Orofino v. Orofino
| Citation | 215 A.D.2d 997,627 N.Y.S.2d 460 |
| Parties | Donna OROFINO, Appellant-Respondent, v. Joseph OROFINO, Respondent-Appellant. |
| Decision Date | 25 May 1995 |
| Court | New York Supreme Court Appellate Division |
Page 460
v.
Joseph OROFINO, Respondent-Appellant.
Third Department.
Page 461
Ricken, Goldman, Sussman & Blythe (Alan N. Sussman, of counsel), Kingston, for appellant-respondent.
John J. Lynch, Kingston, for respondent-appellant.
Before MIKOLL, J.P., and CREW, CASEY, YESAWICH and SPAIN, JJ.
SPAIN, Justice.
Cross appeals from a judgment of the Supreme Court (Torraca, J.) ordering, inter alia, equitable distribution of the parties' marital property, entered February 8, 1994 in Ulster County, upon a decision of the court.
The parties were married on September 18, 1977. After nine years of marriage the parties adopted a daughter born in 1986 and, later, a son born in 1989. Defendant was employed as a securities trader from the date of marriage to January 1989. 1 Prior to 1986 plaintiff worked sporadically as a nurse; after 1986 plaintiff was a full-time parent and homemaker.
Plaintiff commenced this action in June 1992 for divorce against defendant on the sole ground of cruel and inhuman treatment. Plaintiff also sought a judgment granting equitable distribution, exclusive occupancy of the marital residence, maintenance, custody of the minor children, child support and counsel fees. Defendant's answer, which contained general denials, was withdrawn in open court during the nonjury trial at which neither party sought nor was awarded maintenance.
Supreme Court found, that defendant, inter alia, had consumed extraordinary amounts of alcohol; was verbally abusive to plaintiff on a biweekly basis; was physically abusive and threw an ashtray at plaintiff causing a laceration to her scalp; threatened to commit arson; and placed the muzzle of a rifle to plaintiff's head and threatened to kill her. Supreme Court granted the divorce on the ground of cruel and inhuman treatment. Plaintiff was granted sole custody of the children with conditional visitation to defendant. Supreme Court also made findings and rendered a judgment on all ancillary relief. Both parties have filed notices of appeal; however, defendant has not pursued his appeal.
Plaintiff does not dispute Supreme Court's determination of separate/marital property, nor the value of any asset. Plaintiff [215 A.D.2d 998] does, however, contend that Supreme Court erred by failing to (1) consider marital fault as a factor in equitable distribution, (2) distribute all marital assets on a 50%-50% basis, and (3) correctly determine child support.
It is well settled that marital fault shall not be considered a factor in determining equitable distribution "[e]xcept in egregious cases...
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