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Kathleen Meier, Respondent,
v.
Ernst Meier, Appellant


Supreme Court of New York, Appellate Division,

Second Department


Argued October 26, 1989

December 4, 1989


Meier v. Meier

156 A.D.2d 348; 548 N.Y.S.2d 301


COUNSEL

Sheila O'Donnell, Cornwall, New York, for appellant.


McGuirk, Levinson, Zeccola, Seaman, Reineke & Ornstein, P.C., Central Valley, New York (David L. Levinson on the brief), for respondent.


JUDGES: Mollen, P.J., Brown, Rubin and Sullivan, JJ., concur.


OPINION


 The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment ( CPLR 5501 [a] [1]).


 We agree with the defendant husband's contention that the evidence adduced at the trial was insufficient, as a matter of law, to support the jury verdict awarding the plaintiff wife a divorce on the ground of cruel and inhuman treatment. It is well established that a plaintiff seeking a divorce on the ground of cruel and inhuman treatment must demonstrate serious misconduct on the part of the defendant, not mere incompatibility (see, Brady v Brady, 64 NY2d 339; Hessen v Hessen, 33 NY2d 406; Del Gatto v Del Gatto, 142 AD2d 545). r 4 Thus, a plaintiff, in seeking a divorce on that ground, must establish "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, supra, at 343; Andritz v Andritz, 131 AD2d 529). It has been recognized that "riotous quarrels" or claims that the marriage is "dead" do not constitute cruel and inhuman treatment (Brady v Brady, supra, at 346; Tsakis v Tsakis, 110 AD2d 763, 764; Del Gatto v Del Gatto, supra, at 545; Filippi v Filippi, 53 AD2d 658, 659). The evidence adduced at the divorce trial herein, when viewed in the light most favorable to the plaintiff wife, indicated that the parties were incompatible and that the defendant refused to communicate with the plaintiff, had minimal involvement with the parties' children and refused to have sexual relations with the plaintiff. Although this evidence portrays an unhappy, acrimonious and incompatible relationship between the parties, it does not rise to the level of endangering the plaintiff's mental or physical well-being (see, Del Gatto v Del Gatto, supra). Accordingly, the jury verdict awarding the plaintiff a divorce on the ground of cruel and inhuman treatment must be set aside and that cause of action of the plaintiff's complaint dismissed.


 In view of the fact that the portion of the judgment appealed from which awarded the plaintiff a divorce is reversed and that cause of action of the complaint dismissed, the provisions of the judgment which equitably distributed the parties' marital assets must also be reversed. Equitable distribution of the parties' marital property, unlike maintenance, custody and child support, is only available in actions where the marital relationship is terminated by divorce, dissolution, annulment or the declaration of the nullity of a void marriage, or in a proceeding to obtain a distribution of marital property following a foreign divorce judgment (Domestic Relations Law 236 [B] [5] [a]; [6] [a]; 240 [1]; Scheinkman, Practice Commentary, McKinney's Cons Laws of NY, Book 14, Domestic Relations Law C236B:23, C240:3; see also, Gunn v Gunn, 143 AD2d 393; Naughton v Naughton, 92 AD2d 914).


 With respect to the issue of custody, we agree that the award of custody of the parties' three children to the plaintiff wife would be in the best interest of the children. However, we find the trial court's determination permitting the plaintiff to relocate with the children from New York to California was inappropriate. It is well settled that a move by a custodial parent to a distant domicile, unless there are exceptional circumstances present, will not be permitted when it would effectively deprive the noncustodial parent of regular access to his or her children (see, Daghir v Daghir, 82 AD2d 191, affd 56 NY2d 938; Blundell v Blundell, 150 AD2d 321; Kozak v Kozak, 111 AD2d 842). The predominant concern is the best interest of the children, although the resolution of such disputes also "entails a careful balancing of both the rights and problems of the [children] and [their] parents" ( Schwartz v Schwartz, 91 AD2d 628, 629; Matter of Bonfiglio v Bonfiglio, 134 AD2d 426; Kozak v Kozak, supra, at 843). In the case at bar, there is an insufficient basis in the record upon which to conclude that the best interests of the children would be served by relocating to California. Although there is evidence to indicate that the plaintiff's family resided in California, there is no evidence to indicate that the plaintiff had a close relationship with her family (cf., Blundell v Blundell, supra). Moreover, such a move would obviously effectively deprive the defendant of reasonable access to his children and, in turn, deprive the children of the benefits of a regular and continuing paternal relationship (see, Daghir v Daghir, supra; cf., Blundell v Blundell, supra; Zaleski v Zaleski, 128 AD2d 865). We find that the plaintiff failed to establish exceptional circumstances which would warrant relocating the children from New York to the distant locale of California.


 Finally, we find that the trial court, in contravention of Domestic Relations Law 236 (B) (5) (g), failed to sufficiently set forth the factors it considered and the reasons for its determination with respect to its awards of maintenance and child support. Although this court has the authority to make the necessary determinations on the issues of spousal and child support (see, Kobylack v Kobylack, 62 NY2d 399), we decline to do so in this case and, accordingly, remit the matter to the Supreme Court, Orange County, for a new determination on these issues (see, Francis v Francis, 146 AD2d 669; Goldberg v Goldberg, 143 AD2d 66).






The case of Meier v. Meier is provided as part of a free educational service by J. Douglas Barics, attorney at law, for reference only. Cases such as Meier 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. Meier v. Meier is presented here to help illustrate how the law works in general, but for specific legal matters, an attorney should be consulted.


If you have any questions or comments, please feel free to contact Mr. Barics at lawyer@jdbar.com or (631) 864-2600. For more articles and information, please visit www.jdbar.com



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