Davis v. Davis

Citation75 A.D.2d 861,427 N.Y.S.2d 891
PartiesRichard DAVIS, Appellant, v. Rose DAVIS, Respondent.
Decision Date19 May 1980
CourtNew York Supreme Court Appellate Division

Leslie I. Levine, White Plains, for appellant.

Fink, Weinberger, Fredman, Berman & Lowell, P.C., New York City (William A. Zutt and Samuel G. Fredman, New York City), for respondent.

Before LAZER, J. P., and MANGANO, GIBBONS and MARGETT, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action, plaintiff appeals from a judgment of the Supreme Court, Westchester County, dated August 31, 1978, which, inter alia, granted mutual divorces to the parties and ordered that the judgment be effective nunc pro tunc as of January 30, 1976. (By order of the Supreme Court, Westchester County, dated November 8, 1978, the Estate of Rose Davis was substituted as the defendant.)

Judgment reversed, on the law, without costs or disbursements, and action dismissed.

In 1975 the plaintiff husband commenced an action for divorce based on cruel and inhuman treatment. Several allegations were made but all were dropped at trial save a charge that the defendant wife had made unjustified and unfounded charges of adultery on several occasions and humiliated plaintiff before others. Defendant answered with a general denial but did not counterclaim for divorce.

On January 30, 1976 a hearing was held. Plaintiff testified to the allegation of unfounded charges of adultery. Defendant testified that plaintiff left the marital residence without a reason in November, 1974 and has never returned. Counsel for defendant moved to conform the pleadings to the proof and add a counterclaim for abandonment.

The parties placed an extensive financial settlement on the record, which included provisions for the payment of alimony, disposition of real estate and payment of debts.

Tragically, defendant committed suicide some two days after the hearing and prior to entry of judgment. She left a will which named her son as sole beneficiary. Plaintiff filed an election against the will as surviving spouse and received an initial distribution on December 9, 1976.

In June, 1978 a motion was made by defendant's son to enter a judgment of divorce nunc pro tunc as of January 30, 1976. The motion was granted and mutual divorces were awarded. Plaintiff's divorce was based on cruel and inhuman treatment and defendant's on the ground of abandonment. The judgment was entered nunc pro tunc as of January 30, 1976. Although the court issued no memorandum, it presumably considered the entry of judgment to be merely a ministerial act. We cannot agree and reverse.

The instant case is distinguishable from Jayson v. Jayson, 54 A.D.2d 687, 387 N.Y.S.2d 274. In Jayson (supra), the trial court had granted a divorce in favor of the plaintiff wife. The parties were directed...

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11 cases
  • Peterson v. Goldberg
    • United States
    • New York Supreme Court — Appellate Division
    • 8 Junio 1992
    ...remittitur granted, 7 N.Y.2d 987, 199 N.Y.S.2d 493, 166 N.E.2d 502; Kenzer v. Kenzer, 144 A.D.2d 439, 534 N.Y.S.2d 878; Davis v. Davis, 75 A.D.2d 861, 427 N.Y.S.2d 891, aff'd, 52 N.Y.2d 850, 437 N.Y.S.2d 77, 418 N.E.2d 670), a cause of action for equitable distribution "following a foreign ......
  • Estate of Schwartz, Matter of
    • United States
    • New York Surrogate Court
    • 26 Noviembre 1986
    ...no longer exists and a judgment cannot be entered (Cornell v. Cornell, 7 N.Y.2d 164, 196 N.Y.S.2d 98, 164 N.E.2d 395; Davis v. Davis, 75 A.D.2d 861, 427 N.Y.S.2d 891, affd. 52 N.Y.2d 850, 437 N.Y.S.2d 77, 418 N.E.2d 670) with the exception that a judgment can be entered nunc pro tunc where ......
  • In re Lefkowitz, 90 Civ. 1716 (KTD)
    • United States
    • U.S. District Court — Southern District of New York
    • 14 Mayo 1991
    ...on Mr. and Mrs. Marsh's matrimonial actions, because both of those actions abated on Mr. Marsh's death. See Davis v. Davis, 75 A.D.2d 861, 427 N.Y.S.2d 891 (2d Dep't 1980), affd., 52 N.Y.2d 850, 437 N.Y. S.2d 77, 418 N.E.2d 670 (1981) (both actions for divorce abated at the death of a spous......
  • Avery, Application of
    • United States
    • New York Surrogate Court
    • 27 Octubre 1981
    ...and an application by one of the parties for a nunc pro tunc order, and the granting thereof, was appropriate. Davis v. Davis, 75 A.D.2d 861, 427 N.Y.S.2d 891 (1980, 2nd Dept.), Jayson v. Jayson, 54 A.D.2d 687, 387 N.Y.S.2d 274 (1976, 2nd Dept.). Counsel for the Respondent, however, cites S......
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