(Download) "Clarence M. George v. Jacqueline E. George" by Supreme Court of New York # eBook PDF Kindle ePub Free
eBook details
- Title: Clarence M. George v. Jacqueline E. George
- Author : Supreme Court of New York
- Release Date : January 21, 1970
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 64 KB
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[34 A.D.2d 888 Page 888] Memorandum: The proof before the trial court amply supports granting plaintiff a decree of divorce. The ground for the decree
was properly determined to be defendant's cruel and inhuman treatment of the plaintiff. Although the trial court made no finding
on the issue of abandonment, it was raised by the pleadings and was proved by the unexplained, willful and continued withdrawal
from cohabitation by defendant despite the repeated requests for its resumption by plaintiff. Abandonment is, therefore, an
additional reason for granting the decree (Diemer v. Diemer, 8 N.Y.2d 206; Mirizio v. Mirizio, 242 N. Y. 74; Matter of La
Penna, 16 A.D.2d 655). The court erred, however, in finding that defendant committed adultery. There was substantial uncontradicted
evidence that a male friend visited defendant wife on various occasions while plaintiff was absent from the home. This was
the only testimony submitted to prove adultery. The evidence of these visits was sufficient to prove opportunity. However,
adultery must be based upon clear and convincing proof of inclination and intent, as well as opportunity (Bosch v. Bosch,
275 App. Div. 1046; Braun v. Braun, 245 App. Div. 194). While the visits may be considered as further proof of cruel and inhuman
treatment, standing alone as they do, they are insufficient to support a finding of adulterous conduct. Defendant's contention
that the trial court's decision is insufficient in that it fails to set forth the facts upon which the court based its decision
is without merit. CPLR 4213 (subd. [b]) provides that a court's decision may be oral or in writing "and shall state the facts
it deems essential". The parties waived the filing of requested findings of fact, but such a stipulation does not dispense
with the requirement that the decision must contain the essential facts upon which the judgment is found. (See Conklin v.
State, 22 A.D.2d 481; Sager v. Sager, 21 A.D.2d 183.) The statute requires only that the ultimate or essential facts [34
A.D.2d 888 Page 889]
 "Clarence M. George v. Jacqueline E. George" by Supreme Court of New York # eBook PDF Kindle ePub Free){kind=link}