Duffy v. Duffy
| Decision Date | 09 May 1983 |
| Parties | Susan DUFFY, Respondent, v. William DUFFY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Robert E. Penn, Carle Place, for appellant.
E. Allan Riebesehl, Mineola, for respondent.
Before DAMIANI, J.P., and TITONE, GULOTTA and RUBIN, JJ.
MEMORANDUM BY THE COURT.
In an action for a divorce and ancillary relief, the defendant husband appeals, as limited by his notice of appeal and brief, from so much of a judgment of the Supreme Court, Nassau County, entered May 4, 1982, as (1) directed him to pay the plaintiff wife $300 per week for her maintenance for a period of three years, (2) upon directing that the marital home be sold, that the mortgage be satisfied with the proceeds, and that $32,000 be awarded to him from the net proceeds as his separate property, awarded the wife a one-half interest in the balance of such proceeds and directed him to satisfy any income tax liens on the marital home from his share of such proceeds, (3) awarded the wife an equal share of the proceeds from the sale of another parcel of real property and a gas and oil investment (4) directed that he pay the wife the sum of $12,000 for her counsel fees and (5) directed him to pay the sum of $4,108.50 in arrears due under a temporary maintenance order.
Judgment modified, on the law and the facts, (1) by deleting subparagraph (b) of the third decretal paragraph thereof, which directs that the balance of the net proceeds from the sale of the marital residence, after deduction of $32,000 as defendant's separate property, be equally divided between the parties, and by substituting therefor a provision directing such balance to be divided 75% to defendant and 25% to plaintiff and (2) by deleting so much of the seventh decretal paragraph as directs that the net proceeds from the sale of the parties' interest in "The Master Drilling Partnership" be divided equally, and by substituting therefor a provision that defendant receive the sum of $9,000 from such proceeds and that the balance remaining be divided 75% to defendant and 25% to plaintiff. As so modified, judgment affirmed insofar as appealed from, without costs or disbursements.
This action is governed by the provisions of Part B of section 236 of the Domestic Relations Law. Subdivisions 5 and 6 of Part B of that statute, which, inter alia, govern awards of maintenance and distribution of property in divorce actions, provide that a court "shall consider" specific factors which are enumerated in the statute. Paragraph (g) of subdivision 5 and paragraph (b) of subdivision 6 further provide that "the court shall set forth the factors it considered and the reasons for its decision and such may not be waived by either party or counsel". The Legislature, by couching these provisions in mandatory terms, intended to restrict judicial discretion and also to provide a clearer record for an appeal (see Scheinkman, Practice Commentary, McKinney's Cons Laws of NY, Book 14, Par 236B:17; Foster, Commentary on Equitable Distribution 26 New York Law School L Rev 1, 51). In the judgment under review, Special Term failed to comply with those statutory mandates. While it made brief reference in its decision to section 236 of the Domestic Relations Law, such reference clearly was not sufficient to comply with its requirements. Nevertheless, in lieu of remitting the entire matter for new findings in accordance with the statute, we modify certain portions of the judgment to conform with the overall circumstances of the parties as revealed by the record. We note that an extensive trial was held in the instant case and Special Term's decision sets forth the court's reasoning in detail. For those reasons alone, we are persuaded to modify the judgment despite Special Term's failure to comply with the clear statutory mandates. Our decision must be read as limited to the special circumstances existing in the instant matter (cf. Nielsen v. Neilsen, 91 A.D.2d 1016, 457 N.Y.S.2d 888).
The parties were married on November 25, 1978. The marriage was the second for both parties and was childless. At the time this action was commenced the parties had been married for three years. The record reveals that the plaintiff had been living...
To continue reading
Request your trial
-
O'Brien v. O'Brien
...independent determination that, in light of all the statutory factors to be considered, the award here was a proper one (Duffy v. Duffy, 94 A.D.2d 711, 462 N.Y.S.2d 240). In this case, as an alternate theory of recovery, defendant sought an award, restitutory in nature, to receive compensat......
-
Otto v. Otto
...exercised (see, Foster, Commentary on Equitable Distribution, 26 NY Law School L Rev 1, 50-51, 59 [1981]; Duffy v. Duffy, 94 A.D.2d 711, 712, 462 N.Y.S.2d 240). "Unless the trial judge reveals not only the factors he considered, but also his reasoning for the award made, intelligent review ......
-
Cohen v. Cohen
...Kobylack v. Kobylack, 62 N.Y.2d 399, 403, 477 N.Y.S.2d 109, 465 N.E.2d 829, revg. 96 A.D.2d 831, 465 N.Y.S.2d 581; Duffy v. Duffy, 94 A.D.2d 711, 712, 462 N.Y.S.2d 240). We find it to be particularly significant that plaintiff contributed to the marriage, both as a wage earner and as a home......
-
Alan G. v. Joan G.
...further consideration" (Wilson v. Wilson, 101 A.D.2d 536, 538, 476 N.Y.S.2d 120). To the extent the court relied upon Duffy v. Duffy, 94 A.D.2d 711, 462 N.Y.S.2d 240 and Kobylack v. Kobylack, 96 A.D.2d 831, 465 N.Y.S.2d 581, as authority upon which to justify non-compliance with the statuto......
-
§ 11.01 Transmutation by Title
...reimbursed for the separate property contributed. See Cunningham v. Cunningham, 482 N.Y.S.2d 148 (N.Y. App. Div. 1984); Duffy v. Duffy, 462 N.Y.S.2d 240 (N.Y. App. Div. 1983).[57] See § 11.03 infra.[58] See Young v. Young, 329 A.2d 386 (Me. 1974).[59] See: Louisiana: Young v. Young, 549 So.......
-
§ 13.02 Division of Property at Divorce
...more restrictive definition of a "short" marriage. See Olinger v. Olinger, 707 P.2d 64 (Ore. App. 1985).[345] See, e.g., Duffy v. Duffy, 462 N.Y.S.2d 240 (N.Y. App. Div. 1983). See also, cases cited in Ns. 181-186 infra.[346] See N.Y. Dom. Rel. L. § 236B.[347] Borg v. Borg, 491 N.Y.S.2d 659......