Naughton v. Naughton

92 A.D.2d 914, 460 N.Y.S.2d 128, 1983 N.Y. App. Div. LEXIS 17317

Opinion

In a matrimonial action, the plaintiff wife appeals from a judgment of the Supreme Court, Westchester County (Buell, J.), dated April 15, 1982, which, after a nonjury trial, dismissed her complaint. Judgment modified, so as to provide that the complaint is dismissed only as to plaintiff’s cause of action for a divorce on the ground of cruel and inhuman treatment. As so modified, judgment affirmed, without costs or disbursements, and matter remitted to the Supreme Court, Westchester County, for consideration of plaintiff’s additional and alternative demands for relief, in accordance with the following memorandum. On this record, we agree that plaintiff failed to prove her cause of action for divorce upon the ground of cruel and inhuman treatment by a fair preponderance of the evidence. However, we remit this matter for consideration of the ancillary issues of custody, child support, maintenance, exclusive possession and occupancy of the marital residence, and attorney’s fees (see Domestic Relations Law, § 236, part B, subd 5, par f; subd 8, par b; § 237, subd [a]; § 240, subd 1; Maulella v Maulella, 90 AD2d 535; Birnbaum v Birnbaum, 34 AD2d 772; Zahler v Zahler, 28 AD2d 925). Lazer, J. P., O’Connor, Brown and Rubin, JJ., concur.