Cassano v. Cassano

• Decision Date: 13 May 1985
• Citation: 111 A.D.2d 208,489 N.Y.S.2d 243
• Parties: Dominick CASSANO, Respondent, v. Mary Ann CASSANO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 243

489 N.Y.S.2d 243

111 A.D.2d 208

Dominick CASSANO, Respondent, v. Mary Ann CASSANO, Appellant.

Supreme Court, Appellate Division Second Department.

May 13, 1985.

Dikman, Dikman & Botter, Jamaica (Michael Dikman, Jamaica, of counsel), for appellant.

John J. Napolitano, Ozone Park, for respondent.

Before TITONE, J.P., and LAZER, THOMPSON and O'CONNOR, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action, the defendant wife appeals (1) as limited by her notice of appeal and brief, from so much of an amended judgment of the Supreme Court, Queens County, dated September 4, 1984, as denied her an award of maintenance, limited child support to $95 per week for support of the parties' two children, ordered the sale of the marital residence and its contents with the net proceeds to be divided equally between the parties, awarded the 1982 Chrysler to the husband and the 1972 Ford to her, ordered that the parties retain their respective pension rights unencumbered by any claim of the other, and failed to grant her counsel fees and (2) as limited by her brief, from so much of an order of the same court, dated August 1, 1984, as denied her motion for a new trial on these economic issues.

Appeal from the order dismissed (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).

Amended judgment modified, on the law and in the interest of justice, by deleting the provisions thereof which denied defendant maintenance, limited child support to $95 per week, ordered the sale of the marital residence and its contents with the net proceeds to be divided equally between the parties, awarded the 1982 Chrysler to the husband and the 1972 Ford to the wife, and ordered that the parties retain their respective pension rights unencumbered by any claim of the other. As so modified, amended judgment affirmed insofar as appealed from, and matter remitted to Special Term for a new trial on these issues before a different Judge. Pending a new determination of these issues, plaintiff shall continue to pay defendant $95 per week for the support of the two children.

Defendant is awarded one bill of costs.

The parties were married on August 9, 1964, and have two children, born November 14, 1968 and February 2, 1976. In July 1983, the husband commenced an action for divorce on the grounds of cruel and inhuman treatment and constructive abandonment. The wife thereafter counterclaimed for divorce also on the ground of cruel and inhuman treatment. Special Term dismissed the husband's complaint but granted the wife a divorce on the counterclaim and awarded her custody of the children. The court also made a determination as to financial issues, which the wife sought to set aside by way of posttrial motion. The motion was denied.

On this appeal, the wife, essentially reiterating the arguments raised on her posttrial motion, contends that she was not adequately represented by counsel and that the record established at trial was insufficient for the court to consider all the factors required by Domestic Relations Law § 236(B), and make a proper determination of the economic issues. We agree and therefore remit for a new trial and findings of fact on these issues.

An examination of the record discloses, first of all, that neither party testified as to the physical or emotional health of the children, their financial needs or the parties' standard of living prior to the divorce action, and that the wife did not even file a complete statement of net worth as of the trial date. Thus, nisi prius was unable to take into account certain factors it was obliged to consider in awarding maintenance and child support (see Domestic...