Reutenauer v. Reutenauer

• Decision Date: 18 July 1996
• Parties: James H. REUTENAUER Appellant, v. Mary A. REUTENAUER, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 583

645 N.Y.S.2d 583

229 A.D.2d 776

James H. REUTENAUER Appellant, v. Mary A. REUTENAUER, Respondent.

Supreme Court, Appellate Division,

Third Department.

July 18, 1996.

Francis J. Roche, Hudson, for appellant.

Eugenia M. Brennan, Athens, for respondent.

Before CARDONA, P.J., and MIKOLL, MERCURE, WHITE and SPAIN, JJ.

MIKOLL, Justice.

Appeal from a judgment of the Supreme Court (Benson, J.H.O.), entered December 18, 1995 in Columbia County, upon a decision of the court in favor of defendant.

The parties were married August 8, 1948 and had three children, all of whom are now over 30 years of age. The parties separated on July 20, 1992 when plaintiff left the marital residence and began voluntarily paying defendant $550 per month. Plaintiff filed the summons and complaint herein on April 28, 1994 seeking a divorce based on cruel and inhuman treatment and constructive abandonment. On May 18, 1994 defendant interposed her verified answer asserting denials with counterclaims and demanding a judgment of divorce plus maintenance, equitable distribution and other relief. Defendant moved for pendente lite relief by motion served June 15, 1994 seeking counsel fees and $1,500 per month interim maintenance. On November 10, 1994 Supreme Court partially granted defendant's motion ordering plaintiff to pay $1,000 per month maintenance pendente lite, retroactive to June 15, 1994.

Upon commencement of the nonjury trial before Supreme Court, defendant stipulated to withdraw the counterclaims asserted in her answer including her demand for a divorce and leave to resume her maiden name. The evidence consisted of the testimony of the parties plus four exhibits. In a decision and order issued November 14, 1995, Supreme Court noted that it had "signed Findings, Conclusions and Judgment on September 22, 1995 in error, in the belief that the plaintiff's attorney's submission was unopposed". Supreme Court then granted, sua sponte, reargument and, finding that defendant had submitted findings and conclusions of law within the allotted time, vacated its findings and conclusions signed September 22, 1995. The court then granted defendant's motion dismissing the complaint for plaintiff's failure to prove a cause of action by a fair preponderance of the credible evidence. Citing to Brady v. Brady, 64 N.Y.2d 339, 486 N.Y.S.2d 891, 476 N.E.2d 290, Supreme Court stated that:

The elements of cruelty and inhumanity upon which the plaintiff relied were no more than day-to-day disagreements about the parties participation in social events. The record does not contain a hint of violence or overt physically or emotionally injurious conduct by the defendant which could engender any lack of safety or propriety in the plaintiff's remaining to cohabit with her. Unhappiness alone is not enough to warrant the granting of a divorce.

Accordingly, Supreme Court dismissed the complaint and awarded ancillary relief directing plaintiff to pay the costs of the action, counsel fees in the sum of $3,000 and maintenance to defendant in the sum of $1,500 per month beginning December 1, 1995. The judgment credited plaintiff for the sums voluntarily paid by him toward maintenance. Plaintiff appeals.

The judgment of Supreme Court should be modified by amending the maintenance award to reflect that payment of maintenance arrears should have been made retroactive to May 18, 1994, the date defendant commenced her action and first demanded maintenance by service of her answer upon defendant. The amount of counsel fees payable to defendant should be reduced to $2,000 consistent with the application and affidavits of counsel for defendant. The judgment as so modified should be affirmed.

Plaintiff argues that Supreme Court erred in its ruling because the proof established that the misconduct of defendant was substantial and not merely transient (see, Brady v. Brady, supra, at 344-345, 486 N.Y.S.2d 891, 476 N.E.2d 290; Hessen v. Hessen, 33 N.Y.2d 406, 411, 353 N.Y.S.2d 421, 308 N.E.2d 891; Blaise v. Blaise, 206 A.D.2d 715, 716, 614 N.Y.S.2d 779; Dunne v. Dunne, 172 A.D.2d 482, 567 N.Y.S.2d 838; McKilligan v. McKilligan, 156 A.D.2d 904, 550 N.Y.S.2d 121). We disagree. Supreme Court could properly conclude from the conflicting testimony that plaintiff, in this 46-year marriage, failed to sustain his burden of proving by a preponderance of the credible evidence that there were any acts of overt physical violence or of emotionally injurious conduct on the part of defendant toward him which would engender any lack of safety or propriety in plaintiff remaining to cohabit with defendant (see, Brady v. Brady, supra, at 346, 486...