[DOWNLOAD] "Betty J. Muscarella v. Louis Muscarella" by Supreme Court of New York ~ Book PDF Kindle ePub Free

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• Title: Betty J. Muscarella v. Louis Muscarella
• Author : Supreme Court of New York
• Release Date : January 01, 1983
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 62 KB

Description

Judgment unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: Defendant husband appeals from a judgment which, among other things, denied his counterclaim for divorce based upon cruel and inhuman treatment, required him to pay $90 per week in support to his wife and son and imposed a constructive trust on all of his real property. A trial court possesses wide discretion to determine the issue of cruel and inhuman treatment and such determinations will not be lightly overturned on appeal (Davis v Davis, 83 A.D.2d 547; McKay v McKay, 78 A.D.2d 676). We have previously held that a divorce will not be granted simply because a marriage is "dead" (Kennedy v Kennedy, 91 A.D.2d 1200); the spouse seeking a divorce on the basis of cruel and inhuman treatment must establish a course of conduct which actually endangers his/her physical or mental health (Hessen v Hessen, 33 N.Y.2d 406; Buckley v Buckley, 93 A.D.2d 973; Kennedy v Kennedy, supra; Pajak v Pajak, 85 A.D.2d 923, affd 56 N.Y.2d 394). In denying defendants counterclaim, the trial court found that plaintiffs actions did not rise to the necessary level to constitute cruel and inhuman treatment and the record supports such a finding. Defendant contends that a constructive trust should not have been imposed on all of his real property. Plaintiff and defendant owned their first marital premises jointly. In order to avoid liability on a debt owed by plaintiffs family business and personally guaranteed by her, plaintiff transferred her one-half interest in the marital premises to defendant with the understanding that he would reconvey it to her at a later time. Where an action is brought to compel reconveyance of property which admittedly was transferred with the intent to defraud a legitimate creditor, the basis of such a suit is immoral and one to which equity will not lend its aid (Farino v Farino, 88 A.D.2d 902; Janke v Janke, 47 A.D.2d 445, affd 39 N.Y.2d 786; see, also, Fishman v Fishman, 57 A.D.2d 606; Guggenheim v Lieber, 42 A.D.2d 778). Although neither party raised the issue of unclean hands or illegality, this court is not precluded from raising [93 A.D.2d 993 Page 994]

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