Forcucci v. Forcucci

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before SIMONS; SIMONS
• Citation: Forcucci v. Forcucci, 83 A.D.2d 169, 443 N.Y.S.2d 1013 (N.Y. App. Div. 1981)
• Decision Date: 13 November 1981
• Parties: Mary A. FORCUCCI, Appellant, v. Anthony J. FORCUCCI, Respondent.

Page 1013

443 N.Y.S.2d 1013

83 A.D.2d 169

Mary A. FORCUCCI, Appellant, v. Anthony J. FORCUCCI, Respondent.

Supreme Court Appellate Division Fourth Department.

Nov. 13, 1981.

Findlay, Hackett, Reid & Wattengel, Niagara Falls, for appellant (Glenn Hackett, Niagara Falls, of counsel).

Joseph W. Carosella, Niagara Falls, for respondent (Jonathan Sax, Niagara Falls, of counsel).

Before SIMONS, J. P., and HANCOCK, DENMAN, MOULE and SCHNEPP, JJ.

SIMONS, Justice Presiding.

Plaintiff commenced this action for a divorce based upon cruel and inhuman treatment and defendant has counterclaimed for divorce on the same grounds. Both parties ask for maintenance and equitable distribution of the marital property. The issue raised upon this appeal is the effect to be given a 1971 judgment of separation obtained by plaintiff which directed her husband to pay alimony, to purchase hospitalization insurance for her and to maintain insurance on his life at her expense and for her benefit. It is the claim of plaintiff that the judgment of separation precludes defendant's claim against property known as "The Niagara Nut Shoppe", a business which she started in 1961 and which she has expanded since the judgment of separation. Prior to the start of the trial, the justice presiding ruled that the economic aspects of the action were to be decided pursuant to the provisions of The Equitable Distribution Law (Domestic Relations Law, § 236, Part B), and on stipulation of the parties, he granted leave to appeal, stayed further proceedings in the divorce action and stayed disposition of the business or its assets.

Inasmuch as the action was commenced subsequent to July 19, 1980, Part B of the revised statute is to be applied to the action. The more specific issue, not yet addressed by the Trial Court, is whether the business and business property, which defendant alleges are worth some $65,000, are to be considered marital property in view of the prior judgment of separation. We affirm and remand the matter to the Trial Court to determine whether distribution is appropriate, considering the prior judgment along with the other relevant circumstances of the marriage as set forth in the statute, and, if so, what form the relief shall take (see Domestic Relations Law, § 236, Part B, subd. 5, par. d).

The facts may be stated briefly. The parties were married in 1943 and have one daughter, now emancipated. Their matrimonial difficulties apparently started many years ago and have resulted in numerous disputes and several separations. Plaintiff alleges that she started The Niagara Nut Shoppe in 1961 because defendant failed adequately to support her and that the business and the real property it occupies have always been in her name. In 1971 plaintiff obtained a judicial separation, but in 1972 or 1973 the parties reconciled and resumed living together. In 1976 they again separated and subsequently reconciled. During that separation plaintiff commenced an action for divorce by serving a summons on defendant, but counsel agree that the 1976 action was abandoned and properly should be dismissed (see CPLR 3215, subd. c; 7 Carmody-Wait 2d, N.Y.Prac., § 44:2). The present action was commenced in July, 1980, after the parties had separated again, and therefore the rules of equitable distribution should be applied.

The Equitable Distribution Law was enacted as the result of a growing realization that the marriage relationship is also an economic partnership and that when a marriage ends there should be some comprehensive and fair approach to the economic incidents of divorce. That being so, it follows that property acquired during the marriage should be equitably distributed upon divorce, and that alimony or maintenance should rest largely on an actual need and ability to pay basis (see, generally, Governor's Approval Memorandum, McKinney's Session Laws, p. 1863; 2 Foster-Freed, Law and the Family § 22.54, pp. 162-163). It is within the power of spouses privately to agree on property matters and withdraw the economic aspects of their marriage from the...