Nichols v. Nichols, 96586.

• Court: New York Supreme Court Appellate Division
• Citation: 19 A.D.3d 775,2005 NY Slip Op 04648,797 N.Y.S.2d 139
• Docket Number: 96586.
• Parties: ELEANOR NICHOLS, Respondent, v. JAMES NICHOLS, Appellant.
• Decision Date: 09 June 2005

19 A.D.3d 775 797 N.Y.S.2d 139 2005 NY Slip Op 04648 ELEANOR NICHOLS, Respondent,
v.
JAMES NICHOLS, Appellant. 96586. Appellate Division of the Supreme Court of the State of New York, Third Department. June 9, 2005.

[19 A.D.3d 776]

Appeals (1) from a judgment of the Supreme Court (Bradley, J.), entered March 4, 2004 in Ulster County, inter alia, granting plaintiff a divorce and ordering equitable distribution of the parties' marital property, upon a decision of the court, and (2) from an order of said court, entered April 8, 2004 in Ulster County, which denied defendant's motion to set aside certain portions of the court's decision.

SPAIN, J.

The parties were married in 1973 and have three children. The two oldest children were emancipated by the time of trial. Following a bench trial, Supreme Court granted plaintiff a divorce on the ground of cruel and inhuman treatment, distributed the marital property, and directed defendant to pay maintenance and child support. Defendant then, pursuant to CPLR 4404 (b), unsuccessfully sought an order setting aside certain portions of the decision. Defendant now appeals from both the judgment and the subsequent order denying his motion.

Initially, defendant contends that the evidence presented was insufficient to establish cruel and inhuman treatment. An action for divorce may be maintained on the ground of cruel and inhuman treatment when defendant's conduct "so endangers the physical or mental well being of the plaintiff as [to render] it unsafe or improper for the plaintiff to cohabit with the defendant"

19 A.D.3d 777

(Domestic Relations Law § 170 [1]). In marriages of long duration, a higher degree of proof is required to establish "serious or substantial misconduct" (Pfoltzer v Morris-Pfoltzer, 9 AD3d 615, 616 [2004]).

In our view, Supreme Court's determination that defendant's conduct rose to that level was sufficiently supported in the record and reflected a provident exercise of the court's broad discretion (see id. at 616-617; Collins v Collins, 284 AD2d 743, 745 [2001]; Gray v Gray, 245 AD2d 584, 585 [1997]). Plaintiff testified to 30 years of cruel, authoritarian and demeaning treatment by defendant, whose behavior during the last five years of their marriage caused plaintiff to seek treatment for serious clinical depression (see Conrad v Conrad, 16 AD3d 794, 795 [2005]). Notwithstanding defendant's denials, Supreme Court's factual determinations and assessments of witness credibility are entitled to deference (see Clarkson v Clarkson, 103 AD2d 964, 964-965 [1984]).

Turning to the issue of maintenance, we find that although Supreme Court failed to articulate the statutory factors which shaped its award (see Domestic Relations Law § 236 [B] [6] [a] [1]-[11]; [b]), the record before us is sufficient to conduct our own review (see Wojewodzic v Wojewodzic, 300 AD2d 985, 986 [2002]). Here, defendant earns $96,910 annually,^* while plaintiff receives only $18,056 annually from a disability retirement pension and earnings from part-time employment. Given plaintiff's age and poor health, the gross disparity between the parties' incomes and the unlikelihood of plaintiff becoming self-supporting, we find that Supreme Court did not abuse its discretion in fixing maintenance at $350 per week until she is 62, a period of six years.

We also reject defendant's claim that Supreme Court's unequal equitable distribution award was in error. As with awards for maintenance, equitable distribution is left to the discretion of Supreme Court, which must examine and explain the statutory factors considered (see Smith v Smith, 8 AD3d 728, 729 [2004]; Lincourt v Lincourt, 4 AD3d 666, 666 [2004]). While...