| Bellizzi v Bellizzi |
| 2011 NY Slip Op 02507 [82 AD3d 1541] |
| March 31, 2011 |
| Appellate Division, Third Department |
| John J. Bellizzi, Jr., Respondent, v Patricia Bellizzi,Appellant. |
—[*1] Maynard, O'Connor, Smith & Catalinotto, L.L.P., Albany (Stephen C. Prudente of counsel),for respondent.
Egan Jr., J. Appeals (1) from that part of an order of the Supreme Court (O'Connor, J.),entered August 17, 2009 in Albany County, which denied defendant's request for, among otherthings, spousal maintenance, and (2) from an order of said court, entered June 29, 2010 inAlbany County, which, among other things, denied defendant's motion for spousal maintenance.
The parties were married in 1969. In October 2008, plaintiff (hereinafter the husband)commenced this action for divorce upon the grounds of the alleged cruel and inhuman treatmentand constructive abandonment by defendant (hereinafter the wife), and sought, among otherthings, equitable distribution of the marital property.[FN1]The wife's amended answer sought, as is relevant here, dismissal of the complaint and spousalmaintenance. In January 2009, Supreme Court issued a temporary order that directed the husbandto pay the wife monthly spousal maintenance pending resolution of the divorce action. A trialwas subsequently conducted in May 2009. At the close of proof on the grounds, the partiesagreed that Supreme Court would decide the financial aspects of the case based upon theirwritten submissions. However, when [*2]the parties could notagree on the documentation that would be provided to the court, the trial was scheduled toresume in August 2009. Subsequently, by order entered August 17, 2009, Supreme Courtdismissed the complaint finding that the husband had failed to prove any causes of action allegedtherein. Supreme Court determined that the equitable distribution and ancillary relief sought weremoot and canceled the upcoming trial on the financial issues. The husband appealed[FN2]and the wife cross-appealed from the August 2009 order. In January 2010, during the pendencyof the appeal, the wife moved for, among other things, spousal maintenance. In June 2010,Supreme Court denied her motion, finding that it had previously "declined to grant relief" on anyof the financial matters in its August 2009 order and that it lacked jurisdiction to consider theapplication. The wife also appeals from this order.
Initially, we are unpersuaded by the husband's assertion that the August 2009 documentissued by Supreme Court does not constitute appealable paper and, thus, the wife's appeal shouldbe dismissed. "An appealable paper is an order or judgment of the court of original instance" (Raymond Corp. v National Union Fire Ins.Co. of Pittsburgh, Pa., 46 AD3d 1251, 1252 [2007] [citation omitted]; see CPLR5512 [a]). Here, while the Supreme Court document entered in August 2009 is labeled a"decision," the language contained at the foot of the document—"soordered"—clarifies that it is an appealable paper (see People v Joslyn, 27 AD3d 1033, 1035 [2006]; compareRaymond Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa., 46 AD3d at 1252; Matter of Graziano v County ofAlbany, 12 AD3d 819, 820 [2004]).
Next, in addressing the merits of the wife's appeals, we agree that Supreme Court erred indismissing her spousal maintenance claim as moot when it dismissed the husband's action fordivorce. The dismissal of a divorce action because of lack of proof does not divest the court ofjurisdiction to hear an application for spousal maintenance when a temporary award ofmaintenance has already been sought or obtained (see Domestic Relations Law §236 [B] [8] [b]; Murphy v Murphy, 257 AD2d 798, 799 [1999]; King v King,230 AD2d 775, 775-776 [1996]; Forbush v Forbush, 115 AD2d 335, 337 [1985],appeal dismissed 67 NY2d 756 [1986]). Here, the wife sought and obtained an award oftemporary spousal maintenance during the pendency of the divorce action. Notwithstanding thatthe husband's complaint was ultimately dismissed, Supreme Court was not divested of itsauthority to consider and award permanent spousal maintenance (see Forbush v Forbush,115 AD2d at 337; compare Murphy v Murphy, 257 AD2d at 799).
We are not persuaded by the husband's argument that Supreme Court did exercise itsjurisdiction and consider the wife's maintenance request in its August 2009 order based onlanguage contained in its June 2010 order that it had previously "declined to grant" that request.The fact is that Supreme Court declined to award the wife spousal maintenance because it hadconcluded that it lacked jurisdiction to do so once the divorce causes of action were dismissed,rather than as a result of a substantive consideration of the merits of the request. Likewise, basedon the wife's amended answer, which requested spousal maintenance, we are unpersuaded thatshe failed to preserve her claim to spousal maintenance. Finally, the wife's argument with respectto the June 2010 order—that Supreme Court erred in failing to construe her motion as oneseeking spousal support pursuant to Family Ct Act article 4—was not raised beforeSupreme Court and, accordingly, is not properly before us (see Matter of Lee v [*3]Albany-Schoharie-Schenectady-Saratoga Bd. of Coop. Educ.Servs., 69 AD3d 1289, 1291 [2010]; Bender v Peerless Ins. Co., 36 AD3d 1120, 1121 [2007]).
Mercure, J.P., Rose and McCarthy, JJ., concur. Ordered that the orders are modified, on thelaw, without costs, by reversing so much thereof as determined that defendant's request forspousal maintenance was moot; matter remitted to the Supreme Court for further proceedings notinconsistent with this Court's decision; and, as so modified, affirmed.
Footnote 1: Supreme Court granted thehusband's motion, made at the commencement of trial, to amend the complaint to assert a causeof action alleging fraud in the inducement.
Footnote 2: In December 2009, this Courtgranted the husband's request to withdraw his appeal.