Sullivan v. Sullivan

174 A.D.2d 862, 571 N.Y.S.2d 154, 1991 N.Y. App. Div. LEXIS 8360

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 13, 1991
• Status: Published

Opinion

—Harvey, J.

Appeal from a judgment of the Supreme Court (Fischer, J.) declaring plaintiff’s entitlement to a divorce, entered August 28, 1990 in Broome County, upon a decision of the court.

Following a jury trial in this divorce action, Supreme Court made findings of fact and issued a judgment stating that plaintiff was entitled to the divorce, but that a final judgment of divorce would not be issued until the resolution of ancillary issues. Although defendant timely filed a notice of appeal, we conclude that this appeal must be dismissed. Domestic Relations Law § 236 (B) (5) (a) specifically states that, in divorce actions such as the instant one, equitable distribution must be made in the final judgment of divorce. In the absence of a final judgment awarding equitable distribution, a finding of divorce is not effective. Accordingly, the "judgment” appealed from is nothing more than a decision stating the intention on the part of the court to divorce the parties in the future and, as such, is both nonbinding and nonfinal, as well as without legal effect. Because defendant cannot be aggrieved by such a "judgment” (see, CPLR 5511), dismissal of the appeal is proper. Although we recognize that we have considered appeals such as these in the past (see, e.g., McKilligan v McKilligan, 156 AD2d 904), we now fully see the futility of such a course and will not consider such an appeal if it is presented to us in the future.

Mahoney, P. J., Levine, Mercure and Crew III, JJ., concur. Ordered that the appeal is dismissed, without costs.