Caso v. Caso

161 A.D.2d 683, 555 N.Y.S.2d 820, 1990 N.Y. App. Div. LEXIS 6466

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 21, 1990
• Status: Published

Opinions

—In an action for a divorce and ancillary relief, the defendant wife appeals from an order of the Supreme Court, Queens County (Leahy, J.), dated July 5, 1988, which granted the plaintiff husband’s motion to confirm the report of a Judicial Hearing Officer granting him a divorce on the ground of constructive abandonment, and denied her cross motion to disaffirm the report.

Ordered that the order is affirmed, with costs.

At the hearing, the plaintiff’s testimony made out a prima facie case of constructive abandonment, but was directly contradicted by the defendant’s testimony. When the determination of constructive abandonment is premised upon an evaluation of the credibility of the respective parties, the findings of the Judicial Hearing Officer, who heard and observed the witnesses, should be accorded great weight (see, Raso v Raso, 129 AD2d 692; Infosino v Infosino, 109 AD2d 869).

The defendant also contends that she was prejudiced by the admission of matters outside the pleadings into evidence. Particularly, although the plaintiff’s complaint attested to a refusal to engage in marital relations since June 1983, the Hearing Officer permitted testimony concerning the couple’s marital relationship before that time, going as far back as 1980. We find this argument to be without merit. The pleadings served their purpose of placing the defendant on notice as to the character of the testimony she could have reasonably expected (see, Murray v City of New York, 43 NY2d 400). Thompson, J. P., Lawrence and Kunzeman, JJ., concur.