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While it may be boorish and bigoted for a husband to refer to his wife as a “Japanese Polack,” such behavior does not constitute cruel and inhuman treatment for purposes of a divorce. But an extramarital affair is another story. So said the New York Supreme Court’s Appellate Division, 3rd Department, Thursday in a pair of unrelated matrimonial cases involving a man with poor taste and a woman with tastes for another man. The 3rd Department Thursday reversed the trial court in the name-calling case, Omahen v. Omahen, 88607, but upheld a finding of cruelty in the adultery matter, Gentner v. Gentner, 87977. Omahen involves a woman of Japanese descent, Sueko Omahen, who sued for divorce in 1999. Mrs. Omahen alleged cruel and inhuman treatment on the part of her husband, James L. Omahen, and following a nonjury trial was granted a divorce on those grounds. Mr. Omahen then appealed, arguing that the evidence presented in Delaware County Supreme Court was insufficient to support a finding of cruel and inhuman treatment. Thursday, the 3rd Department agreed. Writing for the unanimous court, Justice Thomas E. Mercure cited the 3rd Department’s decision in Wilson v. Wilson, 244 AD2d 646 1997) where it said cruelty implies an intent to inflict suffering to the extent that the victim’s health or safety is jeopardized. Here, the court said, Mrs. Omahen admitted that Mr. Omahen never hit her or swore at her and directed many of his “bigoted” and “boorish” remarks toward third parties. And while Mr. Omahen did have an “unfortunate tendency to ridicule [his wife] concerning her difficulties understanding American culture” and called her a “Japanese Polack,” Mrs. Omahen acknowledged that “she had initially thought it was funny” and never asked her husband to stop. Further, Justice Mercure said there was no adverse physical impact that would suggest cruel and inhuman treatment. He noted that Mrs. Omahen had gained 14 pounds over a span of four to five years, but then lost most of the extra weight. “Although [Mrs. Omahen] testified that [Mr. Omahen's] conduct would make her feel lonely and isolated and that his taunts often made her cry, there was no apparent ill effect on plaintiff’s health,” Justice Mercure said. Joining the opinion were Presiding Justice Anthony V. Cardona and Justices John A. Lahtinen and Robert S. Rose. In Wilson v. Wilson, the case cited as precedent on the need to show conduct injurious to health, the 3rd Department affirmed a decision by Justice Rose, who at that time was on the trial bench. Aaron A. Dean of Sidney, N.Y., appeared for Mr. Omahen. Mrs. Omahen was represented by Thomas A. Vitanza of Vitanza, Shabus & Fertig in Norwich, N.Y. ADULTERY ‘CRUEL’ The court reached a different conclusion in Gentner v. Gentner. There, Gloria A. Gentner sued for divorce based on cruel and inhuman treatment. Her husband, Michael J. Gentner, counterclaimed on the same grounds. The New York Supreme Court granted judgment for Mr. Gentner. On appeal, Mrs. Gentner argued that she should have been the one granted a divorce on those grounds. In an opinion by Justice D. Bruce Crew III, the 3rd Department said that evidence of Mrs. Gentner’s adulterous relationship with a paramour who is now her husband “provides a sufficient ground upon which to grant a divorce upon cruel and inhuman treatment.” Additionally, the 3rd Department reversed the trial court and held that the couple’s gun collection and Mr. Gentner’s individual retirement account are marital property. The panel also included Justices Lahtinen, Karen K. Peters, Edward O. Spain and Carl J. Mugglin. Mr. Gentner appeared pro se. Mrs. Gentner was represented by Susan B. Milstein of Milstein & Milstein in Albany, N.Y.

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