Soto v. Soto

Appellate Division of the Supreme Court of New York

Soto v. Soto

216 A.D.2d 455, 628 N.Y.S.2d 391, 1995 N.Y. App. Div. LEXIS 6495

Appellate Division of the Supreme Court of the State of New York·Decided June 19, 1995·Published·Cited by 8 cases

Opinion

In an action for a divorce and ancillary relief, the wife appeals, as limited by her brief, from so much of a [456]*456judgment of the Supreme Court, Orange County (Barone, J), entered February 11, 1994, as granted the husband a divorce on the ground of cruel and inhuman treatment. The wife’s notice of appeal from the order dated December 22, 1993, is deemed a premature notice of appeal from the judgment (see, CPLR 5520 [c]).

Ordered that the judgment is affirmed insofar as appealed from, without costs or disbursements.

The determination of the trial court as a fact finder on the issue of cruel and inhuman treatment will not be lightly disturbed on appeal (see, Tortorello v Tortorello, 133 AD2d 683; Rieger v Rieger, 161 AD2d 227). Giving due deference to the trial court’s assessment of the credibility of the witnesses, we are satisfied that the husband sufficiently demonstrated a course of conduct by the wife which so endangered his physical or mental well-being as rendered it unsafe or improper for him to cohabit with her (see, Domestic Relations Law § 170 [1]; Rieger v Rieger, supra; Bulger v Bulger, 88 AD2d 895). In view of the short duration of the marriage, the verbal abuse, both public and private, and physical harassment of the husband by the wife, cruel and inhuman treatment was proven (see, Hessen v Hessen, 33 NY2d 406; Rieger v Rieger, supra; Bulger v Bulger, supra).

Contrary to the wife’s contention, the trial court acted within its discretion in granting the husband’s motion to conform the pleadings to the proof adduced at trial (see, Murray v City of New York, 43 NY2d 400). Bracken, J. P., Balletta, Rosenblatt and Altman, JJ., concur.

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In an action for a divorce and ancillary relief, the wife appeals, as limited by her brief, from so much of a [456]*456judgment of the Supreme Court, Orange County (Barone, J), entered February 11, 1994, as granted the husband a divorce on the ground of cruel and inhuman treatment. The wife’s notice of appeal from the order dated December 22, 1993, is deemed a premature notice of appeal from the judgment (see, CPLR 5520 [c]).

Ordered that the judgment is affirmed insofar as appealed from, without costs or disbursements.

The determination of the trial court as a fact finder on the issue of cruel and inhuman treatment will not be lightly disturbed on appeal (see, Tortorello v Tortorello, 133 AD2d 683; Rieger v Rieger, 161 AD2d 227). Giving due deference to the trial court’s assessment of the credibility of the witnesses, we are satisfied that the husband sufficiently demonstrated a course of conduct by the wife which so endangered his physical or mental well-being as rendered it unsafe or improper for him to cohabit with her (see, Domestic Relations Law § 170 [1]; Rieger v Rieger, supra; Bulger v Bulger, 88 AD2d 895). In view of the short duration of the marriage, the verbal abuse, both public and private, and physical harassment of the husband by the wife, cruel and inhuman treatment was proven (see, Hessen v Hessen, 33 NY2d 406; Rieger v Rieger, supra; Bulger v Bulger, supra).

Contrary to the wife’s contention, the trial court acted within its discretion in granting the husband’s motion to conform the pleadings to the proof adduced at trial (see, Murray v City of New York, 43 NY2d 400). Bracken, J. P., Balletta, Rosenblatt and Altman, JJ., concur.

Soto v. Soto, 216 A.D.2d 455, 628 N.Y.S.2d 391, 1995 N.Y. App. Div. LEXIS 6495 (N.Y. Ct. App. 1995).

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