D'Amato v. D'Amato

• Decision Date: 08 August 1983
• Citation: 466 N.Y.S.2d 23,96 A.D.2d 849
• Parties: Stella D'AMATO, Respondent, v. Donald D'AMATO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 23

466 N.Y.S.2d 23

96 A.D.2d 849

Stella D'AMATO, Respondent, v. Donald D'AMATO, Appellant.

Supreme Court, Appellate Division Second Department.

Aug. 8, 1983.

Richard R. Reigi, Staten Island, for appellant.

Jerome M. Neuberger, Staten Island, for respondent.

Before O'CONNOR, J.P., and BRACKEN, NIEHOFF and BOYERS, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action, defendant husband appeals from a judgment of the Supreme Court, Richmond County, dated October 5, 1981, which, inter alia, (1) granted a divorce to plaintiff wife on the ground of cruel and inhuman treatment, (2) ordered the marital residence to be appraised and sold, with the net proceeds to be divided equally between the parties, and (3) ordered defendant to pay plaintiff one-half of the income on his pension upon his retirement in lieu of $75 per week in maintenance.

Judgment modified by striking therefrom the second, third, fourth and fifth decretal paragraphs. As so modified, judgment affirmed, without costs or disbursements, and matter remitted to Special Term for further proceedings consistent herewith.

Under the circumstances of this case, Special Term properly granted plaintiff a divorce on the ground of defendant's cruel and inhuman treatment. A great deal of the alleged misconduct occurred in private with plaintiff and defendant the only witnesses. Thus, independent corroboration of the alleged incidents of misconduct was not possible. However, acts of cruel and inhuman treatment constituting grounds for divorce (see Domestic Relations Law, § 170, subd. 1), do not require corroboration (Broglio v. Broglio, 44 A.D.2d 705, 354 N.Y.S.2d 688). The finding of cruel and inhuman treatment is based upon the resolution of the parties' conflicting testimony and we defer to Special Term's determination on this issue of credibility (see Davis v. Davis, 83 A.D.2d 547, 441 N.Y.S.2d 26; Cataudella v. Cataudella, 74 A.D.2d 893, 425 N.Y.S.2d 863).

However, with respect to the distribution of the marital property, it does not appear that Special Term complied with the procedures for determining equitable distribution outlined in Part B of section 236 of the Domestic Relations Law. Therefore, the case is remitted to Special Term for an evidentiary hearing and findings of fact. Special Term first must determine which of the parties' assets constitute marital property subject to equitable distribution (see Domestic Relations Law, § 236, Part B, subd. 1, par. c).

It would appear that the major assets constituting marital property are the marital residence and defendant's pension. A determination must be made at to the net value of each asset before determining the distribution thereof. In this regard, Special Term must make explicit findings of fact as to the reasons for the distribution of each asset constituting marital property (Domestic Relations Law, § 236, Part B, subd. 5, par. g), by utilizing the criteria in paragraph d of subdivision 5 of Part B of section 236 of the Domestic Relations Law (see Duffy v. Duffy, 94 A.D.2d 711, 462 N.Y.S.2d 240 (1983)).

If the marital residence has already been sold, Special Term should determine the net proceeds available for distribution. Since the record indicates that the parties' home required substantial repairs in order to put it in saleable condition, the cost of such repairs should be equitably borne by the parties. It is of course incumbent upon Special Term to make specific findings of fact to support the distribution of the proceeds from the sale of the marital residence, pursuant to paragraph g of subdivision 5 of Part B of section 236 of the Domestic Relations Law. If the marital residence has not yet been sold it should be appraised, if that has not already been done, and Special Term should retain jurisdiction to insure...