Norgauer v. Norgauer

126 A.D.2d 957, 511 N.Y.S.2d 731, 1987 N.Y. App. Div. LEXIS 42067

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 23, 1987
• Status: Published

Opinion

—Judgment unanimously modified, on the law, and, as modified, affirmed, without costs, and matter remitted to Supreme Court, Erie County, for further proceedings in accordance with the following memorandum: In this divorce action, the court distributed marital assets without the benefit of any testimony concerning the financial circumstances of the parties or documents revealing the value of all of the claimed marital property. The court also failed to set forth the factors it considered and the reasons for its decision (Domestic Relations Law § 236 [B] [5] [g]). Thus, the judgment, insofar as it determines the property rights of the parties, is vacated, and the matter is remitted to the trial court for proper consideration and findings regarding the statutory factors (Domestic Relations Law § 236 [B] [5] [d]) following a hearing on all of the issues pertaining to equitable distribution (Diachuk v Diachuk, 117 AD2d 985, 986).

We cannot review the record on appeal submitted by the parties and make our own findings (see, Cappiello v Cappiello, 66 NY2d 107, 110; Wilson v Wilson, 101 AD2d 536, 538, appeal dismissed 63 NY2d 768, lv denied 64 NY2d 607) as the record contains numerous transcripts of examinations before trial and documents that were not received as exhibits at trial and, thus, are not properly a part of the record on appeal (see, Broida v Bancroft, 103 AD2d 88, 93; Matter of Yanoff v Commissioner of Educ. of State of N. Y., 64 AD2d 763). (Appeal from judgment of Supreme Court, Erie County, McGowan, J.—divorce.) Present—Doerr, J. P., Boomer, Green, Pine and Balio, JJ.