Cuevas v. Cuevas

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: TITONE
• Citation: Cuevas v. Cuevas, 488 N.Y.S.2d 725, 110 A.D.2d 873 (N.Y. App. Div. 1985)
• Decision Date: 29 April 1985
• Parties: Thomas CUEVAS, Respondent, v. Gloria CUEVAS, Appellant.

Page 725

488 N.Y.S.2d 725

110 A.D.2d 873

Thomas CUEVAS, Respondent, v. Gloria CUEVAS, Appellant.

Supreme Court, Appellate Division Second Department.

April 29, 1985.

Bender & Bodnar, White Plains (Susan L. Bender, White Plains, of counsel), for appellant.

Martin J. Rosen, White Plains, for respondent.

Before MOLLEN, P.J., and TITONE, LAZER and RUBIN, JJ.

MEMORANDUM BY THE COURT.

In an action for divorce, the defendant wife appeals, as limited by her brief, from (1) so much of a judgment of the Supreme Court, Westchester County, dated February 17, 1984, as, upon dissolving the marriage, awarded her only 25% of the net proceeds from the eventual sale of the marital residence, made no equitable distribution of the other marital assets, and did not award maintenance or arrears; and (2) so much of an order of the same court, entered June 26, 1984, as denied that branch of her motion which sought vacatur of the judgment of divorce and "new findings of fact [and] conclusions of law" with respect to the economic issues presented in the action.

Judgment reversed insofar as appealed from, on the law and in the interest of justice, without costs or disbursements, and matter remitted to Special Term for a new trial on the economic issues presented herein.

Appeal from the order dismissed, without costs or disbursements (see Jensen v. Union Ry. Co., 260 N.Y. 1, 4-5, 182 N.E. 226; Citizens Trust Co. v. Prescott & Son, Inc., 221 App.Div. 426, 223 N.Y.S. 191).

On December 18, 1971, Thomas Cuevas, the plaintiff, and Gloria Cuevas, the defendant, were married, having previously lived together since 1960 or 1961. They have two children, one of whom, their daughter Deborah, was emancipated by the time this action was tried.

Problems developed between the parties and, in May 1979, the plaintiff left the marital residence. They have not lived together since that time.

On or about July 19, 1982, the plaintiff commenced this action by the service of a "Summons with Notice", stating as grounds for divorce, cruel and inhuman treatment and adultery. The defendant answered and counterclaimed for divorce, alleging abandonment.

This matter proceeded to trial on January 16, 1984, at which time counsel informed the court that the parties had agreed to stipulate as follows:

"[T]he Defendant * * * will not contest the Plaintiff's request for a decree of absolute divorce predicated on the first cause of action [cruel and inhuman treatment], and that the Plaintiff will withdraw his Verified Reply and not oppose the defendant's request for a divorce predicated upon the sole cause of action within the Verified Answer sounding in abandonment".

The parties also agreed to stipulate as follows:

"[In] regard to the minor child Thomas * * * that there shall be joint custody with respect to said child. That all major decisions concerning the general health, education and welfare of the child shall be made jointly by the parties, but that it is specifically understood that the child shall physically reside with the Plaintiff father, subject to visitation rights either to be spelled out on the record by and between Counsel, or in the alternative to be fixed by this Court".

The court conducted an inquest at which the parties, inter alia, testified in support of their respective causes of action for divorce and withdrew, with prejudice, their opposition to one another's cause. At the conclusion of the inquest, the court stated:

"[W]ith respect to the respective testimonies as given with regard to divorces that each party seeks, we would grant each of their applications. And grant such divorces on the basis of testimony given today to this Court, and we will, of course, accept in full the stipulation that has been entered into by the parties as well".

The court also advised counsel that when the proceedings resumed that afternoon they should be prepared to proceed to trial on the remaining issues, viz., equitable distribution, maintenance, and arrears.

Upon reconvening a few hours later, the defendant's counsel advised the court that his client no longer wanted him to represent her primarily because counsel "produced no proof that could be used * * * to establish her net worth and the marital assets of her husband". Counsel added:

"[T]his is an essential matter, as far as she is concerned, in this case. She had agreed previously to a mutual judgment of divorce and joint custody of her infant child. I, therefore, ask that the Court discharge me, permit Mrs. Cuevas to engage counsel to represent her in this matter".

A six-week adjournment was requested to enable defendant to retain counsel on the remaining economic issues.

An extensive colloquy concerning the requested adjournment ensued among counsel for both sides and the court. In support of the request, counsel for the defendant, inter alia, argued that "contrary to what my opponent has said, there has been no adequate disclosure * * * To this date I have received nothing". Moments later, counsel added that his client "has no records. The only thing we have is a statement that he [the plaintiff] made back in 1980 as to what his--his statement as to his net worth when he was negotiating with some prior attorneys. That's all". Expressing his frustration over his inability to obtain full disclosure, notwithstanding his efforts, counsel said, "I don't know what we have to do to get the facts with respect to the economic background of the Plaintiff".

In response, the court presented the defendant with three options:

"One is to reconsider and continue Mr. Berman as your attorney. Secondly, you will represent yourself. Thirdly, I'll give you time to call an attorney right now. I will tell you now that if you wish another attorney to represent you, I'll permit that. If you choose to. He may be here or she may be here tomorrow morning to commence this trial. I will not delay it. I will not adjourn it. I will not afford the new attorney any time, but tomorrow to start this case. Now those are your options. I will not allow for any reason to come into this court, and I dare say no judge would allow, once the case has been assigned for trial that, it be adjourned for the reasons you have set forth in this matter. So I'll give you time to talk to Mr. Berman again. We'll take a very short recess, and then you can tell me what you choose to do".

The defendant continued to insist that she did not want her then attorney to represent her, to which the court answered:

"At this point, Miss [sic ] Cuevas, the Court would then permit this case to continue with or without an attorney on your part, if that's what you choose to do * * * And I've given you an opportunity to go out and reconsider about this, and you tell me you still do not wish to have Mr. Berman represent you. You have that right. Nobody will require you or force you to have Mr. Berman if you choose not to. But your alternatives are what I told you. Either represent yourself in this matter, or the second is that you will engage an attorney to be here tomorrow morning to commence the trial and represent you in this action. But I tell you in advance, I will not permit a delay or an adjournment of the case so that the new attorney on the scene would ask for time so that he might familiarize himself with the file. I will not permit that".

The court again denied the defendant's request for "more time to get myself an attorney", and adjourned the matter at approximately 4:00 P.M., directing the defendant to return the next morning at 9:30 A.M. and warning her that the only excuses which the court would accept were death or hospitalization "with a serious illness".

The following morning, the defendant advised the court that she was unable to retain another attorney, and that she had not reconsidered her decision to discharge her attorney. The court directed the defendant to present "any evidence or testimony you would wish to give this morning", which she obviously did not have the ability to do. The court therefore concluded:

"[Any] actions or any proof that you would make in this case is not before the Court on any issues raised by your Pleadings, and any actions raised by your Pleadings at this point are dismissed for lack of prosecution and your default in proceeding with the case".

The plaintiff husband presented evidence only "as to one very limited issue", viz., the sale of the marital residence and the distribution of the net proceeds.

By judgment dated February 17, 1984, the parties were granted dual divorces. The judgment also provided, inter alia, that the parties were to have joint custody of their minor child Thomas; that Thomas was to reside with the plaintiff; that the defendant was to have "liberal and reasonable visitation privileges" with Thomas; that the marital residence in Pelham Manor was to be sold at a mutually agreeable price; that the plaintiff was to deduct from the gross proceeds of this sale any amounts expended by him in the repair, improvement or maintenance of the residence in the 60-day period after entry of the judgment; and that, after deduction of the mortgage and real estate commissions, if any, the net proceeds of the sale were to be divided as follows: 75% to the plaintiff and 25% to the defendant. The defendant appeals from the judgment to the extent that Special Term determined, or failed to determine, the economic issues between them, in essence contending that the denial of her request for a reasonable adjournment to retain counsel deprived her of a meaningful opportunity to present her case on these issues.

The law is clear that applications for adjournments for any purpose are ordinarily addressed to the trial court's sound discretion (Matter of Anthony M., 63 N.Y.2d 270, 283, 481 N.Y.S.2d 675, 471 N.E.2d 447; People v. Spears, 64 N.Y.2d 698, 485 N.Y.S.2d 521, 474 N.E.2d 1189 [1984]; People v. Africk, 107 A.D.2d 700, 484 N.Y.S.2d 55 [2d Dept., 1985]; Spodek v. Lasser Stables, 89 A.D.2d 892, 453...