Fischer v. Fischer
| Decision Date | 05 July 1974 |
| Parties | Therese R. FISCHER, Respondent, v. Erich A. FISCHER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Liebman, Leader & Lerner, Bennett Leader, Buffalo, for appellant.
Abbott, Tills, Tills & Knapp, Seth A. Abbott, Hamburg, for respondent.
Before MARSH, P.J., and WITMER, MOULE, CARDAMONE and SIMONS, JJ.
The conclusions reached by the Trial Court find ample support in the record. However, the decision pertaining to the award of alimony, child support and the direction of other payments does not comply with the requirements of CPLR 4213(b) which provides that a court's decision may be either oral or in writing 'and shall state the facts it deems essential'. While the statutory requirement does not mean that the court need set forth the evidentiary facts contained in the record, it should set forth those ultimate or essential facts relied upon in reaching its decision (George v. George, 34 A.D.2d 888, 889, 313 N.Y.S.2d 85, 86). We conclude on this record that the ultimate facts in support of the conclusions reached by the Trial Court are not sufficiently stated. However, the record here reveals the existence of such facts and in the interest of saving judicial time and avoiding multiplicity of litigation we make the following findings which the Trial Justice should have made (Good v. Good, 37 A.D.2d 682--683, 323 N.Y.S.2d 228, 229). The defendant's cash salary and bonus for the first four months ending April 30, 1973 was $5,000 or $15,000 yearly. Entertainment expense for the four months ending April 30, 1973 amounted to $1,465.70. For the nine months of 1972 entertainment expenses amounted to $4,576.52. A review of the reimbursable expense reports for the years 1972 and 1973 shows that only about one-half of the claimed entertainment expenses for these years (as shown on Exhibits No. 16 and No. 17) was supported by some evidence that the funds were actually dispersed for this purpose. We find, therefore, that one-half of the amount claimed for entertainment was available to the defendant for his own personal use, which amounted to $732.50 for the four months ending April 30, 1973 or $2,197.50 annually. Thus, the defendant had a total annual cash income of $17,197.50 ($15,000 salary and bonus plus $2,197.50 cash from entertainment expense). An examination of Exhibit No. 18 shows an estimate of monthly expenses for the wife in the amount of $890.50. We find that the needs for the wife and two children on a monthly basis are as follows: mortgage, $148.00; real estate taxes, $145.00; home owner's insurance, $7.50;...
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... ... court can, in order to save judicial time and avoid multiplicity of litigation, make the finding that the Family Court should have made (see, Fischer v. Fischer, 45 A.D.2d 917, 357 N.Y.S.2d 305). Accordingly, we find, based on the aforenoted testimony of Ms. Layish and Dr. Bogard, that the ... ...
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...the clear requirements to be met.' With respect to the requirement of CPLR 4213(b), this court has recently spoken in Fischer v. Fischer, 45 A.D.2d 917, 357 N.Y.S.2d 305, as 'The conclusions reached by the trial court find ample support in the record. However, the decision pertaining to the......
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