Carratu v. Carratu

New York Court of Appeals

Carratu v. Carratu

409 N.E.2d 929, 50 N.Y.2d 941, 431 N.Y.S.2d 455, 1980 N.Y. LEXIS 2494

CourtNew York Court of Appeals

DecidedJune 24, 1980

StatusPublished

Cited by3 cases

This text of 409 N.E.2d 929 (Carratu v. Carratu) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Carratu v. Carratu, 409 N.E.2d 929, 50 N.Y.2d 941, 431 N.Y.S.2d 455, 1980 N.Y. LEXIS 2494 (N.Y. 1980).

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Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

We cannot conclude, as a matter of law, that the evidence in this record was insufficient to support the determination of the Appellate Division that respondent wife was entitled to a divorce on the ground of cruel and inhuman treatment (Domestic Relations Law, § 170, subd [1]). The husband’s assertion that the dismissal of the wife’s prior complaint for a divorce on the same ground was preclusive or operated to bar the consideration in this proceeding of evidence submitted on the prior trial must be rejected. The prior determination would have barred a claim based solely on the same evidence; it did not, however, render that evidence inadmissible in the present proceeding or preclude relief in this proceeding based on that evidence supplemented by the additional proof of postfirst trial conduct of the husband.

Respondent wife’s contention that the order of the Appellate Division should be modified to increase the allowance of alimony and counsel fees cannot be considered inasmuch as she took no appeal from the order of the Appellate Division..

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed, with costs, in a memorandum.

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OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

We cannot conclude, as a matter of law, that the evidence in this record was insufficient to support the determination of the Appellate Division that respondent wife was entitled to a divorce on the ground of cruel and inhuman treatment (Domestic Relations Law, § 170, subd [1]). The husband’s assertion that the dismissal of the wife’s prior complaint for a divorce on the same ground was preclusive or operated to bar the consideration in this proceeding of evidence submitted on the prior trial must be rejected. The prior determination would have barred a claim based solely on the same evidence; it did not, however, render that evidence inadmissible in the present proceeding or preclude relief in this proceeding based on that evidence supplemented by the additional proof of postfirst trial conduct of the husband.

Respondent wife’s contention that the order of the Appellate Division should be modified to increase the allowance of alimony and counsel fees cannot be considered inasmuch as she took no appeal from the order of the Appellate Division..

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed, with costs, in a memorandum.

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Bluebook (online)

409 N.E.2d 929, 50 N.Y.2d 941, 431 N.Y.S.2d 455, 1980 N.Y. LEXIS 2494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carratu-v-carratu-ny-1980.

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