Renck v. Renck

Citation131 A.D.3d 1146,2015 N.Y. Slip Op. 06906,17 N.Y.S.3d 431
PartiesHelen RENCK, respondent, v. Gary RENCK, appellant.
Decision Date23 September 2015
CourtNew York Supreme Court Appellate Division

131 A.D.3d 1146
17 N.Y.S.3d 431
2015 N.Y. Slip Op. 06906

Helen RENCK, respondent,
v.
Gary RENCK, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Sept. 23, 2015.


[17 N.Y.S.3d 432]


Gary Renck, Cary, N.C., appellant pro se.

Elliott Scheinberg, Staten Island, N.Y., for respondent.


WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, CHERYL E. CHAMBERS, and JOSEPH J. MALTESE, JJ.

Appeals from (1) a decision and order (one paper) of the Supreme Court, Westchester County (Sam D. Walker, J.), dated December 10, 2010, and (2) a judgment of the same court dated November 1, 2012. The decision and order, made after a nonjury trial, inter alia, determined the parties' motion and cross motion for certain relief. The judgment, insofar as appealed from, among other things, (a) after a hearing, awarded the plaintiff a divorce on the ground of constructive abandonment, (b) upon the decision and order, awarded the plaintiff child support in the sum of $2,410 per month and net credits in the sum of $158,210 against the defendant's share of equitable distribution, and directed the defendant to pay 55% of the non-reimbursed medical and educational expenses for the parties' children, and (c), pursuant to a forensic evaluation dated October 4, 2012, awarded the plaintiff 50% of certain proceeds the defendant removed from his Washington Mutual savings account.

ORDERED that the appeal from the decision and order dated December 10, 2010, is dismissed, without costs or disbursements; and it is further,

ORDERED that the judgment is modified, on the facts, by deleting the provision thereof awarding the plaintiff net credits in the sum of $158,210 against the defendant's share of equitable distribution and substituting therefor a provision awarding the plaintiff net credits in the sum of $136,181.75 against the defendant's share of equitable distribution; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements.

The appeal from the decision and order dated December 10, 2010, must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the decision and order are brought up for review and have been considered on the appeal from the judgment ( seeCPLR 5501[a][1] ).

In a decision and order dated December 10, 2010, made after a nonjury trial in this matrimonial action, the Supreme Court mistakenly stated that an inquest on the grounds for divorce had been conducted and that an order had been entered awarding a divorce on the ground of constructive

[17 N.Y.S.3d 433]

abandonment. Thereafter, the defendant cross-moved to dismiss the complaint on the ground that no inquest had in fact been held. In an order dated October 4, 2011, the court, in effect, denied the cross motion and directed the parties to appear for an inquest on the grounds for divorce. Before that inquest was conducted, the defendant moved for leave to reargue and renew his cross motion to dismiss the complaint on the newly asserted ground that, prior to the nonjury trial, the plaintiff had not complied with certain pretrial procedural requirements.

The inquest on the grounds for divorce was conducted on November 1, 2011. At the inquest, the plaintiff testified about the facts underlying her allegation that the defendant had constructively abandoned her. The defendant's attorney “consented” to those grounds, but reserved the defendant's right to appeal the orders already made and did not withdraw the motion for leave to reargue and renew the cross motion to dismiss the complaint. At the conclusion of the inquest, the Supreme Court found that the plaintiff had established that the defendant had constructively abandoned the plaintiff.

In an order dated January 18, 2012, the Supreme Court denied the defendant's motion for leave to reargue and renew his cross motion. As to reargument, the court held that the grounds asserted had not been raised earlier and were therefore improper in a motion for leave to reargue. As to renewal, the court held that the defendant had not submitted any new facts or new law that would have changed its prior determination of the cross motion. Specifically, the court held that the defendant had not raised the procedural violation for more than one year after it had allegedly occurred and, in any event, had not demonstrated that he suffered any prejudice from the minor violation.

Thereafter, the Supreme Court entered a judgment which, among other things, awarded the plaintiff a divorce on the ground of constructive abandonment, child support in the sum of $2,410 per month, and net credits in the sum of $158,210 against the defendant's share of equitable distribution, directed the defendant to pay 55% of the non-reimbursed medical and educational expenses of the parties' children, and, pursuant to a forensic evaluation dated October 4, 2012, awarded the plaintiff 50% of certain proceeds the defendant removed from his Washington Mutual savings account. The defendant appeals.

While the defendant argues on appeal that the plaintiff did not establish constructive abandonment, he did not contest the plaintiff's...

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1 cases
  • Renck v. Renck, 2013-00416, 2015-07450, Index No. 7478/07.
    • United States
    • New York Supreme Court Appellate Division
    • 23 Septiembre 2015
    ...131 A.D.3d 114617 N.Y.S.3d 4312015 N.Y. Slip Op. 06906Helen RENCK, respondentv.Gary RENCK, appellant.2013-00416, 2015-07450, Index No. 7478/07.Supreme Court, Appellate Division, Second Department, New York.Sept. 23, 2015.17 N.Y.S.3d 432Gary Renck, Cary, N.C., appellant pro se.Elliott Schein......

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