Warshaw v. Warshaw

• Decision Date: 08 January 1991
• Citation: Warshaw v. Warshaw, 564 N.Y.S.2d 137, 169 A.D.2d 408 (N.Y. App. Div. 1991)
• Parties: Philip M. WARSHAW, Plaintiff-Respondent-Appellant, v. Barbara L. WARSHAW, Defendant-Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 137

564 N.Y.S.2d 137

169 A.D.2d 408

Philip M. WARSHAW, Plaintiff-Respondent-Appellant, v. Barbara L. WARSHAW, Defendant-Appellant-Respondent.

Supreme Court, Appellate Division First Department.

Jan. 8, 1991.

Before KUPFERMAN, J.P., and ASCH, SMITH and RUBIN, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (David B. Saxe, J.), entered September 15, 1989, which after trial granted plaintiff a divorce on the grounds of cruel and inhuman treatment, awarded defendant maintenance of $2,000 per month plus, payment of rent or additional maintenance of $1,500 per month if evicted from the marital apartment, the cost of medical insurance and up to $450 per month for unreimbursed psychiatric expenses, all for a period of 5 years, together with a distributive award of $13,288 and counsel fees of $39,000, is unanimously modified, on the law and the facts, so as to direct plaintiff to obtain life insurance on his life for the benefit of defendant for the duration of the maintenance award in the amount of $75,000, and otherwise affirmed, without costs.

The parties, ages 45 and 40 respectively, were married 4 years. There are no issue of the marriage, although plaintiff, a salesman for his father's company earning a gross salary of approximately $125,000, did support defendant's son from a previous marriage. The parties maintained a luxurious standard of living, generally as a result of plaintiff's father's largess. Defendant did not work during the marriage, suffers from depression and is presently unable to support herself.

Defendant contends that plaintiff failed to establish his entitlement to a divorce on the grounds of cruel and inhuman treatment, which requires a showing of serious misconduct. (Domestic Relations Law § 170[1]; Brady v. Brady, 64 N.Y.2d 339, 486 N.Y.S.2d 891, 476 N.E.2d 290.) The findings of the trial court that certain conduct constituted cruel and inhuman treatment on this issue will not be lightly set aside on appeal Rieger v. Rieger, 161 A.D.2d 227, 554 N.Y.S.2d 613 and special deference is paid to the trial court's determination of credibility in weighing conflicting testimony (see, Rispoli v. Rispoli, 131 A.D.2d 556, 516 N.Y.S.2d 280, appeal denied, 70 N.Y.2d 609, 522 N.Y.S.2d 109, 516 N.E.2d 1222). While many of the allegations were disregarded by the trial court as uncorroborated (see Lind v. Lind, 89 A.D.2d 518, 452 N.Y.S.2d 204, affd., 58 N.Y.2d 965, 460 N.Y.S.2d 524, 447 N.E.2d 72; but see, D'Amato v. D'Amato, 96 A.D.2d 849, 466 N.Y.S.2d 23), the credited evidence was sufficient to warrant the trial court's conclusions.

The court properly...