Levine v. Levine

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: All concur except MILONAS
• Citation: Levine v. Levine, 477 N.Y.S.2d 299, 102 A.D.2d 799 (N.Y. App. Div. 1984)
• Decision Date: 28 June 1984
• Parties: Herta LEVINE, Plaintiff-Respondent, v. Solomon LEVINE, Defendant-Appellant.

Page 299

477 N.Y.S.2d 299

102 A.D.2d 799

Herta LEVINE, Plaintiff-Respondent, v. Solomon LEVINE, Defendant-Appellant.

Supreme Court of New York, Appellate Division First Department.

June 28, 1984

J.L. Ellenbogen, New York City, for plaintiff-respondent. J.L. Kreisberg, New York City, for defendant-appellant.

Appeal from judgment of the Supreme Court, New York County, (Burton S. Sherman, J.), entered November 15, 1983, held in abeyance, and the matter remanded to the Trial Court for the making of findings of fact as required by CPLR 4213 and Domestic Relations Law Section 236B, subdivisions 5(d), (e), (f) and (g). While examination of the record discloses support for the conclusions of law reached by the Trial Court in its judgment, we cannot tell the precise findings relied on to reach those conclusions. Accordingly, we remand for such findings (CPLR 4213). Similarly, there are no specific findings with respect to the ten factors enumerated in DRL 236B, subd. 5(d), consideration of which under subd. 5(g) "may not be waived by either party or counsel". Hence, upon such remand, these findings must also be made.

All concur except MILONAS, J., who dissents in a memorandum as follows:

In my opinion, the majority's position herein is not consistent with the recent case-law authority and practice of this court. Since DRL 236B(5)(g) and 6(b) mandate that the court "set forth the factors it considered and the reasons for its decision", remanding a case for additional findings pursuant to subdivision 5(d) and 6(a) may be an appropriate remedy where such findings have not been made. (D'Amato v. D'Amato, 96 A.D.2d 849, 466 N.Y.S.2d 23; Nielsen v. Nielsen, 91 A.D.2d 1016, 457 N.Y.S.2d 888; Hanford v. Hanford, 91 A.D.2d 829, 458 N.Y.S.2d 418) However, "where, as here, the record reveals sufficient evidence to afford adequate review on appeal, the decision can be reviewed and modified by the Appellate Division...." (Sementilli v. Sementilli, App.Div., --- N.Y.S.2d ---- See also Wilson v. Wilson, App.Div., 476 N.Y.S.2d 120 Krivitzky v. Krivitzky, 94 A.D.2d 655, 462 N.Y.S.2d 461 Duffy v. Duffy, 94 A.D.2d 711, 462 N.Y.S.2d 240 ) Thus, it is clear that this court has repeatedly held that a remand for further consideration by the trial court is required only in those instances where the record is inadequate for a proper evaluation of the issues raised on appeal. In the situation before us, the record is more than ample to enable us to review the trial court's determination and, having examined the record, I am convinced that the evidence contained therein is sufficient to support the court's decision with regard to maintenance and distribution of the marital property. The wife here is in her mid-sixties and can scarcely be expected at that stage in life to return to a full-time job in order to support herself. The trial court determined that she is entitled to receive maintenance of $18,000, or...