J. KAUFMAN, Appellant-Respondent.

Supreme Court, Appellate Division,

Second Department.

Aug. 29, 1994.

Harvey J. Kaufman, appellant-respondent pro se.

Alexander J. Wulwick, New York City, for appellant-respondent (one brief filed).

Joel E. Miller, Flushing, for respondent-appellant.

Before LAWRENCE, J.P., and SANTUCCI, FRIEDMANN and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the defendant husband appeals from (1) so much of an order of the Supreme Court, Queens County (Corrado, J.), dated April 4, 1991, as, upon granting his motion for reargument, adhered to its decision dated February 6, 1991, which, inter alia, distributed the marital property and (2) so much of a judgment of the same court, dated April 10, 1991, as granted the plaintiff wife a divorce on the ground of abandonment, dismissed his counterclaim for a divorce on the ground of cruel and inhuman treatment, directed the sale of the marital residence with the net proceeds to be divided 60% to the wife and 40% to the husband, and directed the husband to pay to the wife, within six months of entry of the judgment, a distributive award of $78,602.41, and the wife cross-appeals from stated portions of the judgment, which, inter alia, limited her distributive award to $78,602.41, limited her recovery of the net proceeds of the marital residence to 60%, merged the husband's license to practice law into his law practice, valued the defunct practice at $5,000, one-half of which was credited to the wife, and valued the wife's master's degree as a marital asset worth $30,000, of which $9,000 was credited to the husband.

ORDERED that the appeal from the order dated April 4, 1991, is dismissed, without costs or disbursements; and it is further,

ORDERED that the judgment dated April 10, 1991, is affirmed, without costs or disbursements.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501[a][1].

On December 11, 1980, after 20 years of marriage, the defendant husband left the marital residence, without cause or provocation, with an intent never to return. He had not returned by July 1982, when the plaintiff wife commenced this action for divorce on the ground of abandonment (see, Domestic Relations Law § 170[2]. The court properly granted the wife a divorce on the ground of abandonment as the elements of the statute had been satisfied. The court also properly dismissed the husband's counterclaim for divorce based on cruel and inhuman treatment (Domestic Relations Law § 170[1] as the evidence showed that the wife's conduct did not rise to a level that threatened the husband's safety or well-being such that it was improper for him to continue to cohabit with the wife, particularly after a marriage of such long duration (see, Hessen v. Hessen, 33 N.Y.2d 406, 353 N.Y.S.2d 421, 308 N.E.2d 891; Denny v. Denny, 65 A.D.2d 658, 409 N.Y.S.2d 443, affd 48 N.Y.2d 915, 425 N.Y.S.2d 91, 401 N.E.2d 213; cf., e.g., Domin v. Domin, 188 A.D.2d 1026, 592 N.Y.S.2d 190; Sullivan v. Sullivan, 188 A.D.2d 953, 591 N.Y.S.2d 903; Zack v. Zack, 183 A.D.2d 382, 590 N.Y.S.2d 632).

We further find that the parties' claims that the court failed to...