| Kelly v Kelly |
| 2010 NY Slip Op 00108 [69 AD3d 577] |
| January 5, 2010 |
| Appellate Division, Second Department |
| Catherine Kelly, Respondent-Appellant, v J. Brian Kelly,Appellant-Respondent. |
—[*1] Gartner & Bloom, P.C., New York, N.Y. (Stuart F. Gartner of counsel), forrespondent-appellant.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief,from so much of an order and judgment (one paper) of the Supreme Court, Orange County(Owen, J.), entered November 26, 2008, as, upon a decision of the same court dated September22, 2008, made after a nonjury trial, awarded the plaintiff a divorce on the ground of cruel andinhuman treatment, awarded the plaintiff an equitable share of 60% of the marital assets, anddirected the defendant to pay 60% of the plaintiff's reasonable medical and dental insurancebenefit costs, to the extent that such insurance benefits are not available to her through heranticipated future employment, until Medicare becomes effective, and the plaintiff cross-appeals,as limited by her brief, from so much of the same judgment as denied her requests for lifetimemaintenance and an award of an attorney's fee, and awarded her maintenance only untilDecember 31, 2008.
Ordered that the order and judgment is modified, on the law, by deleting from the fifteenthdecretal paragraph thereof the words "until Medicare become[s] effective," and substitutingtherefor the words "until December 31, 2008"; as so modified, the order and judgment isaffirmed insofar as appealed and cross-appealed from, without costs or disbursements.
The trial court has broad discretion to determine the issue of cruel and inhuman treatment.Its determination will not be lightly overturned on appeal, and we decline to do so here (see Bluth v Bluth, 45 AD3d 796,797 [2007]). Contrary to the defendant's contention, the plaintiff presented ample evidence thathe engaged in a course of conduct, including verbal and physical abuse, which was harmful toher well-being and made cohabitation unsafe (see Domestic Relations Law § 170[1]; Acito v Acito, 21 AD3d1044 [2005]; Rose v Rose, 18AD3d 852 [2005]; Habib v Habib, 278 AD2d 277 [2000]). Accordingly, the plaintiffwas properly awarded a divorce on the grounds of cruel and inhuman treatment.
The court providently exercised its discretion in awarding the plaintiff 60% of the maritalassets. When both spouses equally contribute to a marriage of long duration, the division ofmarital property should be as equal as possible (see Adjmi v Adjmi, 8 AD3d 411 [2004]). However, there is norequirement that the distribution of marital property be made on an equal basis (see Griggs v Griggs, 44 AD3d710, 713 [2007]; Chalif v Chalif, 298 AD2d 348, 349 [2002]). In making thedivision of property in this case, the court took into account, among other things, the propertyheld by each party at the commencement of the action, the length of the marriage, the limitedaward of maintenance to the [*2]wife, and the husband's morerecent work experience and greater earning potential (see Domestic Relations Law§ 236 [B] [5] [e]; Michaelessi vMichaelessi, 59 AD3d 688 [2009]).
Contrary to the plaintiff's contention, the Supreme Court providently exercised its discretionin denying her request for lifetime maintenance. Considering, among other factors, thedistribution of marital property, the duration of the marriage, the health of the parties, the presentand future earning capacity of both parties, and the ability of the plaintiff to becomeself-supporting (see Meccariello vMeccariello, 46 AD3d 640, 641-642 [2007]; Domestic Relations Law § 236 [B][6]; DiBlasi v DiBlasi, 48 AD3d403, 404 [2008]), the Supreme Court providently exercised its discretion in determining thatthe defendant's obligation to pay the plaintiff maintenance should end on December 31, 2008.However, in light of this award of limited maintenance, the court should have determined thatthe defendant's obligation to pay the plaintiff's reasonable medical and dental insurance benefitcosts also should end on December 31, 2008 (see Domestic Relations Law § 236[B] [8] [a]; Caso v Caso, 205 AD2d 866 [1994]).
Considering the parties' relative circumstances and all of the relevant factors, including thependente lite award of attorney's fees to the plaintiff in the amount of $7,500, the Supreme Courtdid not improvidently exercise its discretion in denying the plaintiff's request for an award of anattorney's fee (see O'Shea v O'Shea, 93 NY2d 187, 193 [1999]).
The remaining contentions of the parties are either unpreserved for appellate review, withoutmerit, or not properly before this Court since they are raised for the first time in their replybriefs. Dillon, J.P., Santucci, Florio and Hall, JJ., concur.