Opinion
July 11, 1983
Appeal from the Supreme Court, Niagara County, Hannigan, J.
Present — Dillon, P.J., Doerr, Denman, Green and Moule, JJ.
Judgment unanimously affirmed, with costs. Memorandum: The trial court granted plaintiff a divorce, denied defendant's counterclaim for divorce and made an equitable distribution of the marital property. We affirm. A trial court possesses a wide discretion to determine the issue of cruel and inhuman treatment and such determinations will not lightly be overturned on appeal ( Davis v Davis, 83 A.D.2d 547). In granting plaintiff a divorce, the trial court found that defendant's excessive drinking and penchant for gambling precipitated or exacerbated family feuds throughout the marriage and caused plaintiff to develop stomach ulcers and a nervous condition for which she was once hospitalized and now requires medication. The record, therefore, supports the court's finding that defendant engaged in a course of conduct which actually endangered plaintiff's physical or mental health as to make continued cohabitation unsafe and improper ( Hessen v Hessen, 33 N.Y.2d 406; Domestic Relations Law, § 170, subd [1]). There was no proof presented, however, to entitle defendant to a divorce and his counterclaim was properly dismissed. The trial court has "broad discretion to inquire into the property of the spouses, determine its origin regardless of legal ownership and to apportion it equitably after considering the condition of the parties and the history of the marriage" ( Forcucci v Forcucci, 83 A.D.2d 169, 171). On this record we conclude that there was no abuse of discretion in the trial court's equitable distribution of the marital assets. We have examined the other points raised and find them lacking in merit.