Dunne v. Dunne

• Decision Date: 01 April 1991
• Citation: Dunne v. Dunne, 567 N.Y.S.2d 838, 172 A.D.2d 482 (N.Y. App. Div. 1991)
• Parties: Anastasia E. DUNNE, Respondent-Appellant, v. John J. DUNNE, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 838

567 N.Y.S.2d 838

172 A.D.2d 482

Anastasia E. DUNNE, Respondent-Appellant, v.John J. DUNNE, Appellant-Respondent.

Supreme Court, Appellate Division Second Department.

April 1, 1991.

Tedone & Tedone, Albertson (Matthew A. Tedone, of counsel), for appellant-respondent.

Melvin W. Wolff, Mineola, for respondent-appellant.

Before THOMPSON, J.P., and EIBER, BALLETTA and O'BRIEN, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the defendant husband appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Nassau County(Morrison, J.), entered September 21, 1989, which, inter alia, after a nonjury trial, awarded the plaintiff wife a divorce on the ground of cruel and inhuman treatment, and the plaintiff cross-appeals from so much of the same judgment as (1) failed to make any distribution of the defendant's pension, (2) failed to equitably divide the money on deposit in the various banks and cash of the parties at the time of the commencement of the action, and (3) failed to make a determination as to the commencement date for the payment by the defendant to the plaintiff for the use and occupancy of the marital home by the defendant.

ORDERED that the judgment is modified, on the law and the facts, by deleting the third and sixth decretal paragraphs thereof; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a new determination in compliance with Domestic Relations Law § 236(B)(5)(g) with respect to the distributive award, and a new determination with respect to counsel fees.

The determination of the trial court as factfinder on the issue of cruel and inhuman treatment will not be lightly disturbed on appeal (see, Spinelli v. Spinelli, 160 A.D.2d 992, 554 N.Y.S.2d 713;see also, Rieger v. Rieger, 161 A.D.2d 227, 554 N.Y.S.2d 613;Rispoli v. Rispoli, 131 A.D.2d 556, 557, 516 N.Y.S.2d 280).Giving due deference to the trial court's assessment of the credibility of the witnesses, we are satisfied that the plaintiff sufficiently demonstrated a course of conduct by the defendant which "so endanger[ed] the physical or mental well being of the plaintiff as render[ed] it unsafe or improper for the plaintiff to cohabit with the defendant"(Domestic Relations Law § 170[1];see, Spinelli v. Spinelli, supra, 160 A.D.2d at 993, 554 N.Y.S.2d 713;Rieger v. Rieger, supra ).Despite the lengthy 40-year marriage of the parties(see, Brady v. Brady, 64 N.Y.2d 339, 486 N.Y.S.2d 891, 476 N.E.2d 290;Hessen v. Hessen, 33 N.Y.2d 406, 353 N.Y.S.2d 421, 308 N.E.2d 891), the plaintiff sufficiently established a prima facie case for divorce in her favor on the ground of cruel and inhuman treatment.

However, it was an improvident exercise of discretion to award the plaintiffcounsel fees since the record herein is devoid of any formal application and/or supporting documentation by the plaintiff's attorney regarding the legal services rendered or the time spent on the case which would justify any award of counsel fees (see, Lauricella v. Lauricella, 143 A.D.2d 642, 645, 532 N.Y.S.2d 907;Cwiklinski v. Cwiklinski, 115 A.D.2d 951, 497 N.Y.S.2d 529;Abraham v. Abraham, 28 A.D.2d 864, 865, 281 N.Y.S.2d 601).Additionally, the court failed to set forth its reasons for such an award (see, Lauricella v. Lauricella, supra ).Thus, the award of counsel fees to the plaintiff should be vacated and the matter remitted to the Supreme Court for a new determination as to counsel fees.

Furthermore, Domestic Relations Law § 236(B)(5)(g) requires that: "[i]n any decision made pursuant to this subdivision, 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"(emphasis added).In the instant case, although the court did express some of its considerations, it failed to...