Stevens v. Stevens

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before MAIN
• Citation: Stevens v. Stevens, 484 N.Y.S.2d 708, 107 A.D.2d 987 (N.Y. App. Div. 1985)
• Decision Date: 31 January 1985
• Parties: Gloria A. STEVENS, Respondent, v. Donald B. STEVENS, Jr., Appellant.

Page 708

484 N.Y.S.2d 708

107 A.D.2d 987

Gloria A. STEVENS, Respondent, v. Donald B. STEVENS, Jr., Appellant.

Supreme Court, Appellate Division Third Department.

Jan. 31, 1985.

DeFrancisco, Menkin & Brunetti, Syracuse (John A. DeFrancisco, Syracuse, of counsel), for appellant.

Edmund J. Hoffmann, Jr., Cortland, for respondent.

Before MAIN, J.P., and WEISS, MIKOLL, YESAWICH and HARVEY, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the Supreme Court granting defendant a divorce, entered May 30, 1984 in Cortland County, upon a decision of the court at Trial Term, without a jury.

This appeal arises from a judgment of divorce granted to defendant on the grounds of the plaintiff's cruel and inhuman treatment and adultery. In addition to disposing of the parties' separate and marital property, the judgment directed defendant to pay: $100 per week spousal maintenance until the youngest child of the marriage, now 14, attains the age of 21; $80 per week child support for each of the parties' three children and all their medical, dental, optical, hospital and orthodontic expenses until they reach the age of 21; the mortgage, taxes and fire insurance on the marital residence until it is sold; and $4,000 in counsel fees, $1,812.31 in disbursements, $2,000 in economist and accountant fees, and $400 in pension appraisal fees. Plaintiff was also awarded exclusive use and possession of the marital residence until the youngest child becomes 21.

We disagree with but a few of the trial court's findings. Defendant correctly asserts that in determining the spousal maintenance award, the trial court neglected to speak to three of the 10 factors set out in section 236 (part B, subd. 6, pars. a, b) of the Domestic Relations Law. Nevertheless, because of the comprehensiveness of the record as it relates to these factors and the court's extensive factual findings, we have opted to review the judgment (see, e.g., Wilson v. Wilson, 101 A.D.2d 536, 538, 476 N.Y.S.2d 120; Duffy v. Duffy, 94 A.D.2d 711, 712, 462 N.Y.S.2d 240).

Factors 8, 9 and 10 were not discussed by the trial court. Factor 8 requires that regard be given to the contributions and services of the party seeking maintenance to the career or career potential of the other party (Domestic Relations Law, § 236, part B, subd. 6, par. a, cl. ). The court expressly found, however, without indicating what, if any, consideration it gave to the finding, that plaintiff had made "both direct and indirect contributions" of that character. With respect to the admonition of factor 9 that "the wasteful dissipation of family assets" be weighed (Domestic Relations Law, § 236, part B, subd. 6, par. a, cl. ), the trial court, again without elucidation, found as a fact that:

Plaintiff has been irresponsible with the finances of the parties over the past five years and in 1982 she made checks totalling over $9,000 to department stores and generated credit charges totalling over $4,000. In 1983 these charges averaged over $250.00 per week. To hide this compulsive spending she hid bank statements from the defendant.

Factor 10 calls for consideration of any other factor expressly found just and proper by the court (Domestic Relations Law, § 236, part B, subd. 6, par. a, cl. ). Defendant contends that under this catch-all provision, plaintiff's marital fault should have been taken into account and, as a consequence, the maintenance award precluded.

In fixing the amount of maintenance, we believe that plaintiff's marital fault is relevant (see McMahan v. McMahan, 100 A.D.2d 826, 827, 829, 474 N.Y.S.2d 974 Blickstein v. Blickstein, 99 A.D.2d 287, 293, 472 N.Y.S.2d 110). Here, beyond openly engaging in an adulterous relationship and threatening future involvement in similar affairs, plaintiff repeatedly berated defendant in the presence of his co-workers at his place of employment, his friends and his family; on a number of occasions she physically abused defendant, striking and scratching him, pulling his hair and even biting him twice; and in the course of breaking into his locked briefcase, she wounded him with a kitchen knife. Without recounting additional instances of marital fault established at trial, we find the circumstances already outlined...