Holcomb v. Holcomb

Mahoney, P. J.

Cross appeals from a judgment of the Supreme Court (Dier, J.), granting defendant a divorce and ordering equitable distribution of the parties’ marital property, entered June 1, 1987 in Washington County, upon a decision of the court, without a jury.

The parties were married on April 1, 1972 and resided in the Village of Cambridge, Washington County. They separated in March 1983 and this action for divorce was promptly commenced by plaintiff. Defendant counterclaimed for divorce. No reply to the counterclaim has been interposed. Supreme Court struck the complaint and granted a divorce to defendant on her counterclaim. Supreme Court also ordered the parties to submit statements of proposed disposition (22 NYCRR 202.16 [d]) and advised that equitable distribution and related issues would be decided upon submissions and other documents in the record. By separate order, Supreme Court made its equitable distribution award. A final judgment upon both orders was entered and the parties cross-appeal therefrom.

The parties’ contentions on this appeal are limited to the equitable distribution award. However, it appears from the record that no proof was taken regarding the parties’ claims for divorce. Nor is there any documentary proof regarding either claim for divorce. Indeed, regarding defendant’s successful counterclaim for divorce, issue had not been joined by service of a reply. A divorce may not be granted by consent or default in the absence of any oral or written proof to satisfy one of the statutory grounds for divorce (Domestic Relations Law § 211). Thus, the judgment must be reversed and the matter remitted to Supreme Court.

Judgment reversed, on the law, without costs, and matter remitted to Supreme Court for further proceedings not inconsistent with this court’s decision. Mahoney, P. J., Weiss, Levine, Harvey and Mercure, JJ., concur.