| Helm v Helm |
| 2012 NY Slip Op 01395 [92 AD3d 1164] |
| February 23, 2012 |
| Appellate Division, Third Department |
| Dawn M. Helm, Respondent, v Matthew Helm,Appellant. |
—[*1] Becker & Becker, Albany (Akilah Rawlins of counsel), for respondent. Mark J. Gaylord, Schenectady, attorney for the children.
Malone Jr., J. Appeal from a judgment of the Supreme Court (Powers, J.), entered May 21,2010 in Schenectady County, granting plaintiff a divorce and ordering, among other things,primary physical custody of the parties' children to plaintiff, upon a decision of the court.
Plaintiff and defendant married in 1993 and are the parents of three children (born in 1994,1995 and 1997).[FN1]In November 2007, plaintiff commenced this action for divorce on the ground of cruel andinhuman treatment, alleging that defendant controlled and harassed her. Following a trial,Supreme Court granted plaintiff a divorce and awarded the parties joint legal custody of thechildren, with primary physical custody to plaintiff. Defendant appeals, arguing, as limited by hisbrief, that plaintiff failed to prove that she was entitled to a divorce and that Supreme Court erredby awarding physical custody of the children to plaintiff.
In an action for divorce, to prevail on the ground of cruel and inhuman treatment, " 'the [*2]party seeking the divorce must establish that the other party'sconduct so threatened his or her physical or mental well-being that it would be unsafe orimproper to continue to cohabit with the offending party' " (Redgrave v Redgrave, 304AD2d 1062, 1063 [2003], quoting Shortis v Shortis, 274 AD2d 880, 880-881 [2000]; accord Armstrong v Armstrong, 72AD3d 1409, 1411 [2010]; see Domestic Relations Law § 170 [1]). SupremeCourt is vested with broad discretion in determining whether a spouse's conduct rises to the levelof cruel and inhuman treatment, and its factual determinations and assessment of witnesscredibility will be accorded deference (see Bennett v Bennett, 82 AD3d 1294, 1295 [2011]; Armstrongv Armstrong, 72 AD3d at 1411).
Here, plaintiff's proof, which Supreme Court specifically found to be more credible thandefendant's, established defendant's controlling nature and ongoing abusive behavior towardplaintiff throughout their marriage. Plaintiff testified that defendant's behavior caused her tosuffer stress, anxiety, headaches and loss of appetite, among other ailments. According toplaintiff's testimony, over the course of the parties' marriage, defendant unilaterally determinedhow the children would be disciplined and where and when they would spend their holidays, andcontrolled the amount of time she and the children spent with plaintiff's family. Plaintiff testifiedthat, after she announced her intention to divorce him, defendant's behavior escalated to the pointwhere he deprived her of privacy by following her into the bathroom and remaining there whileshe attended to personal needs and by reviewing her cell telephone call log on a daily basis.During one argument, according to plaintiff, defendant "trapped" her in the house by taking hercar keys and cell telephone and prevented her from going to a neighbor's house.
Defendant's controlling behavior continued even after plaintiff vacated the marital residence.For instance, because all of the couple's vehicles were registered in defendant's name, defendantdenied plaintiff permission to use any of them after she left and he disconnected the service toher cell telephone. On one occasion when plaintiff arrived to pick up the children, an argumentensued during which defendant again took plaintiff's car keys, forcibly pulled plaintiff away froma window when she attempted to signal for help and then threw her onto a couch. According toplaintiff, whose testimony the court expressly credited, defendant then threatened to kill her andattempted to choke her, stopping only when one of the parties' children entered the room.Considering the proof in the record as a whole, and deferring to Supreme Court's finding thatplaintiff's testimony was more credible than defendant's, we find that the court did not abuse itsdiscretion by finding that defendant's conduct threatened plaintiff's physical or mental well-beingsuch that it would be unsafe or improper for her to continue to live with him (see Sanacore v Sanacore, 74 AD3d1468, 1470 [2010]; Kung vKung, 69 AD3d 1295, 1295-1296 [2010]).
As for defendant's contention that Supreme Court erred by granting plaintiff primary physicalcustody of the children, it is well settled that, in custody matters, the court's overriding concern isthe best interests of the children, "which requires consideration of all relevant factors including'the parents' ability to provide a stable home environment for the child[ren], the child[ren's]wishes, the parents' past performance, relative fitness, ability to guide and provide for thechild[ren's] overall well-being, and the willingness of each parent to foster a relationship with theother parent' " (Matter of Shearer vSpisak, 90 AD3d 1346, 1347 [2011], quoting Matter of Rundall v Rundall, 86 AD3d 700, 701 [2011]; see Porcello v Porcello, 80 AD3d1131, 1133 [2011]). The court's determination in that regard will not be disturbed uponappeal so long as it has a sound and substantial basis in the record (see Matter of Hughes v Hughes, 80AD3d 1104, 1105 [2011]; Malcolmv Jurow-Malcolm, 63 AD3d 1254, 1256 [2009]).
Here, Supreme Court issued a thorough and well-reasoned decision and it is apparent [*3]that it considered all of the relevant factors before finding that thechildren's best interests were served by an award of primary physical custody to plaintiff.Notably, the evidence established that plaintiff had been the children's primary caregiver for mostof their lives and that primary physical custody to her provided the children with more stability.The evidence also demonstrated that plaintiff was actively involved in the children's educationand coordinated their medical care, and her longstanding employment schedule enabled her tocare for the children after school. Defendant's work history, however, had not been stable and hiscurrent employment schedule required him to work until 8:00 p.m. on most days, which meantthat he was unavailable to care for the children in the evenings. The evidence also indicated thatdefendant tended to not interact with the children during his visitation, instead preferring thatthey watch television. Defendant was not aware of the names of the children's teachers, did notattend parent-teacher conferences and made little effort to attend their extracurricular activities,such as concerts and athletic games. In addition, the court noted that plaintiff allowed thechildren to spend a holiday with defendant that fell within her allotted visitation time, and sheencouraged the oldest child to improve her strained relationship with her father and spend moretime with him. Although plaintiff was not without faults, the evidence in the record as a wholeprovides a sound and substantial basis for the court's finding that an award of primary physicalcustody to her was in the children's best interests.[FN2]Finally, while not determinative, we note that the attorney for the children fully supported anaward of primary physical custody to plaintiff (see Matter of Siler v Wright, 64 AD3d 926, 929 [2009]).
Mercure, A.P.J., Peters, Kavanagh and McCarthy, JJ., concur. Ordered that the judgment isaffirmed, without costs.
Footnote 1: Inasmuch as the oldest child hasreached the age of 18, the determination of custody with respect to her is moot (see Slater-Mau v Mau, 4 AD3d658, 659 [2004]).
Footnote 2: While it does not appear thatdefendant is challenging it, to the extent that he does, Supreme Court's determination that theparties' relationship is not "so acrimonious that they are incapable of putting aside theirdifferences" (Webster v Webster, 283 AD2d 732, 734 [2001] [internal quotation marksand citation omitted]) is supported by the record and, thus, the award of joint legal custody wasappropriate.