Opinion
March 18, 1991
Appeal from the Supreme Court, Westchester County (Coppola, J.).
Ordered that the judgment is modified, on the facts and in the exercise of discretion, by deleting from the third decretal paragraph the words "on alternative weekends" and substituting therefor the words "on three weekends each month through the end of the calendar year 1993 and on alternative weekends thereafter"; as so modified, the judgment is affirmed; and it is further,
Ordered that the appeal from the order entered August 22, 1989, is dismissed, as abandoned; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
A trial court's findings of fact on the issue of cruel and inhuman treatment will not lightly be overturned on appeal (see, Rispoli v Rispoli, 131 A.D.2d 556; Davis v Davis, 83 A.D.2d 547). Under the circumstances of this case, the trial court properly granted the wife a divorce (see, Domestic Relations Law § 170).
Likewise, the findings of the trial court with regard to matters of custody must be accorded great respect, and should not be set aside in the absence of articulated reasons therefor (see, Eschbach v Eschbach, 56 N.Y.2d 167, 173). While both parties appear to be capable and loving parents, we find no basis to upset the trial court's conclusion that joint custody is inappropriate because of the parties' inability to put aside their differences for the good of the children (see, Braiman v Braiman, 44 N.Y.2d 584, 589-590; Trolf v Trolf, 126 A.D.2d 544). Moreover, given her role as the primary care provider and her availability to the children, custody was properly awarded to the wife. In addition, the award of exclusive use and occupancy of the marital residence to the custodial parent until the younger child finishes kindergarten, at which time the house is to be sold and the proceeds divided equally between the parties, was reasonable under the circumstances (see, Wood v Wood, 139 A.D.2d 506; Van Housen v Van Housen, 114 A.D.2d 411).
However, we modify the judgment to provide for visitation on three weekends per month until the end of 1993, when the wife is expected to return to full-time employment, based upon her acknowledgment that this would be an appropriate arrangement. To the extent that the issues of visitation on school holidays and spring and winter recesses was not raised before the trial court, we decline to address them. The husband may seek relief in that respect from the trial court.
Further, the court properly determined the amount of maintenance and child support based upon the husband's ability to provide for his wife and children, rather than his claimed current economic situation (see, Gunn v Gunn, 143 A.D.2d 393, 395; see also, Hickland v Hickland, 39 N.Y.2d 1, cert denied 429 U.S. 941; Kay v Kay, 37 N.Y.2d 632, 637). Thompson, J.P., Rosenblatt, Miller and Ritter, JJ., concur.