Kobylack v. Kobylack

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: PER CURIAM; COOKE
• Citation: Kobylack v. Kobylack, 477 N.Y.S.2d 109, 62 N.Y.2d 399, 465 N.E.2d 829 (N.Y. 1984)
• Decision Date: 14 June 1984
• Parties: , 465 N.E.2d 829 William KOBYLACK, Appellant, v. Nancy KOBYLACK, Respondent.

Page 109

477 N.Y.S.2d 109

62 N.Y.2d 399, 465 N.E.2d 829

William KOBYLACK, Appellant, v. Nancy KOBYLACK, Respondent.

Court of Appeals of New York.

June 14, 1984.

Marshall S. Goldman, White Plains, for appellant.

Joseph M. Buderwitz and Joseph J. Buderwitz, Jr., White Plains, for respondent.

OPINION OF THE COURT

PER CURIAM.

Special Term granted plaintiff-husband a divorce and directed distribution on a 72 to 28 ratio of the marital premises, household furnishings and automobile, but concluded that neither party was entitled to any share of the pension rights of the other. The facts and reasoning on which the distribution provisions of the judgment were based are reported at 110 Misc.2d 402, 442 N.Y.S.2d 392.

In a memorandum and order, both of which stated that its disposition was "on the law," the Appellate Division, 96 A.D.2d 831, 465 N.Y.S.2d 581, modified. Despite the statement that its disposition was on the law, however, the memorandum stated that "admitted at trial that he had explained to defendant that the money in the Thrift Fund was intended for the couple's retirement. Thus, it is clear that defendant, as well as plaintiff, had the expectation of the future enjoyment of the savings contained therein upon plaintiff's retirement". (96 A.D.2d at p. 832, 465 N.Y.S.2d 581.) On that apparently factual basis it modified Special Term's judgment by directing that defendant be paid a distributive award of 28% of plaintiff's Thrift Fund account, but made no mention of the defendant's pension rights.

On appeal to this court plaintiff argues that the Appellate Division's modification was in the exercise of discretion and constituted an abuse of discretion as a matter of law and that in any event it erred on the law in holding that the same percentage must be applied to all marital assets, and in failing to take into account the tax consequences of the distribution it ordered. The Appellate Division's order failed to state, as required by CPLR 5712 (subd. par. 1), whether Special Term's findings of fact were affirmed. That requirement should not be disregarded for, as the Legislature recognized in imposing it, intelligent review of the Appellate Division's order is hampered if we are not made aware of how it dealt with the facts. The omission does not, however, as it would have prior to adoption of the CPLR (see Rugg v. State of New York, 303 N.Y. 361, 102 N.E.2d 697), require us in every case to remit to the Appellate Division. Under CPLR 5612 (subd. ) we may now "look to any order of the Appellate Division and to its opinion" to determine whether it resolved factual issues or acted in the exercise of discretion in reaching its conclusion (Second Preliminary Report, Advisory Committee on Practice and Procedure p. 362; Matter of Nassau Educational Ch. of Civ. Serv....