Meier v. Meier

• Decision Date: 04 December 1989
• Citation: 156 A.D.2d 348,548 N.Y.S.2d 301
• Parties: Kathleen MEIER, Respondent, v. Ernst MEIER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 301

548 N.Y.S.2d 301

156 A.D.2d 348

Kathleen MEIER, Respondent, v. Ernst MEIER, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 4, 1989.

Sheila O'Donnell, Cornwall, for appellant.

McGuirk, Levinson, Zeccola, Seaman, Reineke & Ornstein, P.C., Central Valley (David L. Levinson, on the brief), for respondent.

Before MOLLEN, P.J., and BROWN, RUBIN and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the defendant husband appeals, as limited by his brief, (1) from so much of an order of the Supreme Court, Orange County (Ingrassia, J.), entered August 24, 1989, as, (a) upon a jury verdict, granted the plaintiff wife a divorce based on cruel and inhuman treatment, (b) awarded the plaintiff wife custody of the parties' three minor children, (c) allowed the plaintiff wife to relocate with the children from New York to California, (d) directed the defendant husband to pay child support in the sum of $100 per week per child, (e) directed the defendant husband to pay maintenance in the sum of $100 per week for one year from the date of entry of the judgment, and (f) equitably distributed the parties' marital assets; and (2) from so much of a judgment of the same court dated September 22, 1989, as was entered upon the provisions of the aforesaid order.

ORDERED that the appeal from the order entered August 24, 1989, is dismissed without costs or disbursement; and it is further,

ORDERED that the judgment is modified, on the law and the facts, by (1) deleting therefrom the provision granting the plaintiff wife a divorce on the ground of cruel and inhuman treatment and substituting therefor a provision setting aside the jury verdict awarding her a divorce and dismissing her cause of action for divorce, (2) deleting therefrom the provision granting the plaintiff wife's application to relocate with the children from New York to California and substituting therefor a provision granting the plaintiff's application to the extent of permitting her to relocate to California provided she consents to awarding the defendant husband custody of the parties' children, (3) deleting the provision thereof directing equitable distribution of the parties' marital property and substituting therefor a provision denying the plaintiff wife's request for equitable distribution, and (4) deleting the provisions directing the defendant-husband to pay $100 per week per child in child support and $100 per week to the plaintiff in maintenance for one year; as so modified, the judgment is affirmed insofar as appealed from without costs or disbursements, and the matter is remitted to the Supreme Court, Orange County, for further proceedings in accordance with Domestic Relations Law § 236(B)(5)(g).

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].

We agree with the defendant husband's contention that the evidence adduced at the trial was insufficient, as a matter of law, to support the jury verdict awarding the plaintiff wife a divorce on the ground of cruel and inhuman treatment. It is well established that a plaintiff seeking a divorce on the ground of cruel and inhuman treatment must demonstrate serious misconduct on the part of the defendant, not mere incompatibility (see, Brady v. Brady, 64 N.Y.2d 339, 486 N.Y.S.2d 891, 476 N.E.2d 290; Hessen v. Hessen, 33 N.Y.2d 406, 353 N.Y.S.2d 421, 308 N.E.2d 891; Del Gatto v. Del Gatto, 142 A.D.2d 545, 530 N.Y.S.2d 584). Thus, a plaintiff, in seeking a divorce on that ground, must establish "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, supra, 64 N.Y.2d at 343, 486 N.Y.S.2d 891, 476 N.E.2d 290; Andritz v. Andritz, 131 A.D.2d 529, 516 N.Y.S.2d 262). It has been recognized that "riotous quarrels" or claims that the marriage is "dead" do not constitute cruel and inhuman treatment (see, Brady v. Brady, supra, 64 N.Y.2d at 346, 486 N.Y.S.2d 891, 476 N.E.2d 290; Tsakis v. Tsakis, 110 A.D.2d 763, 764, 488 N.Y.S.2d 51; Del Gatto v. Del Gatto, supra, 142 A.D.2d at 545, 530 N.Y.S.2d 584; Filippi v. Filippi, 53 A.D.2d 658, 659, 384 N.Y.S.2d 1010). The evidence adduced at the divorce trial herein, when viewed in the light most favorable to the plaintiff wife, indicated that the parties were incompatible and that the defendant refused to communicate with the plaintiff, had minimal involvement with the parties' children and refused to have sexual relations with the plaintiff. Although this evidence portrays an unhappy, acrimonious and incompatible relationship between the parties, it does not rise to the level of endangering the plaintiff's mental or physical well-being (see, Del Gatto v. Del Gatto, supra ). Accordingly, the jury verdict awarding the plaintiff a divorce on the ground of cruel and inhuman treatment must be set aside and that cause of action of the plaintiff's complaint dismissed.

In view of the fact that the portion of the judgment appealed from which awarded the plaintiff a divorce is reversed and that cause of action of the complaint dismissed, the provisions of the judgment which equitably distributed the parties' marital assets must also be reversed. Equitable distribution of the parties' marital property, unlike maintenance, custody and child support, is...