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Suzanne Garver, Appellant,
John A. Garver, Respondent.


May 7, 1998, Argued

August 24, 1998, Decided

Garver v. Garver

253 A.D.2d 512; 677 N.Y.S.2d 155


William Dunnegan, New York, N.Y., for appellant.

Carol Eisenberg, Commack, N.Y., for respondent.

JUDGES: O'Brien, J. P., Sullivan, Pizzuto and Joy, JJ., concur.


 Ordered that the judgment is modified by (1) deleting the provision thereof which granted the defendant's counterclaim for a divorce on the ground of cruel and inhuman treatment and substituting therefor a provision denying the defendant's counterclaim for a divorce, (2) deleting the provisions thereof concerning equitable distribution of the marital assets and debts, and (3) deleting the provision thereof which required the defendant to pay to the plaintiff maintenance in the amount of $ 300 per week for three years or her sooner remarriage or the death of either party and substituting therefor a provision that the defendant pay to the plaintiff maintenance in the amount of $300 per week until the death of either party or upon modification of the provision pursuant to Domestic Relations Law 236 (B) (1) (a) or 248; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements.

 We agree with the plaintiff wife that the court erred in granting the defendant husband a divorce on the ground of cruel and inhuman treatment. A party seeking a divorce on that ground "must show serious misconduct, and not mere incompatibility", i.e., "a course of conduct by the defendant spouse which is harmful to the physical or mental health of the plaintiff and makes cohabitation unsafe or improper" ( Brady v Brady, 64 NY2d 339, 343; see, Hessen v Hessen, 33 NY2d 406; Palin v Palin, 213 AD2d 707). Here, the husband's testimony that the wife was verbally abusive to him and that they had a "stressful relationship" was insufficient to establish "cruel and inhuman treatment" by the wife, especially in light of the fact that the parties continued to live in the same residence after the commencement of the instant action (see, Arunas v Arunas, 227 AD2d 424; Palin v Palin, supra; Stagliano v Stagliano, 132 AD2d 975, 976).

 We reject the wife's contention, however, that the court erred in refusing to grant her a divorce on the ground of constructive abandonment (see, Domestic Relations Law 170 [2]). Resolution of that issue depended upon the trial court's assessment of the parties' credibility, and we decline to substitute our judgment for that of the trial court on this issue (see, Kalinich v Kalinich, 205 AD2d 736; Schottenfeld v Schottenfeld, 152 AD2d 690; Raso v Raso, 129 AD2d 692).

 Since neither the husband nor the wife established their entitlement to a divorce, the marital property (and debt) was not subject to equitable distribution (see, Walczak v Walczak, 206 AD2d 900, 901; Meier v Meier, 156 AD2d 348). Moreover, absent the termination of the marital relationship, the court does not have the authority to direct the sale of the marital residence without the consent of the parties (see, Kayden v Kayden, 234 AD2d 345; Brady v Brady, 101 AD2d 797, affd 64 NY2d 339). Therefore, we need not address the wife's contentions with respect to the trial court's determinations on these issues.

 Despite the failure of the divorce action, the trial court was still authorized to award permanent maintenance to the wife (see, King v King, 230 AD2d 775). However, while we agree that the amount awarded for maintenance was proper, under the circumstances the duration of the maintenance must be for an indefinite period of time (see, Schildkraut v Schildkraut, 223 AD2d 585; Blisko v Blisko, 149 AD2d 127).

 The court did not improvidently exercise its discretion in denying the wife's request for counsel fees in the instant case (see, Domestic Relations Law 237 [a]; Kret v Kret, 222 AD2d 412; Shoenfeld v Shoenfeld, 168 AD2d 674, 677).

 Finally, under the circumstances of this case, the court did not improvidently exercise its discretion in directing that custody of the children's accounts be transferred from the wife to the husband.

 O'Brien, J. P., Sullivan, Pizzuto and Joy, JJ., concur.

The case of Garver v. Garver is provided as part of a free educational service by J. Douglas Barics, attorney at law, for reference only. Cases such as Garver may be overruled by subsequent decisions, different judicial departments may have different controlling case law, and the level of the court deciding each case will determine whether it is controlling law or not. Garver v. Garver is presented here to help illustrate how the law works in general, but for specific legal matters, an attorney should be consulted.

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