Gittelson v. Gittelson

236 A.D.2d 588, 654 N.Y.S.2d 683, 1997 N.Y. App. Div. LEXIS 1539

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 24, 1997
• Status: Published

Opinion

—In an action for divorce and ancillary relief, the defendant former husband appeals, as limited by his notice of appeal and brief, from stated portions of a judgment of the Supreme Court, Nassau County (Kohn, J.), dated December 13, 1995, which, inter alia, made an award of equitable distribution, and the former wife cross-appeals from stated portions of the same judgment.

Ordered that the cross appeal is dismissed as abandoned; and it is further,

Ordered that the appeal is held in abeyance, and the matter is remitted to the Supreme Court, Nassau County, to make detailed findings to supplement its determination that the $210,000 was withdrawn from the husband’s pension and "utilized for the parties’ living expenses”, and to determine whether such amount encompasses a claimed mortgage debt of approximately $102,000; the Supreme Court, Nassau County, shall make its determination and file the same with this Court with all convenient speed.

Upon our review of the court’s equitable distribution determination we find that, contrary to the mandate of Domestic Relations Law § 236 (B) (5) (g), the trial court did not sufficiently set forth "the reasons for its decision” regarding its determination that $210,000 was withdrawn from the husband’s pension and "utilized for the parties’ living expenses” so that informed review thereof might be had (see, Capasso v Capasso, 119 AD2d 268, 273, 275).

Accordingly, we remit the matter to the trial court to make more detailed findings as herein directed. If the trial court be so advised, it may take further proof (see, Johnson v Johnson, 227 AD2d 948). We find, however, notwithstanding the defendant’s claims to the contrary, that he was not prevented by the trial court from fully presenting his proof.

The determination of the appeal is held in abeyance pending remittitur to the trial court for additional findings of fact and an expanded decision (see, Capasso v Capasso, supra, at 276). Miller, J. P., Sullivan, Florio and Luciano, JJ., concur.