Ucci v. Ucci

50 A.D.2d 665, 374 N.Y.S.2d 835, 1975 N.Y. App. Div. LEXIS 12502

Opinions

Appeal from a judgment of the Supreme Court, entered October 23, 1974 in Albany County, which granted a divorce to plaintiff upon a decision of the court at a Trial Term, without a jury. While we agree with defendant that the proof does not warrant a finding of adultery committed by her in Atlantic City for want of clear and satisfactory evidence of her inclination and intent to engage in such an act at that time (cf. George v George, 34 AD2d 888), the judgment of divorce in plaintiff’s favor should nevertheless be affirmed since the record does contain otherwise sufficient evidence of cruel and inhuman treatment on her part. Insofar as custody of the parties’ children is concerned, we note that they have remained with the plaintiff father throughout the marital strife preceding the instant judgment and are being adequately cared for by him in a stable environment. Under the circumstances, we can find no adequate reason to disturb the trial court’s discretionary award of custody (cf. Spada v Sapda, 47 AD2d 586). Judgment affirmed, with costs. Kane, Main and Reynolds, JJ., concur; Greenblott, J., concurs in a separate memorandum; Herlihy, P. J., dissents and votes to reverse in a memorandum.