Appellate Court Affirms Denial of Motion to Voluntarily Discontinue New York Divorce Case on First Day of Trial

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A court in Nassau County, New York ruled on multiple issues in a nonjury divorce trial, including child support, maintenance, and distribution of the marital estate. Both the wife, who was the plaintiff in the original proceeding, and the husband raised issues on appeal. The Appellate Division’s ruling in Turco v. Turco demonstrates one way in which appellate courts’ review of a divorce judgment is significantly limited, and one way in which trial courts have expansive discretion over a the conduct of a divorce proceeding.

The parties had been married for about 15 years when the divorce was finalized. According to the appellate court’s ruling, the plaintiff was at least partly responsible for “numerous prior adjournments and…extensive delays” in the case. The parties consented to the entry of judgment on some issues, including constructive abandonment as the grounds for divorce. The court denied a motion made by the plaintiff on the first day of trial to voluntarily discontinue the case. It issued a decision in November 2010 and a final judgment in March 2011.

The plaintiff appealed on numerous issues from the trial court’s judgment, including the denial of the motion for voluntary dismissal. Her appeal also addressed the amounts of child support and maintenance, the distribution of the defendant’s interest in a business, and a credit awarded to the defendant against amounts he paid towards the mortgage principle on several marital properties while the divorce case was pending. The defendant appealed the trial court’s failure to order the plaintiff to pay expenses on the marital residence she exclusively occupied.

First, the appellate court ordered the dismissal of any appeal of the portions of the judgment entered by consent of the parties. Since the plaintiff agreed to those portions of the judgment, she could not be “aggrieved” by them, and the court could not rule on them.

The appellate court then turned to the trial court’s denial of the motion for voluntary discontinuance. Under New York court rules, a plaintiff must obtain the court’s permission to discontinue a lawsuit once a trial has started. Here, the plaintiff moved for voluntary discontinuance on the first day of trial. The appellate court did not indicate what reason, if any, the plaintiff offered to the trial court in support of discontinuance. In general, courts should grant motions for discontinuance, unless “special circumstances” exist. Here, the trial court properly concluded that the plaintiff “was merely attempting to avoid an adverse order of the court,” and that “the defendant would be prejudiced by such discontinuance.”

A New York divorce case requires careful planning and preparation. Once you file a divorce action, the court has significant discretion over how to manage the proceedings. An experienced and skilled divorce litigation attorney, with knowledge of New York court rules and procedures, can help you understand your rights and guide you through the process. Ingrid Gherman has represented clients in divorce and other family law matters in the New York City area for three decades. Contact us today online or at (212) 941-0767 to schedule a confidential consultation to discuss your case.

More Blog Posts:

Appellate Court Adjusts Trial Court’s Distribution of Business Interests in New York Divorce Case, New York Divorce Attorney Blog, February 27, 2015

New York Judge Criticizes Spouse’s “Emotional Agenda” in Proceeding for Division of Marital Property, New York Divorce Attorney Blog, February 17, 2015

Prenuptial Agreement Requires Couple to Litigate Divorce in Israel, not New York, New York Divorce Attorney Blog, January 16, 2015


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