96 A.D.2d 849 | N.Y. App. Div. | 1983
— In a matrimonial action, defendant husband appeals from a judgment of the Supreme Court, Richmond County (Sacks, J.), dated October 5,1981, which, inter alia, (1) granted a divorce to plaintiff wife on the ground of cruel and inhuman treatment, (2) ordered the marital residence to be appraised and sold, with the net proceeds to be divided equally between the parties, and (3) ordered defendant to pay plaintiff one half of the income on his pension upon his retirement in lieu of $75 per week in maintenance. Judgment modified by striking therefrom the second, third, fourth and fifth decretal paragraphs. As so modified, judgment affirmed, without costs or disbursements, and matter remitted to Special Term for further proceedings consistent herewith. Under the circumstances of this case, Special Term properly granted plaintiff a divorce on the ground of defendant’s cruel and inhuman treatment. A great deal of the alleged misconduct occurred in private with plaintiff and defendant the only witnesses. Thus, independent corroboration of the alleged incidents of misconduct was not possible. However, acts of cruel and inhuman treatment constituting grounds for divorce (see Domestic Relations Law, § 170, subd [1]) do not require corroboration (Broglio v Broglio, 44 AD2d 705). The finding of cruel and inhuman treatment is based upon the resolution of the parties’ conflicting testimony and we defer to Special Term’s determination on this issue of credibility (see Davis v Davis, 83 AD2d 547; Cataudella v Cataudella, 74 AD2d 893). However, with respect to the distribution of the marital