Sandhu v. Sandhu

95 A.D.2d 800, 463 N.Y.S.2d 520, 1983 N.Y. App. Div. LEXIS 18724

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 13, 1983
• Status: Published

Opinions

— In a divorce action, the defendant wife appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Suffolk County (Rohl, J.), entered September 29,1982, as, after a nonjury trial, (1) granted the plaintiff husband a divorce on the ground of cruel and inhuman treatment; (2) dismissed the defendant wife’s cause of action for divorce; (3) awarded the husband custody of the three infant children of the marriage; and (4) awarded the husband exclusive occupancy of the marital residence. Judgment affirmed, insofar as appealed from, without costs or disbursements. After considering the conflicting evidence adduced by the parties, Special Term determined that the plaintiff husband had established his cause of action for divorce and that the defendant wife had failed to establish her counterclaim for the same relief. The issue of whether to grant a divorce and, if so, whether it should be granted to plaintiff or defendant, or to both of them, ultimately turned on the credibility of the parties and their witnesses. In Boyd v Boyd (252 NY 422, 429) the Court of Appeals wrote: “Face to face with living witnesses the original trier of the facts holds a position of advantage from which appellate judges are excluded. In doubtful cases the exercise of his power of observation often proves the most accurate method of ascertaining the truth * * * The judge heard the sound of his voice and gazed upon his countenance and tells us that he believes the witness spoke the truth * * * How can we say the judge is wrong? We never saw the witnesses * * * To the sophistication and sagacity of the trial judge the law confides the duty of appraisal. If these witnesses imposed upon the credulity of an experienced fact finder, this court cannot correct him. His was the opportunity, the responsibility, and the power to decide.” (See, also, Berman v Weinstein, 64 AD2d 940.) While we respect the compassionate view espoused by our learned dissenting brother, the record before us clearly reveals evidence, which if believed, is sufficient to establish a cause of action for divorce in favor of the plaintiff on the ground of cruel and inhuman treatment. Conversely, in light of Special Term’s disbelief of the defendant wife’s testimony it can hardly be said that Special Term erred when it dismissed her cause of action for divorce. We also find no basis for disturbing Special Term’s finding with respect to custody and exclusive occupancy of the marital home. Gibbons, J. P., Bracken and Niehoff, JJ., concur.