Giannola v. Giannola
| Decision Date | 30 June 1981 |
| Citation | 109 Misc.2d 985,441 N.Y.S.2d 341 |
| Parties | Gloria GIANNOLA, Plaintiff, v. Jack GIANNOLA, Defendant. |
| Court | New York Supreme Court |
Lechleitner & Miller, Deer Park, for defendant; Bruce Miller, Deer Park, of counsel.
Goldstein & Rubinton, P.C., Huntington, for plaintiff; Peter D. Rubinton, Huntington, of counsel.
A crucial issue to be decided in this action, and one which appears to be an issue of first impression since the advent of the Equitable Distribution Law in New York (L.1980, ch. 281) is what weight is to be given to "Marital Fault" which brings about the termination of a marriage in considering equitable distribution of marital property, distributive awards and maintenance.
Plaintiff instituted an action for divorce alleging as grounds therefore, defendant's acts of adultery and constructive abandonment, as well as his cruel and inhuman treatment of plaintiff. Defendant's answer to the complaint neither admits nor denies the allegation of constructive abandonment. An amended verified complaint was served but no answer has been interposed thereto. Defendant alleges that he has consulted with his attorney who advises that defendant has no legal defense to the allegation of constructive abandonment. Accordingly, he moves for summary judgment granting plaintiff a divorce on said ground, and that all other relief be referred to the Family Court of Suffolk County for determination. Plaintiff opposes this motion contending that she should have her day in court as to all issues raised in the complaint.
The court grants defendant's motion for summary judgment on the issue of constructive abandonment, but rules that she is, in fact, entitled to her day in court on all issues raised in the complaint. The court further declines to transfer this action to the Family Court for determination of the financial issues incidental to this action.
In making an equitable distribution of marital property, or in making an award of maintenance to a spouse, whether permanent or temporary, the court must take into consideration certain enumerated factors and state its reason for making such awards with said factors in mind. DRL § 236-Part B(5)(d)(10) & (6)(a)(10), pertaining to equitable distribution of marital property, and maintenance, respectively, each state as a factor to be considered, "any other factor which the court shall expressly find to be just and proper."
With regard to maintenance, the court holds that "Marital Fault" is a factor to be considered under the so-called "Factor 10". Since this court sits as a court of equity, a party may be denied relief upon his failure to come before it with "clean hands" (See Christian v. Christian, 42 N.Y.2d 63, 396 N.Y.S.2d 817, 365 N.E.2d 849 (1977); Henderson v. Henderson, 63 A.D.2d 853, 405 N.Y.S.2d 857 (4th Dep't 1978); Polley v. Polley, 62 A.D.2d 986, 403...
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McMahan v. McMahan
... ... Kobylack, 110 Misc.2d 402, 408, 442 N.Y.S.2d 392, mod. on other grds. 96 A.D.2d 831, 465 N.Y.S.2d 581; Giannola v. Giannola, 109 Misc.2d 985, 987, 441 N.Y.S.2d 341). Consideration of fault as a factor, both with respect to maintenance and equitable ... ...
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... ... Reardon, N.Y.L.J., 7/23/81, p. 12, col. 1 Giannola v. Giannola, 109 Misc.2d 985, 441 N.Y.S.2d 341 Meyer v. Meyer, N.Y.L.J., 11/13/81, p. 17, col. 2 Kove v. Kove, N.Y.L.J. 11/5/81, p. 11, col. 1 ... ...
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M. V. R. v. T. M. R.
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