Otto v. Otto

• Decision Date: 11 September 1989
• Citation: 150 A.D.2d 57,545 N.Y.S.2d 321
• Parties: Margaret OTTO, Respondent, v. Richard OTTO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 321

545 N.Y.S.2d 321

150 A.D.2d 57

Margaret OTTO, Respondent, v. Richard OTTO, Appellant.

Supreme Court, Appellate Division Second Department.

Sept. 11, 1989.

Wendy Rodes, Kew Gardens, for appellant.

Nicolosi & Sciacca, Bayside (Joseph J. Sciacca, of counsel), for respondent.

Before LAWRENCE, J.P., and HARWOOD, BALLETTA and ROSENBLATT, JJ.

BALLETTA, Justice.

The case at bar involves a situation which occurs on a daily basis in the courts of this State, to wit, the granting of judgments of divorce upon the default of one of the parties. Under the circumstances of this case, where the default judgment of divorce contains provisions for equitable distribution, maintenance and/or child support, the court should hold an inquest to enable it to grant a judgment which complies with the mandates of Domestic Relations Law § 236(B). The precise form of the inquest will be determined by the trial court in its sound discretion dependent upon the circumstances of the case and the nature of the default.

The parties herein were married on October 5, 1974, and have two children, Richard, born February 27, 1976, and Robyn, born June 9, 1978. The plaintiff commenced the instant action for divorce by the personal service of a summons upon the defendant on or about December 31, 1983. Subsequently a complaint, and thereafter an amended complaint were served and issue was joined in July 1984. In her complaint, the plaintiff sought a divorce on the ground of cruel and inhuman treatment, custody of the two infant children, exclusive possession of the marital residence located in College Point, New York, child support of $75 per week per child, maintenance of $100 per week, and equitable distribution of marital property.

The plaintiff was awarded child support pendente lite of $60 per week in an order of the Supreme Court, Queens County (Miller, J.), dated October 2, 1984. However, her requests for exclusive possession of the marital residence and maintenance pendente lite were denied. The court noted that the plaintiff and the children were living with her parents and that she was earning $200 per week. It was also noted that the marital premises was occupied by a tenant.

By an order dated June 27, 1985, the Supreme Court, Queens County (Berkowitz, J.), granted the plaintiff's motion to strike the defendant's answer unless he furnished a net worth statement within 20 days after the service of a copy of the order upon him. A copy of the order was served upon the defendant's attorney on or about July 16, 1985; however, the defendant failed to provide the requisite net worth statement.

A year and a half later, in January 1987 the plaintiff applied to the court for a judgment granting her a judgment of divorce on the defendant's default in furnishing the net worth statement, and awarding her various ancillary relief including custody of the two children, maintenance of $200 per week and child support of $300 per week, exclusive title and occupancy of the marital residence in Queens County and of a parcel of real property located in Stoney Creek, New York, counsel fees of $5,000 and arrears of pendente lite child support. She submitted no documentary proof and her affidavit was insufficient to support the relief requested. The defendant's attorney Ronald B. Hellman cross-moved to be relieved as his counsel.

The Supreme Court, Queens County (Zelman, J.), by an order dated February 17, 1987, stated that the plaintiff's "unopposed" motion was "denied with leave to put this matter on the uncontested matrimonial calendar". A hearing on the plaintiff's request for arrears of child support was set down for March 11, 1987, and the remaining issues were referred to the trial court. The court also stated, "The parties are directed to proceed to trial as expeditiously as possible". No mention was made of the cross motion of the defense counsel to be relieved, nor is it discernible from the record whether the papers on the cross motion were ever submitted to the court.

Thereafter, on or about February 27, 1987, a note of issue and a copy of Justice Zelman's order were served upon Mr. Hellman. No date was set down for the hearing directed by Justice Zelman; rather, the plaintiff submitted a proposed judgment together with proposed findings of fact and conclusions of law. A copy of the documents was purportedly served on Mr. Hellman; however, the date of service on the affidavits of service was left blank so it cannot be determined if, or when, they were served. No notice of settlement appears in the record.

In any event, the judgment of divorce, the findings of fact, and conclusions of law were signed by Justice Ambrosio on March 23, 1987. The judgment granted a divorce to the plaintiff on the ground of cruel and inhuman treatment, and, inter alia, (1) awarded her custody of the two children; (2) directed the defendant to pay maintenance of $200 per week for the plaintiff's lifetime and child support of $300 per week; (3) directed the defendant to transfer title to the marital residence and the Stoney Creek property to the plaintiff; (4) directed the defendant to provide major medical, hospitalization, dental and life insurance; and (5) directed the defendant to pay attorney's fees of $5,000. The judgment also granted the plaintiff an award for arrears in the sum of $5,880 despite the fact that there was no evidence that a hearing had been held thereon as directed by Justice Zelman. The court's findings of fact were limited to the cause of action for a divorce. A copy of the judgment was served upon the defendant on or about April 14, 1987.

The defendant eventually made a motion to set aside his default pursuant to CPLR 5015(a)(1) but only after the plaintiff had sought a number of ex parte orders seeking to enforce the provisions directing the transfer of the properties. The defendant's new attorney asserted that she had been retained in December 1987, that the defendant did not seek to set aside "that portion of the default judgment which granted Plaintiff a divorce", and that the defendant sought "a hearing to reassess the economic and equitable distribution portions of the case". The defendant provided a net worth statement which he had previously failed to supply, and in his affidavit, the defendant claimed that he had been suffering from thyroid disease, and that "the symptoms of this disease and the side effects of my medication caused me to fall into deep depression, suffer memory loss and loss of motor coordination". Justice Ambrosio, in the order appealed from, denied the motion to vacate the default.

In light of the generally liberal policy of vacating defaults in matrimonial actions (see, Antonovich v. Antonovich, 84 A.D.2d 799, 444 N.Y.S.2d 158) and for the reasons more fully set forth below, the economic provisions of the judgment herein must be set aside and the case remitted to the Supreme Court, Queens County, for a hearing on those issues (see also, Lucas v. Lucas, 109 A.D.2d 781, 486 N.Y.S.2d 293).

Domestic Relations Law § 236(B) requires any court making an award of equitable distribution, maintenance, or child support to consider certain enumerated factors (Domestic Relations Law § 236[B][5][d][1]-[13]; [B][6][a][1]-[11]; [B][7][a][1]-[5]. Moreover, in making any decision relative to equitable distribution, maintenance or child support, the court must set forth the factors that it considered and the reasons for its decision, "and such may not be waived by either party or counsel" (Domestic Relations Law § 236[B][5][g]; [B][6][b]; [B][7][b]; see also, Capasso v. Capasso, 119 A.D.2d 268, 272, 506 N.Y.S.2d 686; Jensen v. Jensen, 110 A.D.2d 679, 680, 488 N.Y.S.2d 189).

The legislative purpose behind this mandatory and nonwaivable requirement is twofold: to prevent the arbitrary exercise of discretion and to provide the basis for appellate review where discretion is improvidently exercised (see, Foster, Commentary on Equitable Distribution, 26 NY Law School L Rev 1, 50-51, 59 [1981]; Duffy v. Duffy, 94 A.D.2d 711, 712, 462 N.Y.S.2d 240). "Unless the trial judge reveals not only the factors he considered, but also his reasoning for the award made, intelligent review of the broad discretion entrusted to him is not possible" (see, O'Brien v. O'Brien, 66 N.Y.2d 576, 589, 498 N.Y.S.2d 743, 489 N.E.2d 712).

Thus, in Gainer v. Gainer, 100 A.D.2d 533, 473 N.Y.S.2d 223, where the husband appealed from a judgment of divorce rendered after a nonjury trial, this court held the appeal in abeyance and remitted the matter to the trial court for compliance with the statutory provisions, stating:

"Special Term failed to set forth either in its decision or judgment, the statutory factors it considered in distributing the parties' marital property (Domestic Relations Law, § 236, part B, subd 5, par d), and in awarding maintenance (Domestic Relations Law, § 236, part B, subd 6, par a), and child support (Domestic Relations Law, § 236, part B, subd 7, par a). It is mandatory that the court set forth these statutory factors together with the reasons for its decision (see, Hornbeck v Hornbeck, 99 AD2d 851; Durso v Durso, 99 AD2d 478, Nielsen v Nielsen, 91 AD2d 1016" (see also, Chasnov v. Chasnov, 131 A.D.2d 624, 516 N.Y.S.2d 708; Gape v. Gape, 110 A.D.2d 621, 487 N.Y.S.2d 111; Arvantides v. Arvantides, 97 A.D.2d 939, 468 N.Y.S.2d 728; O'Sullivan v. O'Sullivan, 94 A.D.2d 407, 464 N.Y.S.2d 583).

As a corollary, where the trial court fails to hear sufficient evidence to permit it to make a proper determination on the economic issues, the economic provisions of a divorce judgment will be vacated and the matter remitted for a new trial on those issues (see, Cassano v. Cassano, 111 A.D.2d 208, 489 N.Y.S.2d 243). For example, in Annis v. Annis, 147 A.D.2d 668, 538 N.Y.S.2d 278, the court remitted the matter to the Supreme Court, Westchester County, for a further hearing to determine whether certain assets were marital...