Bizzarro v. Bizzarro

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before MAIN
• Citation: Bizzarro v. Bizzarro, 484 N.Y.S.2d 144, 106 A.D.2d 690 (N.Y. App. Div. 1984)
• Decision Date: 06 December 1984
• Parties: Carol BIZZARRO, Respondent-Appellant, v. Saverio A. BIZZARRO, Appellant-Respondent.

Page 144

484 N.Y.S.2d 144

106 A.D.2d 690

Carol BIZZARRO, Respondent-Appellant, v. Saverio A. BIZZARRO, Appellant-Respondent.

Supreme Court, Appellate Division Third Department.

Dec. 6, 1984.

Tippins & Phelan, Troy (Timothy M. Tippins, Troy, of counsel), for appellant-respondent.

Andrew F. Capoccia, P.C., Albany (Ellen S. Ross, Albany, of counsel), for respondent-appellant.

Before MAIN, J.P., and MIKOLL, YESAWICH and HARVEY, JJ.

MEMORANDUM DECISION.

Cross appeals from a judgment of the Supreme Court which, inter alia, granted dual divorces, entered October 17, 1983 in Rensselaer County, upon a decision of the court at Trial Term, without a jury.

The parties cross-appeal from a judgment of divorce granted to defendant on the grounds of adultery and cruel and inhuman treatment and to plaintiff on the ground of cruel and inhuman treatment, and which also determined, inter alia, maintenance, child support, equitable distribution and counsel fees. There is no challenge on these cross appeals to the award of custody and visitation rights regarding the parties' two minor children. We note at the outset that even a cursory review of the record reveals that the testimony during the trial was contradictory, confusing and incomplete. This record renders it quite difficult to make an accurate assessment of the parties' true relationship and financial conditions. It is with these caveats that we address the merits of these appeals.

The parties were married on February 6, 1971, and they own a home in the City of Troy which was purchased with about $17,000 from defendant's father and a $10,000 loan secured by a mortgage. Defendant works for the Rensselaer County Board of Elections and also owns and operates a funeral home, which was his father's business until it was given to defendant during the marriage. Defendant's salary from Rensselaer County is about $13,000, although the precise amount is not readily discernible from the record. Through this employment, defendant also contributes to a pension fund which is unvested and which defendant could not value. It appears that the funeral home was built with funds from defendant's father that were meant as a gift to defendant and his family. Defendant's profit from the funeral home business has been reported at about $5,500 for the past couple of years, although it appears that defendant has paid substantial amounts of personal expenses, perhaps $15,000, through the business and might have failed to record all business income.

Plaintiff has performed limited seasonal part-time work but, for the most part, has remained home in the traditional role of housewife and mother. Her contributions to the funeral home business are the subject of substantial dispute, but it is evident that any success enjoyed by the business is primarily the result of defendant's work and of good will developed when defendant's father operated the business. Plaintiff receives food stamps, financial assistance from her family, and payments for child support from defendant.

The trial court, inter alia, (1) granted defendant a divorce on the ground of adultery; (2) ordered that defendant pay to plaintiff $30 per week in maintenance until January 1, 1985; (3) ordered that defendant pay $75 per week as child support, to be increased to $100 per week on January 1, 1985; (4) ordered that plaintiff have exclusive use of the marital residence until the occurrence of certain events but that the marital residence be held as tenants in common with each party having a 50% interest; (5) ordered that defendant pay the expenses of maintaining the marital residence; (6) ordered that defendant pay a percentage of his pension when received; (7) declared the funeral home to be defendant's property and granted plaintiff a distributive award of $5,000; and (8) ordered that defendant pay $2,500 to plaintiff for her counsel fees.

First, we are of the view that the trial court erred in granting defendant's motion at the end of the trial to conform the pleadings to the proof so as to make out a cause of action against plaintiff for adultery. Although defendant's counterclaim for divorce on the ground of cruel and inhuman treatment placed plaintiff on notice that her alleged sexual misconduct would be at issue in the trial, defendant's motion at the conclusion of the trial prejudiced plaintiff, who was thereby prevented from raising the statutory defenses to adultery provided in section 171 of the Domestic Relations Law (see Maulella v. Maulella, 90 A.D.2d 535, 537, 455 N.Y.S.2d 103). Accordingly, defendant's motion in this regard should have been denied and that portion of the judgment which grants defendant a divorce on the ground of adultery must be reversed. There is, however, sufficient evidence to support the granting of divorces to both parties on the ground of cruel and inhuman treatment.

We next address those arguments which concern the disposition of property. It is settled that a court is not bound by one's own account of his finances and may, if a version of one's finances is patently unbelievable, find the income to be higher than that claimed (Matter of Vetrano v. Calvey, 102 A.D.2d 932, 933, 477 N.Y.S.2d 522). We would not hesitate to do such in this case, inasmuch as defendant's...